February 26, 1999
Supreme Court makes enlightened judgmentToronto Star
The Supreme Court has delivered a forceful judgment affirming the full protection of the law to a woman who says no to sexual contact.
The court ruled unanimously yesterday that it does not matter how a woman is dressed, how vigorously she fights off a man's sexual advances or what non-verbal signals he believes she is sending. If a woman does not consent to sexual activity, it is illegal.
The long-awaited judgment, while a relief of women's groups across the country, raises troubling questions about the outdated attitudes that still pervade the country's lower courts.
The accused, Steve Ewanchuk, won two acquittals from judges in Alberta on the grounds that his teenaged victim had given her ``implied consent.''
Justice John McClung of the Alberta Court of Appeal noted that the girl ``did not present herself in a bonnet and crinolines.''
The case stemmed from an incident in 1994. The complainant, who was 17 at the time, accompanied Ewanchuk to his trailer to discuss a job offer. She was wearing shorts and a T-shirt.
During the interview, he asked her for a massage, then gave her one during which he attempted to touch her breasts. She said no. He retreated, but continued making sexual advances. Each time, she clearly said no.
She did not, however, fight him off vigorously. She told the court she was afraid he would become violent.
An Alberta trial judge ruled that, by her behaviour, the teen had given implied consent. The ruling was upheld by the province's court of appeal.
Justice John Major, who wrote yesterday's Supreme Court judgment, was withering in his dismissal of this reasoning.
``No defence of implied consent to sexual assault exists in Canadian law,'' he said. ``To be legally effective, consent must be freely given.''
Justice Beverly McLachlin, one of two women on the country's highest court, went even further. ``Stereotypical assumptions lie at the heart of what went wrong in this case,'' she said. ``They no longer, however, find a place in Canadian law.''
Finally, women have the legal clarity they need to protect themselves from unwanted sexual contact.
But this case never should have reached the Supreme Court. If Canada's legal system truly reflected the principle of equal justice for all, no judge would listen to a lawyer who claimed that a sexual assault victim did not fight back hard enough or object sufficiently strenuously. If non-consensual sex were truly regarded as a crime, testimony about the appearance and physical attributes of the victim would be thrown out of court.
Robbery victims are not blamed for inviting attack. Fraud victims are not blamed for allowing themselves to be duped. Abduction victims are not blamed for letting themselves fall into the wrong hands.
But women who are sexually assaulted are still assumed to be, in some way, responsible for their fate.
The Supreme Court has sent the clearest possible signal that such thinking is offensive and retrograde. It deserves the nation's thanks.
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