There are man crimes. Take sexual assault, for example. I don’t have the stats but I will be really surprised if most people convicted of sexual assault weren’t men. For example, the Criminal Code has special rules making it more difficult to challenge complainants during trials for sexual assaults. The purpose of these rules is obviously to protect female victims. The law of sexual assault regulates largely male behaviour, and men should know this law well. The guy who was convicted after sex with his twin brother’s girlfriend should have known better. This story hit the media because he appealed his conviction, and the issues he is raising on appeal show how complicated and fact-specific sexual assault law can be. The lesson for men in Canada is to be extra careful and avoid sex if you’re not sure. Read below for specific suggestions.
Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.
In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.
Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.
If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.
As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)
Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:
- before any touching, ask the woman if she consents and do not touch until she says yes
- sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
- of course, it also includes the sexual act itself
- if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
- if you know you look like someone else she knows, tell the woman exactly who you are before any touching
- during any touching, constantly monitor the woman for signs she stopped consenting
- if you see any signs that she withdrew her consent, stop all touching immediately
- videotape everything (preferably in high definition) in case the facts are disputed in the future
- don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
- having two impartial witnesses during the whole process is even better
- DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
- above all, guys, treat women with respect and avoid random sexual relations