Capacity to Consent to Sexual Risk, Elaine Craig, Dalhousie University – Schulich School of Law, 2013
Forthcoming in New Criminal Law Review, Vol. 17, Number 1, pps 103–134. © 2014 by the Regents of the University of California. All rights reserved.
In delineating the legal boundaries of capacity to consent to sexual touching, law makers and jurists must grapple with tensions between sexual liberty, morality, sexual minority equality interests, and public safety. Legal rules that stipulate that an individual cannot consent in advance to unconscious sexual activity or to sado-masochism, or that an individual under a certain age or with a particular intellectual capacity cannot consent to sexual touching have an impact on sexual liberty and should be justified. This paper argues that establishing these limits based on normative assessments about specific sexual acts poses too great a threat to the liberty interests of women and sexual minorities. A better approach is to accept that in sex, as is probably true of all complex human interactions, an accurate application of the definitional turns on the particular. Context is everything. No sexual act, including one that objectifies, is inherently harmful. The paper offers an alternative approach by suggesting that laws defining capacity to consent should be justified on the basis of assessments of risk rather than moral assessments about sex. This stands to circumscribe law’s limits on sexual liberty in ways that are better for women and sexual minorities. What this approach does not resolve is the paradox presented by the reality that although sex is inherently contextual, criminal laws prohibiting violations of sexual integrity should not be applied contextually. The paper explores how a recent legal ruling in Canada denying the capacity to provide advance consent to unconscious sex reveals this paradox. The discussion concludes by asserting that the failure of law to exclude morally inculpable unconscious sex between ongoing sexual partners reveals the limits of law and in doing so suggests the need to reevaluate the law’s conception of the relationship between sexual liberty and sexual integrity.