Overbreadth in sexual assault laws

One of the discussions ongoing about military sexual assault cases is the breadth of conduct meant to capture, and potential ambiguities in how the law seeks to define a crime versus boorish or otherwise inappropriate behavior.  Here is an interesting piece based on developments in Canada.

Implied Consent & Sexual Assault: Introduction, Michael Plaxton, University of Saskatchewan – College of Law, November 27, 2015

Introductory Excerpt from Implied Consent and Sexual Assault: Sexual Autonomy, Intimate Relationships, and Voice (McGill-Queen’s University Press, 2015) (Forthcoming).


In R. v. Ewanchuk, the Supreme Court of Canada held that sexual touching must be accompanied by express, contemporaneous consent. In doing so, the Court rejected the idea that sexual consent could be “implied.” Ewanchuk was a landmark ruling, reflecting a powerful commitment to women’s equality and sexual autonomy. In articulating limits on the circumstances under which women can be said to “consent” to sexual touching, however, the decision also restricts their autonomy – specifically, by denying them a voice in determining the norms that should govern their intimate relationships and sexual lives. In Implied Consent and Sexual Assault, I argue that women should have the autonomy to decide whether, and under what circumstances, sexual touching can be appropriate in the absence of express consent. Though caution should be exercised before resurrecting a limited doctrine of implied consent, there are reasons to think that sexual assault law could accommodate a doctrine without undermining the sexual autonomy or equality rights of women. In reaching this conclusion, I challenge widespread beliefs about autonomy, consent, and the objectives underpinning the offence of sexual assault in Canada. Drawing upon a range of contemporary criminal law theorists and feminist scholars, I reconsider the nature of mutuality in a world dominated by gender norms, the proper scope of criminal law, and the meaning of sexual autonomy.

Note: A brief excerpt from the Introduction to my forthcoming book, Implied Consent and Sexual Assault, reproduced with the kind permission of McGill-Queen’s University Press.

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