Columbia Journal of Gender and Law 23 (2):395-442 (2012)

Authors
Lucinda Ann Vandervort Brettler
University of Saskatchewan
Abstract
This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.
Keywords sexual consent  affirmative consent  voluntary agreement  equality rights  sexual self-determination  sexual autonomy  jurisprudence  criminal law theory  law reform  legal theory
Categories (categorize this paper)
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

 PhilArchive page | Other versions
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Autonomy, Consent and the Law.Sheila McLean - 2010 - Routledge-Cavendish.
Sexual Activity, Consent, Mistaken Belief, and Mens Rea.Peg Tittle - 1996 - Philosophy in the Contemporary World 3 (1):19-22.

Analytics

Added to PP index
2013-08-26

Total views
555 ( #11,382 of 2,421,632 )

Recent downloads (6 months)
117 ( #5,133 of 2,421,632 )

How can I increase my downloads?

Downloads

My notes