Sexual Assault in Spousal Relationships, 'Continuous Consent', and the Law, Honest but Mistaken Judicial Beliefs

39 Pages Posted: 15 Sep 2009 Last revised: 27 Feb 2010

See all articles by Melanie Randall

Melanie Randall

University of Western Ontario - Faculty of Law

Date Written: February 25, 2010

Abstract

Of those incidents of sexual assault that do get processed criminally, the spousal cases appear to provide jurists with the greatest degree of difficulty. This paper reviews some of the recent case law to illustrate the kinds of conceptual difficulties and legally flawed analyses which some judges are undertaking in relation to sexual assaults perpetrated in the context of intimate relationships. In these judgments, a number of specific themes are salient, including the mistaken judicial belief that the relational context is critical to assessing whether a sexual assault actually happened, or, put differently, the assumption that the relational context is critical to assessing whether what happened constituted a sexual assault.

More specifically, these mistaken judicial beliefs are tied to the traditional assumption, only relatively recently repudiated legally with the 1983 amendments to the definition of sexual assault in the Criminal Code, that marriage confers upon men presumed rights of sexual access to their wives. Some judges appear to be using this assumption as part of the framework for analyzing a criminal sexual assault charge. Tied to this faulty reliance on traditional assumptions, is the apparent mistaken belief evident in the judgments analyzed in this paper, that the legal test for consent differs in an ongoing and “viable” intimate (spousal) relationship, from the legal test applied in other contexts. Furthermore, the case law examined in this paper shows that in too many cases there is a judicial failure to acknowledge, let alone correctly apply, the reasonable steps provision of the “honest but mistaken belief in consent” defence. In fact, this provision is glossed over in some of the judgments, as if it simply does not exist in the Criminal Code. Finally, past sexual history seems to figure more prominently and slip in automatically in spousal sexual assault cases, insofar as some judges automatically read in the existence of an ongoing interpersonal relationship as creating a presumption of continuous consent.

Suggested Citation

Randall, Melanie, Sexual Assault in Spousal Relationships, 'Continuous Consent', and the Law, Honest but Mistaken Judicial Beliefs (February 25, 2010). University of Manitoba Law Journal, Vol. 32, No. 1, 2008, Available at SSRN: https://ssrn.com/abstract=1473153

Melanie Randall (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada

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