Implied Consent and Sexual Assault: Intimate Relationships, Autonomy, and Voice

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, Michael Plaxton argues 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, Plaxton challenges 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, Implied Consent and Sexual Assault reconsiders the nature of mutuality in a world dominated by gender norms, the proper scope of criminal law, and the true meaning of sexual autonomy.

About the Author :
Michael Plaxton is associate professor of law at the University of Saskatchewan.

Review :
"Michael Plaxton takes a seemingly implausible and antifeminist argument in favour of implied consent in sexual assault, and makes it both plausible and feminist. He argues that women's autonomy requires the possibility of implied consent in conditions of mutuality within intimate relationships. Implied Consent and Sexual Assault is a nuanced, provocative, and important contribution to feminist conceptions of consent, sexual assault, and criminal law." - Brenda Cossman, University of Toronto "Michael Plaxton presents lucid, convincing, and profound arguments on the nature of autonomy, consent, mutuality, objectification, and the role of criminal regulation. A sophisticated and invaluable resource." - Jon Herring, Exeter College, Oxford "Drawing on the work of Jennifer Nedelsky, Martha Nussbaum, and Clare Chambers, Plaxton suggests that individuals may make autonomous decisions on a second-order level to relinquish some autonomy on a first-order level. When exit from a relationship is possible or when a voice within it promotes mutuality in shaping its contours, the law should allow for the legitimacy of implied consent. This need not endanger the criminalization of marital rape, as the private norms of the parties trump the existence of formal relationships. Plaxton's work is applicable to more than sexual assault law. Highly recommended." CHOICE