LEAF and the Barbra Schlifer Commemorative Clinic Support Senator’s Proposed Amendment to Sexual Assault Legislation
On November 14, 2018, the Women’s Legal Education and Action Fund (LEAF) and the Barbra Schlifer Commemorative Clinic sent a letter to Prime Minister Justin Trudeau and Minister of Justice Jody Wilson-Raybould supporting Senator Kim Pate’s proposed amendment to Bill C-51. This amendment would provide much-needed provisions to ensure that the law of sexual assault in Canada provides meaningful protection for all women. The current language of Bill C-51 risks establishing unconsciousness as the threshold for incapacity to consent under the law. This would exacerbate existing barriers to justice for women who are sexually assaulted while intoxicated or women who have disabilities, both of whom are disproportionately targeted by sexual violence. Judges are in dire need of guidance as to how to determine whether women are capable of consenting in such circumstances. There have been cases in which the complainant was conscious during the sexual contact, but was unable to stand up, remember their address, or was vomiting profusely, yet judges have found that the complainant was capable of consenting. Senator Pate’s amendment would provide much-needed guidance on sexual assault law. Her amendment would include factors the judge should consider in determining whether a woman is capable of consenting, including:
- whether or not the complainant is able to appreciate the essential features of the sexual activity she is engaging in,
- whether or not the complainant is able to understand the risks and consequences of the sexual activity,
- whether or not the complainant is able to understand that she has the choice to engage in sexual activity; and
- whether or not the complainant is capable of communicating consent or communicating her withdrawal of that consent.
- The letter is available here.
- LEAF’s submission to the House of Commons Standing Committee on Human Rights and Justice and the Senate Committee on Legal and Constitutional Affairs is available here.
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