Friday, May 24, 2013
Elizabeth A. Sheehy (University of Ottawa - Faculty of Law (Common Law)) has posted Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women (Sexual Assault in Canada: Law, Legal Practice and Women’s Activism, Elizabeth Sheehy, ed., University of Ottawa Press, June 2012) on SSRN. Here is the abstract:
In this section, Elizabeth A Sheehy’s contribution focuses on one important feature of the 1992 feminist-inspired law reforms — the new “reasonable steps” requirement for the “mistaken belief in consent” defence. Her paper picks up on the themes of resistance to rape law reforms, evocation of rape mythologies, and the misuse of “expert” evidence. She reviews the legal interpretation of the revised “mistake of fact” defence, identifying judicial resistance to its implementation and the subtle re-emergence of rape myths in judges’ willingness to accept “mistake” defences when the complainant is unconscious. Like Lucinda Vandervort in Part I, Elizabeth urges Crown prosecutors to exercise vigilance to ensure that sexual assault law is interpreted consistently with its aims. To do so, they must challenge “expert” evidence introduced by defence on the question of women’s states of consciousness, remind judges of the “reasonable steps” requirement, expose rape myths embedded in defence arguments, and appeal decisions where judges mistakenly apply or fail to apply the requirement.