Friday, September 7, 2018
Jennifer Koshan (University of Calgary - Faculty of Law) has posted R v. J.A. ((2018) 30(2) Canadian Journal of Women and the Law) on SSRN. Here is the abstract:
This Women’s Court of Canada judgment considers the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. The Supreme Court’s 2011 ruling in JA generated critique and debate amongst feminist and law and sexuality scholars that pitted women's equality and security interests against their affirmative sexual autonomy. The Women’s Court judgment analyzes whether it is possible to adopt an approach to advance consent that protects or at least balances all of these interests. My particular focus is the spousal sexual violence context, where courts have often interpreted the sexual assault provisions of the Criminal Code to the detriment of women’s sexual integrity and equality, yet where arguments about affirmative sexual autonomy have also predominated. Taking a harm-based approach to criminality that considers both negative and positive sexual autonomy, I conclude that advance consent should not be considered valid without certain legal safeguards being put into place. The judgment – which was originally published in 2016 and has been edited for length – is accompanied by a postscript where I reflect on the case from the fictional standpoint of a retired judge.