“Inferring” Consent in the Context of Rape and Sexual Assault
“Inferring” Consent in the Context of Rape and Sexual Assault
Susan Ehrlich
In spite of widespread reform to rape and sexual assault statutes in the United States and Canada over the last four decades, many theorists have pointed to the “androcentric cultural stereotypes” (Sanday 1996: 285) or the “traditional cultural mythologies about rape” (Comack 1999: 234) that can shape “discretionary decision making” (Caringella 2009: 97–98), often undermining the goals of rape law reform. Peter Tiersma’s work (1995, 2007) on consent within the context of sexual assault and rape law has made an invaluable contribution to our understanding of this disjunction between what sociolegal scholars have termed “law on the books” vs. “law in action.” In particular, Tiersma (2007: 95) argues that because consent is a mental state and not a speech act, it can only be determined on the basis of inferences, not direct observation. In other words, Tiersma contends that the meaning of consent is underdetermined by linguistic forms alone (i.e., it is not a speech act) and is thus dependent for its full interpretation on inferential processes. And, as McConnell-Ginet (2011, 2014) has demonstrated, ideological assumptions about gender and sexuality can play an important role in the processes that give rise to inferred meanings. In Tiersma’s words, “that we use inferences to determine consent is unavoidable. What is often objectionable is that in the context of rape law, these inferences may rest on questionable or offensive (some would say: patriarchal) assumptions” (Tiersma 2007: 93).
In the remainder of this essay, I draw upon data from a Canadian rape trial, R. v. Ewanchuk, 1995, as a way of exemplifying how adjudicators in rape trials can “infer” consent based on a complainant’s linguistic and non-linguistic conduct. What is particularly interesting about this case vis-à-vis Tiersma’s argument is the lower courts’ explicit use of the language of inference and implication in determining whether the complainant had consented or not. The two lower courts in the Ewanchuk case (the trial court and the Alberta Court of Appeal) acquitted the accused of sexual assault, after which the Supreme Court of Canada overturned this acquittal and convicted him. Significant about the initial acquittal is the lower courts’ opinion that the complainant had “implied consent” through what they termed her “conduct.” Indeed, the Alberta Court of Appeal, in upholding the trial court’s decision, defined “implied consent” as “consent by conduct.” Thus, while both lower courts found the complainant to be credible and her fear of the accused to be genuine, they at the same time determined that she had not communicated her fear to the accused. As the trial judge (i.e., the lowest court) said in his ruling: