7 An Act to Amend the Criminal Code ( sexual assault), SC 1992, c 38.Did she secretly enjoy the sexual contact and is now lying to cover her shame? 2 How do we know that she did not consent before becoming unconscious and has no memory of that agreement? 3 Perhaps she imagined or dreamed the assault? 4 What if she ostensibly “agreed” by participating while unconscious? 5 Did she seduce the man by her bodily movements as she slept? 6ģUnderneath such questions lurk judgments about fault and responsibility: Was the woman unconscious through her own drug or alcohol abuse? Did she make unwise decisions about whose company to keep or where to lay her head down to sleep? Perhaps she was the author of the “mistake,” having erroneously believed that the man touching her was her husband or boyfriend? When a woman is unconscious, she becomes a blank page on which a phallocentric script can be easily written.
4 R v TS, OJ No 268 (Ct Just Gen Div) R v Spence, 2008 ONCJ 104, OJ No 987 (Ct Just Ge (.).3 See the dissenting opinion of Madam Justice Conrad at paras 83–86 in R v Ashlee, ABCA 244, (.).2 See for example R v JB (2003), 60 WCB (2d) 132 (Sup Ct Just) at para 33 where the trial judge desc (.).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 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. 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. Her paper picks up on the themes of resistance to rape law reforms, evocation of rape mythologies, and the misuse of “expert” evidence. 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.
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