In R. v. Ewanchuk, the Supreme Court of Canada held that sexual touching must be accompanied by express, contemporaneous consent. In doing so, the Court rejected the idea that sexual consent could be implied. Ewanchuk was a landmark ruling, reflecting a powerful commitment to women's equality and sexual automy. In articulating limits on the circumstances under which women can be said to consent to sexual touching, however, the decision also restricts their automy - specifically, by denying them a voice in determining the rms that should govern their intimate relationships and sexual lives. In Implied Consent and Sexual Assault, Michael Plaxton argues that women should have the automy to decide whether, and under what circumstances, sexual touching can be appropriate in the absence of express consent. Though caution should be exercised before resurrecting a limited doctrine of implied consent, there are reasons to think that sexual assault law could accommodate a doctrine without undermining the sexual automy or equality rights of women. In reaching this conclusion, Plaxton challenges widespread beliefs about automy, consent, and the objectives underpinning the offence of sexual assault in Canada. Drawing upon a range of contemporary criminal law theorists and feminist scholars, Implied Consent and Sexual Assault reconsiders the nature of mutuality in a world dominated by gender rms, the proper scope of criminal law, and the true meaning of sexual automy.
Michael Plaxton is associate professor of law at the University of Saskatchewan.