Teaching Affirmative Consent

by Alexandra Molotkow

Did you know that affirmative consent has been the Canadian legal standard since 1999? It’s true!

In the summer of 1994, 49-year-old Steve Ewanchuk asked a 17-year-old girl if she’d be interested in a job selling his woodwork at the mall. The interview took place in his van, and then he invited her to his trailer to look at the product. He closed the door behind them, and appeared to lock it. He massaged her. When his advances began to intensify, she said “no,” but he persisted — so she kept saying “no,” but he persisted. In court, Ewanchuk relied on a defense of “implied consent”: she might have said no, more than once, but since she didn’t kick him, she must have meant “fine.”

Ewanchuk was acquitted. “The complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines,” stated Alberta Court of Appeal Justice John McClung, who upheld the decision. He noted that “the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal.”

Supreme Court Justice Claire L’Heureux-Dubé was having none of this. “It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.” The Supreme Court convicted Ewanchuk of sexual assault and held that there was no “implied consent” defense in Canadian law. Consent, it was established, has to be “affirmatively communicated by words or conduct.”

(John McClung, who was incidentally the grandson of Nellie McClung, said afterward in a letter: “the personal convictions of the judge, delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.” Her husband had committed suicide years earlier. It appears he wore a fedora.)

Prosecution rates for sexual assault are still notoriously awful, and it’s not as though the average Canadian would know about R v Ewanchuk. I didn’t until very recently — I didn’t even know that Canada observed an affirmative consent standard until the Jian Ghomeshi allegations came to light, and I read law professor Brenda Cossman in the Globe and Mail writing that “consent that is given only in advance isn’t determinative — consent is an ongoing process and a person must be in a state of consciousness to be able to withdraw that consent at any time.”

How would we know that was law? It’s not as though they teach us about consent during sex ed. I’m going to type that sentence again: it’s not as though they teach us about consent during sex ed. But, good news: this February (and following efforts by two amazing middle-school students, Tessa Hill and Lia Valente, to add consent to the curriculum), Ontario education minister Liz Sandals unrolled the province’s new sex ed curriculum, which is basically geared toward raising better people with greater respect for each other.

Starting from grade one, kids are taught about establishing and observing boundaries, as well as identifying healthy relationships. In grade 6, they learn about:

Being respectful but clear about your ideas and feelings; listening actively; interpreting body language, tone of voice, and facial expressions; respecting signals of agreement or disagreement and consent or lack of consent; and negotiating — all these are important skills. A clear ‘yes’ is a signal of consent. A response of ‘no,’ an uncertain response, or silence needs to be understood as no consent.

In middle school they learn more about gender identity and sexual orientation, as well as gender-based violence and sexual assault. I can’t recall any of these topics being taught when I was young. All I remember is being handed a laminated puzzle piece reading Penis fills with blood and having to find the matching “erection.”

Anyway, the revised Ontario sex education curriculum, which has angered religious groups but will still come into effect this September, is a great example and lovely weekend reading.