Building a Culture of Consent

By Natalie Hanna

(Warning – this blog contains troubling themes and images related to sexual assault.)
Note: the contents of this blog are not intended to be legal advice and cannot be relied upon as such in your particular situation. See the list of resources at the bottom if you feel you need advice.

Jump sections:

As a lawyer…
The myth of the good victim
Build resources
The legal system
Building consent culture
Support services in Ottawa

Rape culture is the water in which many of us swim unknowingly until we are personally, acutely affected by it.  I am always disheartened when I hear someone (yes, still) comment that “rape culture” does not exist, and propagate the myth that “not getting raped,” is a matter of exercising “common sense” safeguards versus reinforcing the ethic that no one has the right to another’s body.

If you think that sexualized violence and rape culture are not embedded in global life, I invite you to reflect on this small selection of events in addition to the Jian Ghomeshi trial, with which you may have become familiar:

The captivity of Michelle Knight, Amanda Berry and Gina DeJesus by Ariel Castro.
Roosh V’s toxic Neomasculinity.
The trial for the death of Cindy Gladue.
Justice Robin Camp’s question, “Why couldn’t you just keep your knees together?”
Anita Sarkeesian’s online harassment.
The sexual assault and death of Rehtaeh Parsons.
The Bill Cosby Rape Accusations.
Residential school rapes, and the Stolen Sisters report.
The Robert Pickton murders and the Highway of Tears.
The Gay/Trans “panic” and the “Mistaken belief in consent” defences.
The kidnapping and rape of Yazidi and Chibok women and girls.
The “Whack the Complainant” approach.
Canada’s National Inquiry into Missing and Murdered Indigenous Women.
Rape classed as a crime against humanity when used as a tool of war.
The Comfort Women.
The high rates of sexual abuse of Trans persons.
Trump’s infamous “Grab her by the pussy” comment.
Mass sexual assaults in Tahrir square.
The Vanderbilt rape and the Brock Turner Stanford  “dumpster rape.”
The Last Tango in Paris butter scene.
The South Delhi bus rape and murder of Jyoti Singh.
Marina Nemat and the rapes in Evin Prison.
Officer Daniel Holtzclaw’s sexual assault conviction.
Cologne’s New Year’s Eve 2015/2016 mass sexual assaults.
Justice Kirk Sisson’s “consent from submission” ruling.
The Mandi Gray judgement.

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As a lawyer…

During my work as a family law lawyer* and personally… I have spoken with people who have been impacted at every level by assault and sexual assault. This includes not only dealing with their lived and repeated sexual assaults, but sexual assaults of those around them.

We think that sexual assault only happens to certain people, for certain reasons, and is committed by one type of predatory person. At the root of sexual  assault, however, is unwanted sexual contact forced on someone by another person. That, as it should be, is a broad and clear definition.

Nevertheless, as people struggle with their experiences, they have still asked me questions like whether it is still sexual assault if consensual sex becomes unpleasant, unsafe, or otherwise undesirable, and the person tells their partner to stop but is ignored.

I’ve been told countless stories of people being drugged or rendered unable to give consent by extreme intoxication and sexually assaulted by people known to them, whom they otherwise assumed to be trustworthy. These same people have told me that their abuser alleged that their inability to resist or remember what happened to them means it can’t be shown they didn’t consent. Extreme intoxication (by whatever method) can vitiate consent – that is, render it invalid.

People have repeatedly relayed to me that their partner does not consider sexual contact without obtaining consent to be sexual assault because the two are in a committed relationship or marriage.  I have been asked if it “counts” as rape within a relationship. Even if it happens every day. Even if they wake up to their partner having non-consensual sex with them. Even when there are injuries and hospital trips. It does. It counts.

I have spoken with profoundly traumatized women raped during war by people on both their own and the opposite side of conflict, and who have experienced sexualized torture.

I have spoken with women who have been forced to choose the object with which they will be assaulted.

I have spoken with people who fear they are unlovable because of being sexually assaulted.

I have spoken with people whose abusers threaten to out them as “crazy” due to their mental health issue, so that they lose credibility, respectability, and supports if they report their sexual assaults.

I have spoken with women sexually assaulted by minor and adult children in their own homes, who physically overpower them.

I have spoken with people whose lives were devastated when spouses sexually assaulted children, both their own and others. I have spoken with people who struggle to come to terms with the sexual assaults of their partners, children, and friends.

I have spoken with people who tell me they were not believed for reporting sexual assault from their same sex-partner.

I have spoken with people who know or fear that they have committed sexual assault themselves.

I have spoken with people in sex-work who are presumed to be “unrapeable” and to effectively consent to all sexual activity by virtue of their work, when they report assaults.

I have heard from some who report being counselled by the police to just “cool down” and make up with the partner who assaulted them, who have been asked what they did to provoke their assault, and who have been charged for defending themselves against an assault.

I have spoken with people with disabilities, People of Colour, and senior citizens, and people of other groups who tell me that on one hand, their bodies are treated as sexually vulnerable and / or available because of membership in these groups, and on the other, that no one loves them enough to care when something bad happens to them.

I have spoken with men who tell me they will never be believed, or told to “be a man” when their women partners sexually assault them.

I have spoken with people who have been counselled by their religious figures to reconcile with their abuser.

I have had information about people whose abusers have harmed and killed family pets and livestock to intimidate them from speaking about the abuse.

I have spoken with people who are shamed and stigmatized by their families, the families of their abusers, and within their communities for being sexually assaulted.

I have spoken with women who tell me that, unlike other women who are professionals who are “worth something” that they have no worth and it doesn’t matter what happens to them.

I have spoken to vulnerable women who have been deliberately lied to about their right to be free of assault and sexual assault under Canadian law.

I have spoken to doctors, lawyers, accountants, stay at home parents, athletes, teachers, counsellors, students, bus drivers, retail employees, and people from all walks of life who have been sexually assaulted.

I would like to stop having these conversations, but I never will.  I have found myself across the table many times from people who are reporting their sexual assaults for the first time, to a stranger. Almost all of these people have felt very alone. Many of them have felt needless shame at not being able to stop their assaults or remove themselves from the situations they are in. While speaking to resource people can be a first step to accessing help and resources, this can also be an extremely difficult and intimidating process, approaching a stranger whom you are unsure is safe to trust.

In that vein, I would like to encourage you to think of the following things that you can do when having conversations about sexual assault.
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The myth of the good victim

Don’t perpetuate the myth of the “good victim.”

It goes much deeper than not asking what they were wearing when it happened to them or why they were in that part of town.  It is not just erasing the mindset of “what did you do to provoke” the assault. It goes deeper than not putting the blame on the person who was assaulted to circumscribe their life and limit exercising their right to association and security of the person. It is more than even that most important element of putting the onus on each person not to commit assault.  Not perpetuating the myth of the good victim also includes not further imposing upon sexually assaulted people processes that have the potential to harm them.

Do not expect that a person who is sexually assaulted will be able to remember every detail of what happened to them, any more than anyone else who experienced a traumatic event would. The human brain responds to traumatic events in ways that affect memory. (1)

Don’t assume that just because one person’s sexual assault was not as violent or sustained as another person’s, that they are less deserving of sympathy and help. People can experience sexual assault and its effects in different ways, and the idea that one’s own assault was less “traumatic” than someone else’s may cause a person to minimize its impact on them and make them reluctant to seek help.

Don’t assume that just because someone states they were sexually assaulted by someone known to be a professional, a responsible person, or otherwise kind person that this person does not fit the “profile” of someone who would commit sexual assault. In the same way that people who are assaulted come from all walks of life, so can those who commit assault.

Do not assume you should not believe someone who says they are sexually assaulted by a long-term abusive partner because they do not leave them.  The “why did they stay” approach is particularly destructive because it ignores the effects of long term abuse and serves to push people back towards their abusers. It fails to take into account the deep psychological effects of long-term abuse in changing the way that the abused person perceives their identity, self-worth, roles, self-sufficiency, and agency. It ignores the fact that one of the goals of abusive behaviour is to cause the abused person to perceive that they have no way out of the situation. It fails to take into account the dissociation that some abused persons may experience making them unable to remember the reality of the events. It forgets that many people are deeply financially and emotionally reliant on their abusive partner.

I have spoken with people who have received ultimatums from friends and family that they must report their sexual assaults or risk losing the support of a relationship with those people.  Consider that forcing such an ultimatum on a person may make them too scared to reveal what is happening to them in the future and unwilling to trust others to help. While it can be important, at the time of assault, to act in a timely way to preserve evidence (see below) and provide a fresh account of what happened to the police, coercing someone to do this is another way of removing their agency.

Often, sexually assaulted people are pressured to complete “rape kits,” at the hospital. These are evidence collection kits that must be administered by someone trained to do so, intended to preserve evidence in case the person who committed the assault is caught and prosecuted. Aside from the fact that the rape kits are, themselves, invasive to someone who has just been assaulted, depending on where you live in the country, you may not be able to access one without travelling to another region.(2) Rape kits are often presented as the holy grail of evidence. While they have the potential to be a source of compelling physical evidence, as you will see below, if there is no one to investigate and charge, there is no way to match the evidence from a kit to an accused. Further, the presence of physical evidence may only demonstrate contact and not a sexual assault, without other information.

Don’t assume that it’s easy to report sexual assault. Few people report their sexual assaults, and those who do often feel undermined by the process.(3) The approaches to how sexual assaults are dealt with by law enforcement have been varied and problematic. Don’t assume that just because a sexual assault was deemed “unfounded” that a sexual assault did not occur.

Due to the historic problems of understanding that there is no one “correct response” from someone who has been sexually assaulted, complainants’ affects have often been read as too victimized, too aggressive, too flat, too distressed, too flippant, etc… for a sexual assault to have occurred.

Cases have been historically labelled as unfounded when they have not been taken seriously or investigated properly. Cases have historically been labelled as unfounded when the evidence available cannot confirm sexual assault.

In Ottawa, Ontario for example, a large number of reported cases over the past 15 years had been labelled “unfounded” by police. However, those numbers started to drop in 2013, when police started to code cases in which there was evidence, but insufficient evidence to lay charges, as “founded, not solved.” (4)

Don’t assume that there is just one right approach when it comes to dealing with sexual assault.
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Build resources

It’s often difficult to know what to do when someone discloses a sexual assault to you, especially if you have no experience of this. Although it is sometimes our first instinct, it is important not to push the person to make any quick decisions without information and support.

It is okay to thank the person for sharing this information with you and to acknowledge that it may have been difficult to do so.

Ask the person what they need.

Ask the person if they know whether they would like to take any particular action or whether they would just like to talk about it. You don’t have to have all the answers at your fingertips. You may just need to provide an ear.

The person disclosing to you may never have told anyone before. They may be comfortable or uncomfortable with other people knowing.

If the person is reporting sexualized abuse (or any type of abuse) that is part of a relationship, remember that the time around separation is often the most dangerous. Separation may cause an abusive person to escalate their behaviour.

The person may wish to seek resources to help them. Consider options like crisis lines, local rape crisis centres, and referrals from doctors for counselling. Many organizations can help you connect to counselling and to create safety plans. Safety plans include plans for adults, children, pets, and access to resources.

If the person is in distress, they may be seeking your help in accessing hospital care (such as to treat injuries, medicine to lessen the risk of infections, medicine to prevent pregnancy, etc…) or in speaking with the police or lawyers. It is okay to offer to accompany them if they would like. The person is allowed to bring support with them. They are allowed to ask questions about the process of consulting a third person. They are allowed to ask questions about what will happen to them at the hospital

If they need you to do so, help them to ask questions about what the process will entail and what will happen with the information and evidence gathered. Ask about whom to contact for next steps.

Sometimes, the person may just need someone they know with them to make the process less intimidating. Other times, they may not feel like they will be able to manage or remember everything that is happening without help. Ask the person how you can best help them with your presence, in the moment.

It is okay to share your own experience of sexual assault if the person asks, or to not speak of your own experience of sexual assault, depending on your comfort level and well-being.

It is also important to access resources of your own to help you if you are distressed from providing support to others. These can include the above resources as well as talking with those whom you trust to support you. People who are engaged in providing ongoing support to traumatized persons can experience depression, anxiety, vicarious trauma, and other symptoms that fall under the umbrella of compassion fatigue.
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The legal system

If the Ghomeshi trial has reinforced anything, it’s that it’s time to open the conversation about what those who interact with the legal system need.

We think we know the popular script for this. Until we see it up close, we think that a sexual assault occurs, the person who was assaulted seeks help, the police get involved to lay charges, and that the person committed the assault will be caught and face consequences. Based on my experiences as a lawyer, however, I can say this is not always the case.

Within our criminal legal system, a court requires that the Crown provide proof beyond a reasonable doubt of the offence. Sexual assault is an intimate crime that often cannot provide the type of corroborative proof required for a conviction. Often it is a matter of one person’s version of events being weighed against another’s. The physical evidence may also be ambiguous. Aside from the problems mentioned above in how sexual assault cases are investigated, remember that evidence of physical injury is 1) not always present during a sexual assault and 2) is not necessarily proof of lack of consent even in the most extreme circumstances. Even in the case of the death of Cindy Gladue, who suffered an extreme, internal, sexual, injury leading to death, to which no one could have consented, this was not ruled to be lack of consent by the courts. (5)

Further, complainants and the legal system do not understand each other well, and cooperate only in certain ways for limited purposes. Complainants are witnesses to the crime; the Crown questions them in order to elicit evidence against the accused, but the Crown does not represent them. The complainants are not parties (only the Crown and the defence are parties), and it has been an extraordinary legal rarity for them to have counsel to assist them. Complainants often do not understand what is expected of them from the legal system, and when they do, cannot necessarily provide it.

The legal system itself can bring further trauma into the life of a complainant. People whose sexual assaults have gone to criminal court will often speak of how they feel torn apart and revictimized on the witness stand. The accused’s right to a full defence is one that is fundamental to the way that the criminal justice system functions. During a defence against sexual assault, the complainant’s credibility will be vigorously attacked.

It is also possible to sue someone civilly for compensation related to the harms of assault, but the assault must be proven, the harms must be quantifiable, and the costs to bring a case forward can be prohibitive (as would be the legal costs for failure to win a case, which are often awarded against the unsuccessful party). This process also brings the complainant in direct contact with their abuser.

Aside from the problems with the criminal court process, take into account the impact on people going through a family court process or immigration tribunal. To say nothing of the potential additional barriers (language, physical, cultural, etc) that make it harder for a person to effectively prepare their case and convey their information.

One of the ways to seek a restraining order is to apply for one to the Family Court, under certain circumstances (please seek legal advice about whether this applies in your situation). To do so, an applicant must be able to convince a court that they have a reasonable, ongoing, fear that their spouse or former spouse, or non-spouse partner with whom they lived, may harm them, or harm children in their custody.

A major issue of concern for people before the courts who have been sexually assaulted is a lack of critical evidence available to them. Often, unless the assaulted person is able to provide a coherent narrative of what occurred, evidence of abusive behaviour (via police reports, hospital reports, documentation that can be proven in time as authentic), evidence of threats, corroboration from others, etc…a court will be unable to impose a restraining order.

Refugee claimants and claimants under humanitarian and compassionate grounds are also expected to lay bare the most personal details of their lives to prove that they meet criteria that would allow them to come to or to remain in Canada. When those details include vivid sexual assaults that must be recounted to tribunals who are not culturally trained in evaluating their veracity, this can be deeply retraumatizing. It can also be very upsetting for them, to participate in other processes where this information may be relevant. For example, if they have had the details of their abuse accepted by a tribunal, it is painful to know that other courts must re-evaluate that information, having no direct access to it from an earlier process.

Further, people often do not have a sense of the physical layout of the room in which they will be speaking with a judge or tribunal, or who else will be in the room. This may seem trivial to you, but it can be deeply intimidating for a person to find themselves face to face with the person who abused them in a small conference room instead of a larger courtroom where the parties both face the front.

It can be humiliating for someone who is intensely private to have to speak to someone (of their same or opposite sex) about what happened to them, even if the person they are speaking to is a judge and everyone else in the room is a legal professional. It is difficult for many to fathom the openness of most court appearances (though it is a foundational principal of our legal system), with anyone from the public being able to sit in, and anything being revealed in the courtroom later being open to the public to know. In certain circumstances, it may be important to ask a judge to consider closing the court to unnecessary persons, and making orders about what portions of the file will be public (though obtaining these orders can be difficult).

In Ontario, parties in family law cases are encouraged to participate in mediation.

Mediation is often seen as a tool to assist parties in avoiding protracted court cases and reaching a settlement of the ongoing issues. There are some who feel that mediation should never be used when the case involves components of abuse including sexual abuse, due to the risk that the proximity of the parties may cause the abused person further trauma, or due to the risk that the abusive person will try to mediate the question of whether or not the abuse happened.

If a person who has been abused by their partner feels that mediation will be helpful for them, they may wish to seek information about mediation that occurs when the parties are in separate rooms (called shuttle mediation), information about the mediation process and what it can and cannot produce, and counselling about how to deal with participation in the process. It is also very important to disclose the situation to a mediator in advance (accredited mediators should screen for domestic violence of all sorts) so that inappropriate behaviour within the mediation can be terminated (as well as the mediation process, if need be).

In cases that are driven by the litigants themselves, such as family law cases, an abusive partner may seek to use the legal system to exhaust the energy and resources of the abused person. The case will be subject to all of the same pitfalls above.

People with family law problems may not wish to start a formal court proceeding. Depending on their circumstances they may decide to seek assistance from lawyers in preparing a separation agreement (a contract that states how the two people will manage their legal issues). It is important, when working with a lawyer, that they understand what your challenges may be and what your goals are. It is the job of the lawyer to advise you about the law, but ultimately, you must decide which course of action you wish to take. A lawyer who does not know if there has been sexual abuse in your situation and who does not understand the potential impacts it has had on you, may not be able to fairly advise you.

Part of dismantling rape culture includes evolving approaches to how we handle sexual assaults within the legal system. Unfortunately, we do not do a good job asking people who have been assaulted and sexually assaulted what they need from this process.

We do not ask them whether they feel they would be best served by the current adversarial system or another model. As Mandi Gray said following the excellent verdict in her rapist’s trial, even when the legal system worked as it should, the judge’s supportive statements could not “un-rape” her.

Some people feel that they need the criminal justice system to provide consequences for the person who sexually assaulted them. They feel that justice is best served in this way.

Others may feel that this type of outcome does not necessarily give them what they need to move forward with their lives, preferring approaches that focus on remediation.

Some have called for restorative justice approaches that provide the complainant with more direct input into the process and the outcomes. These approaches also require the person who committed the harmful act to take personal responsibility for their actions. The process can also involve others who have been harmed directly and indirectly by the sexual assault.

Many complainants wish they had a lawyer to assist them during the criminal court process, in order to prepare them for what is to come during trial and advocate for them throughout the process.

I have spoken with complainants who want the police, Crown, and the Judiciary to be better educated about what is relevant and irrelevant about the crime of sexual assault.

These are only a handful of ideas, but ideas we should invite if we are to learn to be better responsive to sexual assault.
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Building Consent Culture

Teaching and seeking consent is everyone’s responsibility.

On January 21, 2017, we saw unprecedented numbers of peaceful protesters globally uniting their energy for the Women’s March on Washington. A major aspect of this powerful campaign was the clear and massive resistance of comments made by U.S. President Trump regarding sexual assault, and the threat of rollback of reproductive rights.

Locally and abroad, this kind of positive action can still be mirrored in equally important ways, such as the Hollaback! Campaign, the Vagina Monologues,  and the Slutwalk Movement. We have seen the Red Umbrella project advocate for sex workers’ rights. We have seen demonstrations in Brazil (the Women’s Strike) and in Argentina, against specific rapes and rape culture. We have also seen individuals, such as Emma Sulkowicz through her Mattress Performance (Carry That Weight), protest the handling of their own rapes.

The “No Means No” campaigns of earlier decades have given way to “Only Yes Means Yes.” Teach that it is not an awkward or unromantic thing to ask for consent. Teach that, without consent, no sexual contact is to occur. Teach the right to retract consent even after it was given.

Do not assume that silence equals consent. Be aware that there may be a power differential between you and the other person. You don’t know what they’ve lived. A sexual assault does not have to involve the type of physical trauma we have been taught is the hallmark of non-consensual contact. For reasons of their own, a person can be too afraid to say “no.” Have conversations ahead of time about what activities are acceptable and unacceptable, and then ask permission.

Get active consent. Keep asking: Is this person still a willing and eager participant?

Do not raise your children to be passive when it comes to their body autonomy. Let them know that no one has the right to access their body without consent and that neither do they have the right to access another’s body.

Within the limits of what is safe for you to do, have conversation with your friends and peers about this. Don’t give your friends a pass if they joke about sexual assault – let them know that you don’t find it funny.

Make space for the voices of all people who have experienced sexual assault to speak. Realize that people who experience different types of oppression, such as racialization, misogyny, sexism, poverty, transphobia and other types may interpret and process their sexual assaults in a way that is unlike your experience.

If you are in the position to develop policies or training in your workplace, develop clear statements against sexual harassment and assault.

If you are in a position to organize or attend talks on consent, get the word out to others! Participate in education programs. Support others in their journey to learning about consent in a positive way.

Learn what to do if you are a bystander to sexual assault.

Use your power on social media to help promote consent. Share things that promote consent among your networks.

Finally, share messages of support with those who need them. In preparation for this blog post, I asked several people what one thing they would like to share with persons who survived sexual assault. This is what they told me.

“We see you.”
“What happened to you is real.”
“It’s not your fault. You didn’t invite this.”
“I am not ashamed.”
“We’re here with you.”
“You know what’s right for you.”
“We are warriors. We need to see the strength in our scars.”
“You are not your rape.”
“You are my hero.”

Notes:

*I practice exclusively in family law.
(1) http://time.com/3625414/rape-trauma-brain-memory/
(2) https://news.vice.com/article/canada-has-a-rape-kit-problem
(3) http://globalnews.ca/news/1845136/why-dont-women-report-rape-because-most-get-no-justice-when-they-do/
(4) http://www.metronews.ca/news/ottawa/2016/03/27/unfounded-sexual-assaults-in-ottawa-shocking-says-adovcate.html
(5) http://www.cbc.ca/news/canada/edmonton/alberta-court-reviewing-acquittal-in-death-of-cindy-gladue-1.3750342

Thank you to R.B. Fairchild for review and editing.

Support services in Ottawa

If you need support for sexual assault in the Ottawa, Ontario area, here are some places to get information and assistance.
Sexual Assault Support Centre (SASC) of Ottawa:
Support Line: 613-234-2266
Office Line:  613-725-2160
https://sascottawa.com

Ottawa Rape Crisis Centre:
24-Hr Crisis Line: 613-562-2333
For more information or to arrange an appointment please email or call:
rukiya@orcc.net, 613-562-2334 x30
http://www.orcc.net

Centre d’aide et de lutte contre les agressions à caractère sexuel (CALACS Francophone d’Ottawa)
613.789.8096
http://www.calacs.ca/index.php

Ottawa Victim Services
Emotional support, practical assistance, referrals, and advocacy.
Tel.: 613-238-2762
http://www.ovs-svo.com

Sexual Assault and Partner Abuse Care Program (SAPACP) of The Ottawa Hospital
Tel.: 613-798-5555 x 13770
https://www.ottawahospital.on.ca/wps/portal/Base/TheHospital/ClinicalServices/DeptPgrmCS/Programs/SexualAssaultAndPartnerAbuseCareProgram

Independent Legal Advice for Survivors of Sexual Assault Pilot Program
Ottawa, Toronto, Thunder Bay
https://www.attorneygeneral.jus.gov.on.ca/english/ovss/ila.php

The Law Society of Upper Canada’s Lawyer Referral Service
(To arrange a 30 minute consultation with a lawyer in your region)
https://www.lsuc.on.ca/lsrs/

The Criminal Injuries Compensation Board
To apply for financial compensation (for victims and family members of deceased victims of violent crimes committed in Ontario).
http://www.sjto.gov.on.ca/cicb/

Ontario Assaulted Women’s Helpline (24 hour)
1(866) 863-0511
TTY 1(866) 863-7868
http://www.awhl.org/

Ottawa Coalition to End Violence Against Women (OCTEVAW) Resource List:
http://www.octevaw-cocvff.ca/crisis-resources

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