It’s All or Nothing: Consent, Reasonable Belief, and the Continuum of Sexual Violence in Judicial Logic

2020 ◽  
pp. 096466392094781
Author(s):  
Ashlee Gore
Keyword(s):  
Social Context ◽  
Sexual Assault ◽  
Sexual Violence ◽  
Common Law ◽  
Rape Myth ◽  
Reasonable Belief ◽  
The Social ◽  
Progressive Potential ◽  
Jury Decisions ◽  
The Continuum

This paper discusses controversies over the reasonable belief in consent defence to sexual assault shared by many common law jurisdictions. The implementation of a ‘reasonable’ belief standard has been heralded as a safeguard against rape myth narratives that endorsed men’s unreasonable but ‘honest’ beliefs in women’s consent. This paper argues that judicial constructions of reasonable belief in consent continue to apply notions of reasonableness abstracted from the social context of women’s experience of sexual violence and disconnected from sociological insights which contextualise both the encounter and jury decisions. Using a feminist sociocultural analysis (Gavey, 2005; Kelly, 1988), the successful appeal in the case of R v Lennox (2018 Queensland, Australia), against his conviction by a jury is discussed. The reasoning in the Lennox appeal reveals that overriding judicial constructions of women as incredible in their communication of non-consent, and the prevailing legal dichotomies of consent, and credibility as ‘all or nothing’, undo the progressive potential of the standard of ‘reasonableness’ in consent law and reinforce the phallocentrism of legal discourse.

scholarly journals Restating the common law? The Social Action, Responsibility and Heroism Act 2015

Legal Studies ◽  
2017 ◽  
Vol 37 (4) ◽  
pp. 577-598 ◽  
Author(s):  
James Goudkamp
Keyword(s):  
Social Context ◽  
Social Action ◽  
Common Law ◽  
Personal Injury ◽  
Large Network ◽  
Reasonable Care ◽  
The Social ◽  
The Common ◽  
The Law

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to contractual actions that allege a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

Charitable according to whom ? The clash between Quebec’s societal values and the law governing the registration of charities

2009 ◽  
Vol 49 (2) ◽  
pp. 277-295
Author(s):  
Kathryn Chan
Keyword(s):  
Social Context ◽  
Common Law ◽  
Real Life ◽  
Voluntary Sector ◽  
French Language ◽  
Societal Values ◽  
The Social ◽  
Cultural Minorities ◽  
The Common ◽  
The Law

In the course of considering the public’s views on the accommodation of cultural minorities in Quebec, the Bouchard-Taylor Commission has produced a valuable record of the views held by Quebec’s voluntary sector organizations, and the societal values that are important to Quebec. In particular, it has underlined Quebec’s strong commitment to three broad public objects — the advancement of the French language and Quebec culture, the encouragement of interculturalism, and the promotion of secularism — that are not recognized as charitable objects under the common law. The Bouchard-Taylor Commission has therefore provided a timely and relevant backdrop against which to consider the real-life implications of using the common law of charitable trusts to give meaning to the statutory concept of charity (bienfaisance) in Quebec. Based on her observations of the Commission experience, the author suggests that the disjuncture between the law demarcating Quebec’s charitable sector and the social context within which the sector operates has become significant enough to merit a reconsideration of this longstanding approach.

scholarly journals Some examples of treason in the 13th-century Serbia

2020 ◽  
pp. 21-44
Author(s):  
Ivana Komatina
Keyword(s):  
Social Context ◽  
Common Law ◽  
13Th Century ◽  
14Th Century ◽  
The Social ◽  
Written Law

The paper observes examples of treason, that is, infidelity in the 13th-century Serbia. The author intends to show how this procedure was sanctioned by common law, since the punishments for such crimes appeared in the Serbian medieval written law only from the 14th century, all that with the aim of getting to know as closely as possible the social context of medieval Serbia.

scholarly journals (R)évolution en matière de libéralités : L’exemple de la liberté testamentaire au Québec

2021 ◽  
Vol 65 (4) ◽  
pp. 609-652
Author(s):  
Christine Morin ◽  
Keyword(s):  
Social Context ◽  
Family Law ◽  
Common Law ◽  
Civil Code ◽  
Public Order ◽  
Material Sources ◽  
The Social ◽  
The Family ◽  
Need For Support ◽  
Legislative Measures

"In Canada, Quebec is the only province to have a legal system under which civil matters are regulated by a Civil Code and not by common law. Nonetheless, Quebeckers had unlimited “freedom of willing” until 1989. Henceforth, although Quebeckers remain free to determine via their last wills and testaments to whom they wish to bequeath their property, their margin of freedom is limited by legislative measures governing the survival of the obligation to provide support after death and the partitioning of the family patrimony. Such limitations on the freedom to bequeath are based upon a family interpretation of public order whereby the deceased must share the value of given property with his or her spouse and look after the immediate family’s need for support. Despite this, the Civil Code makes still no provision, as in French law, for an “undisposable estate” (réserves héréditaires) and it is fitting to question the reasons motivating this decision. The author attempts to identify the social context in which freedom to bequeath came to be limited. As such, she seeks to make known the material sources underpinning the adoption of the Bill that introduced the primary limitations on freedom to bequeath. Her study shows that within the framework of discussions on relevancy to limit this freedom, the issue being debated shifted its objective. Participants widened the initial debate then focused on the transmission of the patrimony by redefining it to encompass the questions of sharing family assets. This transformation contributes to explain how the law of successions in Quebec has drawn closer to family law."

The Social Roots of Sexual Violence

Contexts ◽  
2021 ◽  
Vol 20 (4) ◽  
pp. 72-73
Author(s):  
Kelsey J. Drotning
Keyword(s):  
Public Health ◽  
Sexual Assault ◽  
Sexual Violence ◽  
Public Health Perspective ◽  
Campus Sexual Assault ◽  
The Social ◽  
The Future ◽  
Landmark Study ◽  
Ecological Public Health

In their book, Sexual Citizens: A Landmark Study of Sex, Power, and Assault on Campus, Jennifer S. Hirsch and Shamus Khan seek to understand why campus sexual assault happens and what can be done to prevent it in the future by identifying its social roots. The book approaches sexual assault from an ecological public health perspective, but I think at its core, I think it is also an argument for dismantling power disparities within institutions.

scholarly journals Una mirada a las formas de subjetividad en mujeres víctimas de violencia sexual en el contexto de Buenaventura

2016 ◽  
Vol 7 (2) ◽  
pp. 55
Author(s):  
Eva María Lucumí Moreno
Keyword(s):  
Social Context ◽  
Sexual Violence ◽  
The Body ◽  
The Social ◽  
Las Mujeres ◽  
Valle Del Cauca ◽  
Patriarchal Power ◽  
Gender Subjectivity

Resumen: Este artículo presenta resultados de unainvestigación acerca de las formas de subjetividad presentesen tres mujeres negras víctimas de violencia sexualen el contexto del municipio de Buenaventura, Valledel Cauca. El presente estudio feminista posiciona a lasmujeres como sujetos enunciantes de sentidos y reflexionasobre la violencia sexual. Los hallazgos apuntan aidentificar tendencias y singularidades que surgen enlos discursos de las mujeres a partir de la experienciade violencia sexual vivida. Los resultados y la discusiónemanan de algunos de los núcleos interpretativos, queemergen en la investigación como las manifestacionesdel poder patriarcal, los sentimientos, la reinterpretacióndel cuerpo a partir de la experiencia y la resistenciaal contexto, caracterizado por la presencia del conflictoarmado. A partir de estas vivencias las mujeres reinterpretanlas relaciones que establecen con los otros y consus cuerpos. En ellas prevalecen sentimientos de culpa,temor y resistencia.Palabras clave: género, subjetividad, narrativas, mujeres,violencia sexual.A Look at Forms of Subjectivity of Women Victimsof Violence in BuenaventuraAbstract: This paper presents results of research onthe forms of subjectivity present in three black womenvictims of sexual violence in the context of the municipalityof Buenaventura, Valle del Cauca. In this feministstudy women are presented as subjects of enunciationand there is a reflection on sexual violence. The findingspoint to identifying both trends and peculiarities that canbe seen in women’s discourse due to the experience ofsexual violence. Results and discussion arise from someinterpretive nuclei, stemming from research on certainmanifestations of patriarchal power, feelings, the reinterpretationof the body from experience, and resistanceto the social context, characterized by the presence ofarmed conflict. From these experiences, women reinterpretrelationships with others and with their bodies.Feelings of guilt, fear and resistance prevail.Keywords: gender, subjectivity, narratives, women,sexual violence.

scholarly journals Some Constitutional Considerations on Sexual Violence against Women

1994 ◽  
Vol 32 ◽  
pp. 535
Author(s):  
Sheilah L. Martin
Keyword(s):  
Social Context ◽  
Sexual Assault ◽  
Sexual Violence ◽  
Violence Against Women ◽  
Sex Discrimination ◽  
The State ◽  
Constitutional Rights ◽  
Proper Treatment ◽  
Gender Specificity ◽  
Women's Lives

In this article, the author examines the ways in which women's constitutional rights can, and should, inform our understanding of sexual violence and mandate its proper treatment by the courts. The author argues that a purposive analysis of the rights guaranteed by s. 7 imposes an obligation on the state to protect women's lives, liberty, and physical and mental security against sexual violence. At the same time, the equality provisions of ss. 15 and 28 require that the gender specificity of sexual violence, and its relation to the larger social context of women's inequality, be addressed, with the result that sexual assault is recognized as a form of sex discrimination. Through decisions such as R. v. McCraw, determinations of women's individual and group-based rights, in light of their social context, are shown to be essential to a full realization of the Charter's claims to equality and to life, liberty and security of the person.

Complaints of Child Sexual Abuse: Too Easy to Make or Too Difficult to Prove?

2001 ◽  
Vol 34 (2) ◽  
pp. 149-168 ◽  
Author(s):  
Anne Cossins
Keyword(s):  
Sexual Abuse ◽  
Social Context ◽  
Child Sexual Abuse ◽  
Sexual Assault ◽  
Female Child ◽  
Law Reform ◽  
Historical Legacy ◽  
Child Sexual Assault ◽  
The Social ◽  
Sex Offences

This article analyses the social context in which the corroboration warning became entrenched in the child sexual assault trial, its historical legacy in terms of present day practice and the theoretical implications of this history and practice in terms of the sexed and gendered constructions of the female child complainant. In light of this analysis, the article discusses the implications for law reform of the child sexual assault trial, in particular the need to address the unique problems associated with prosecuting child sex offences.

scholarly journals The Social Reconstruction of Sexual Assault by Women Victims: A Comparison of Therapeutic Experiences

1986 ◽  
Vol 5 (2) ◽  
pp. 17-36 ◽  
Author(s):  
Chris Huntley Hutchinson ◽  
Susan A. McDaniel
Keyword(s):  
Sexual Assault ◽  
Sexual Violence ◽  
Women Victims ◽  
Social Reconstruction ◽  
Therapeutic Approaches ◽  
Self Help ◽  
The Social ◽  
Social Structural ◽  
False Sense ◽  
Self Help Groups

In this study, the conventionally accepted view of sexual violence against women as manifested by traditional therapy is contrasted with the feminist perspective represented by feminist therapy and feminist self-help groups for victims of sexual assault. The focus of the research is on the ways in which consumers of different therapies are taught socially to reconstruct their sexual assault experiences. On the basis of intensive interviews with victims of sexual assault or incest who have subsequently experienced therapy, the reconstructions of the assault encouraged by conventional therapeutic approaches are found to differ sharply from those developed in feminist modalities. The conclusion is that conventional therapies for victim of sexual assault tend to perpetuate the existing belief structure about rape and incest by isolating and blaming the victim. In contrast, feminist counselling and feminist self-help groups remove the woman's false sense of guilt, validate the woman's experience with sexual violence, and enable the victim to develop an understanding of the social structural context in which sexual assault occurs.

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