Jian Ghomeshi    

Canadian newspapers have been filled with features about sexual harassment in the wake of complaints made about a popular radio show host, Jian Ghomeshi, who was also featured on 170 radio stations in the US. He has lost his job after allegations that he had injured a woman. More than a dozen other women have accused him of physically or sexually attacking them. Late last month police formally charged him with four counts of sexual assault and one of choking.

Mr Ghomeshi has denied the allegations, insisting that his encounters were always consensual. His employer, the Canadian Broadcasting Corporation, has been criticised for not acting on complaints against its star employee.

This feverish atmosphere seems to have infected Canadian politics as well. Federal Liberal leader Justin Trudeau recently suspended two men in his own caucus over unspecified, but “serious personal misconduct” even though they had not been charged or even investigated.  

And in a parallel case, popular American TV star Bill Cosby has become embroiled in allegations of rape by a number of women, some of them dating back 50 years. He has denied them.

Ethics expert Margaret Somerville comments below on this seedy but very public trend.

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The voluminous discussion in the media of the Jian Ghomeshi “affair” has focused public attention on what constitutes consent to sexual intimacy. Confusion and complexity are involved, but the issue is an old one in the law. Cases such as a choirmaster’s criminal conviction for sexual assault for failure to obtain consent to sexual intercourse with a young woman, because she consented believing sex was treatment for her voice are studied in criminal law by most first year students.

When capital punishment was the penalty for rape, judges were reluctant to convict an accused except in the clearest cases and, in order not to do so, used a relatively easy to fulfil definition of what constituted consent to sexual intercourse. Consent to the “nature and quality of the act”, that is, to its carnal nature, was sufficient to avoid conviction.

This “narrow requirements” consent test was also used to assess the validity of a person’s consent to medical care. But that changed in the late 1970s to requiring “informed consent”, as the Supreme Court of Canada confirmed in 1981: The consenting person must be mentally competent; be given “the information that would be material to a reasonable person in the same circumstances”; and the consent must be voluntary, that is, not coerced.  

In the context of sexual intimacy, those requirements would mean consent will not be valid if either person is drunk, drugged, unconscious or asleep (no competence); does not disclose they have an STD, for instance, is HIV infected, if there is a risk of transmission (no disclosure); or is coerced (no voluntariness). Requiring informed consent also eliminates “implied consent” and makes the basic presumption one that there is no consent, unless it’s clear there is.

Recent Californian legislation shows this change to requiring “informed consent” to avoid charges of sexual assault. All schools receiving public funds for student financial assistance must now promulgate an “affirmative consent standard” for use in investigating and adjudicating sexual assault allegations. The legislation also provides that consent must be “ongoing” and “can be revoked at any time”, which echoes exactly the requirements for obtaining valid informed consent to medical care.

It’s not surprising that consent in the physician-patient relationship could be a model for that in a casual sexual relationship: both are intimate relationships, although in different ways, between strangers; both can be difficult to navigate when the parties’ understandings and expectations differ; both often involve a power differential; and both can involve anger and regret when one person feels deeply wronged by the other, and in both that person may turn to the law.

Because of the presumption of innocence, in a criminal charge the burden of proof of a lack of consent is on the prosecution, to the standard of beyond a reasonable doubt. Some courts, however, have treated proof of consent to sexual assault as a “true defence”, which places the burden of proof of consent on the accused, to the standard of the balance of probabilities. The Californian legislation, mentioned above, has been criticized as unjust for placing the burden of proof of consent on the alleged aggressor.

Consent is a complex reality and can be difficult to prove, so the allocation of its burden of proof is more than usually important, because the person with the burden loses, unless they fulfil that burden.

In some cases of sexual assault, consent is irrelevant to culpability. Consent cannot validate acts contrary to public policy or “public order and good morals”: No one can consent to have serious harm inflicted on them. Consequently, consent does not render violent sex which risks or does harm immune from criminal prosecution, as we can see, in a non-sexual context, in the criminal prosecution of some ice hockey players who intentionally injure others.

This raises another issue: the scope of a consent. Actions or creation of risks beyond what was consented to – “the normal risks of the game” – are assaults. It seems likely that such issues will arise in the Ghomeshi case, if it goes to trial on the basis of the five criminal charges – four for sexual assault, one for attempted strangulation – which have been laid.

An issue not discussed in the angst about the present so-called “rape culture” among young people and what to do about it, is the prevalence and impact of recreational sex – “hook-ups”, “no-strings-attached (NSA)”, “friends with benefits” sex – and its now seemingly unquestioned acceptance. Sexual intercourse has been desacralized and that has radically affected sexual conduct.

Sexual abuse of women (or men) is intolerable and must be severely punished, but we must avoid injustice and a failure of due process and fairness, as might have occurred in relation to the two Liberal MP’s who were sacked by Justin Trudeau, the leader of the federal Liberal Party, for alleged sexual misconduct.

Men must not become the contemporary “witches of Salem”, open to persecution on the basis of unproven evidence provided by unnamed accusers. Two wrongs don’t make a right.

Margaret Somerville is the Founding Director of the Centre for Medicine, Ethics and Law, at McGill University, in Montreal. 

Margaret Somerville is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor Emerita in the Faculty...