No means no

“Consent means ‘yes.’ The word ‘no’ does not mean ‘yes.’ The word ‘no’ coupled with fending off an attacker with a water bottle does not mean ‘yes.’ There is nothing ambiguous about it.” Those words aren’t from a parent to a teen daughter, a teacher to a sex ed class, an orientation leader to new students arriving at the co-ed university residences or a counsellor speaking to either the perpetrators or the victims of sexual assault. Instead, they form part of a scathing sevenpage ruling issued last week by Juliana Topolniski, an Alberta Court of Queen’s Bench justice, overturning provincial court judge Michael Savaryn’s earlier decision to acquit a 15-year-old boy of sexually assaulting a 15-year-old girl. “It is long beyond debate that in Canada ‘no means no,’ that ‘no’ does not require a minimal word or gesture, and that acquiescence or ambiguous conduct do not equate to consent,” she wrote, citing previous judgments from 1995 and 2014 in support. We know sexual touching happened between the boy and the girl because a school camera captured much of what happened, which included the boy grabbing the girl’s buttocks and breasts, trying to kiss her and forcing her into a closed doorway. The issue was whether the touching was consensual and whether there was a mistaken belief on the part of the accused that the touching was consensual. Savaryn didn’t believe the girl at all, as he made clear in his ruling. “The complainant tried so hard to laugh it all off, that I do not believe she was successful in communicating her discomfort,” he wrote. “The accused did not mean to touch the complainant sexually without her consent and nor was he reckless or willfully blind to her lack of consent.” Usually when appeal judges overturn rulings made in lower courts, they are worded as a polite disagreement between legal scholars, with firm but gentle remarks that legal errors were made in hearing the case and passing judgment. Topolniski’s ruling dispenses with such decorum. “Consent in the context of sexual activity is not a difficult concept,” she wrote. “It means just what the word implies. It is a voluntary agreement to engage in sexual activity. There is no such thing as implied consent. Consent can come from words or conduct. Similarly, lack of consent can come from words or conduct. If given, consent is not forever and can be withdrawn at any time by words or conduct.” In case Savaryn or anyone else still might not be getting the message, Topolniski added this: “the trial judge’s consideration on the complainant’s post-incident conduct is indicative of sexual stereotyping about how victims of sexual assault will behave. As an example, the requirement that a complainant raise the hue and cry has long since passed into the mists of time. There is no place for sexual stereotyping in sexual assault cases and no inference should be drawn about a complainant’s credibility on how a victim of sexual assault is to react to the trauma.” Nor was she buying the “I didn’t know she wasn’t consenting” argument Savaryn so easily accepted from the accused. “To successfully invoke the defence of mistaken belief in consent, an accused must have taken reasonable steps in the circumstances known to the accused at the time, to ascertain that the complainant was consenting,” Topolniski wrote. “Silence, passivity or ambiguous conduct does not constitute consent.” There have been too many cases, heard too many times over too many years, where old male judges think girls and women are nothing more than shameless harlots for the way they talk and laugh and dress and toss their hair while boys and men are merely hapless dupes, easily seduced by these temptations and unable to control themselves or their physical reactions. As a result, these judges throw the law out the window and rule that the boy or the man can’t be guilty of sexual assault because she asked for it and even if she didn’t, she had it coming anyway. The only thing that would have made Topolniski’s ruling better is if she were a man, not because she isn’t a qualified, conscientious judge, which clearly she is. Until more male judges reject such ridiculous rulings with the same ferocity Topolniski showed, the sexual stereotyping and the blatant disregard of the law will continue, to the detriment of the victims, the courts and all of society.

— Managing editor Neil Godbout