Sexual Assault and Advance Consent: A Feminist Judgment in R v JA
AbstractThis is the audio recording of a seminar given at the Kent Centre for Law, Gender and Sexuality, University of Kent, on 12 November 2015. The paper discusses a draft feminist judgment in R v JA  SCC 28 (Supreme Court of Canada), a spousal sexual assault case involving the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. The JA ruling has generated critique and debate amongst feminists and law and sexuality scholars that pits women's security interests against their sexual autonomy. The judgment endeavours to analyse whether it is possible to adopt an approach to advance consent that advances both of these interests, or whether they are ultimately irreconcilable. In doing so, it explores the proposal of Justice Fish, writing in dissent at the Supreme Court of Canada, that an appropriate balance might be that taken under s 75(2)(d) of the UK's Sexual Offences Act 2003, which creates a presumption against advance consent but not an absolute bar to arguing it. The author is a member of the Women's Court of Canada project, the first feminist judgment re-writing project internationally, and she also speaks to the potential value as well as challenges of feminist judgment writing.
- Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work for any purposs with an acknowledgement of the work's authorship and initial publication in this journal.
- Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.
- Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See The Effect of Open Access).