This thesis (110 pages) was submitted in March 1970 in partial fulfillment of the requirements for the degree of Master of Arts. The work was supervised by Professor Raymond Klibansky, McGill University.

This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of section 273.2 (...) in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, (...) rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at (...) length in “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are (...) worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

The author examines two proposals to expand legal recognition of individual control over physical integrity. Protections for individual autonomy are discussed in relation to the right to die, euthanasia, medical treatment, and consensual and assaultive sexual behaviours. The author argues that at present, the legal doctrine of consent protects only those individual preferences which are seen to be congruent with dominant societal values; social preferences and convenience override all other individual choices. Under these conditions, more freedom to waive rights of (...) physical integrity can only place socially vulnerable persons at great risk of abuse. (shrink)

The public interest in the administration of justice requires access to justice for all. But access to justice must be “meaningful” access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes (...) in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of legitecture to analysis of problems of institutional design in law. (shrink)

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R (...) v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether (...) a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

The exculpatory rhetorical power of the term “honest belief” continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a “belief” in consent was or was not reckless or wilfully blind. An accused's “honest belief” routinely begs this question, leading to a truncated analysis of criminal (...) responsibility, and error. The problem illustrates how easily old rhetoric perpetuates assumptions that no longer have a place in Canadian law. (shrink)

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal (...) responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being. (shrink)

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

The practice of screening potential users of reproductive services is of profound social and political significance. Access screening is inconsistent with the principles of equality and self-determination, and violates individual and group human rights. Communities that strive to function in accord with those principles should not permit access screening, even screening that purports to be a benign exercise of professional discretion. Because reproductive choice is controversial, regulation by law may be required in most jurisdictions to provide effective protection for reproductive (...) rights. In Canada, for example, equal access can, and should be, guaranteed by federal regulations imposing strict conditions on the licences of fertility clinics. (shrink)

The reasons for judgment by the Supreme Court of Canada on the appeal in Mabior (2012 SCC 47) fail to address or resolve a number of significant questions. The reasons acknowledge the fundamental role of sexual consent in protecting sexual autonomy, equality, and human dignity, but do not use the law of consent as a tool to assist the Court in crafting a fresh approach to the issue on appeal. Instead the Court adopts the same general approach to analysis of (...) the elements of aggravated sexual assault committed by fraud it used in 1998 in Cuerrier. Fifteen years later, it should be possible to re-conceptualize the problem in a more straightforward manner that reflects Charter values, fundamental common law principles, recent developments in sexual assault law, and the limitations and uncertainties of current HIV treatment and diagnosis. -/- Ironically, the two pronged legal test ultimately proposed by the Court -- non-disclosure of HIV-positive status and a “realistic possibility of transmission,” is likely to give false confidence to individuals who adhere to a regime of anti-retroviral treatment, use good quality latex condoms, and routinely conceal their HIV-positive status from their sexual partners. Research shows that HIV viral loads fluctuate widely in response to a myriad of factors. An inevitable consequence of reliance on the Mabior test will be accused who are shocked to find themselves charged under s. 273, charges that would not apply had they disclosed their HIV-positive status to their sexual partner(s). There are further practical consequences. Non-disclosure will tend to increase the risk of transmission because non-HIV-positive sexual partner(s) will not fully appreciate the actual hazards of improper condom use. As a direct result, careless sexual practices will be more common. And finally, the decision will not contribute to reducing the social stigma that haunts the lives of those who are HIV-positive -- even those who are skilled at deceit. That stigma will not be reduced or eliminated by a ruling that can be seen as tacitly validating stigmatization and fear by appearing to permit infected individuals to pretend they are not HIV-positive when they know or suspect this to be false. Deceit harms the human dignity of the deceived and deceiver alike, and does nothing to build authentic social trust and cohesion. For all these reasons, the problem on appeal in Mabior requires a different approach. This article proposes one. (shrink)

In this paper I argue that the rationality of law and legal decision making would be enhanced by a systematic attempt to recognize and respond to the implications of empirical uncertainty for policy making and decision making. Admission of uncertainty about the accuracy of facts and the validity of assumptions relied on to make inferences of fact is commonly avoided in law because it raises the spectre of paralysis of the capacity to decide issues authoritatively. The roots of this short-sighted (...) view are found in primitive mechanical models of relationships in the empirical and social world – those of objective causality and determinism. Insofar as it is believed that if we had sufficient data a clear and unequivocal answer would be available to each question, admission of uncertainty is seen as a sign of insufficiency, incompetence, impotence, and is avoided whenever a decision that must be seen to be based on valid reasons, cannot be avoided. Avoidance of some decisions, duplicity in others, is the result. -/- Decision-making must be restructured to recognize the provisional and context-bound validity and relevance of the models we use to conceptualize and order our understanding of phenomena, and to utilize this awareness as an instrument in the production of legal policies and decisions that will be authoritative precisely because they are honestly accurate and socially responsible. The paper makes a start on such a re-structuring of the legal process by exploring the implications of the observation that if law is to be “just”: 1) legal policy must be based on accurate information and rationally related to social goals; and 2) decisions applying policy to individual fact situations must be based on assumptions that are both relevant and accurate. -/- Reasons for determinations of fact must be given, otherwise the presumption that the trier of fact is “reasonable” is an unconditional licence to use private modes of logic and theories of social and natural science. What is not disclosed cannot be challenged on grounds of invalidity or irrelevance. Use of “objective validity” as a standard to evaluate conclusions made by the trier of fact in contentious cases would only serve to beg all important questions by concealing: 1) fundamental normative conflict, and 2) the limited nature and applicability of many validity claims. -/- Our use of the phrases “undue risk,” “public interest,” “reasonable,” and “necessary,” reflects the weight we choose to give conflicting social values and goals when we must make decisions in relative ignorance of all the consequences. “Objective criteria” are of limited utility in legal decision-making because their social meaning is derivative. Policy generation in the absence of any coherent conceptual-normative framework, use of vague terminology in legislation stating policy, and the absence of rational means to distinguish between individual cases to which decision-makers are required by law to apply policy, make it inevitable that many legal “decisions” made in the guise of determinations of objective fact, are charades, an arbitrary, capricious, intuitive, subjective (and thus private) use of public decision-making power. -/- Law must alter its aspirations and recognize that rational decision-making is a process that can occur only within parameters set by present knowledge and societal preference structures. Only by working with the constraints imposed by these parameters is it possible to achieve “just” decisions. Where no rational basis for differentiating cases exists, “individualized justice” must be avoided and public policy articulated in law applied uniformly to all cases in a class. The terms “reasonable” and “necessary,” used to describe policy and its consequences for specific cases, must be understood to represent provisional societal assessments, attempts to implement societal preference structures in the face of limited knowledge. Heightened awareness of the limited nature of our knowledge can only result in legal policies that have a more explicit normative basis. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and extensive (...) interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial awareness (...) of the evidentiary requirements for the availability of defences at common law and explicitly defines “honest belief” as a belief that is neither reckless nor willfully blind. As a consequence of these common law developments, the defence of mistake of fact with respect to age is rarely available as a matter of law. Properly used, these common law analytic tools afford minors and under-age sex-workers better legal protection from sexual exploitation than has often been achieved in practice over the last 25 years with the “reasonable steps” requirement under ss. 150.1(4) and (5). -/- Socio-economic inequalities ensure that aboriginal children and youth are disproportionately affected by the non-enforcement, under-enforcement, and selective enforcement of laws enacted to protect minors against sexual assault and participation in sex work. Continued reliance by prosecutors and judges on out-moded jurisprudence in the screening, prosecution, and disposition of these cases in the criminal justice system reinforces existing patterns of inequality and disadvantage and violates basic principles of human rights. (shrink)

This is a review and critical commentary on Michael Plaxton's 2015 book, Implied Consent and Sexual Assault, in which he proposes that the legal definition of sexual consent be amended to permit sexual partners to define the terms and conditions of sexual consent in accordance with private "normative commitments" between themselves. The proposed "reform" is intended to permit an individual to agree to be a party to sexual activity that would otherwise constitute sexual assault under Canadian law. For reasons explained (...) in the review, this reviewer concludes that Plaxton's proposal and the rationale he presents in support of its adoption are unpersuasive. (shrink)

The theme of the 6th biennial Radical Philosophy Association Conference, held at Howard University in Washington, D.C. in November 2004, was "Philosophy Against Empire." The U.S. imperial project, pursued by both Republican and Democratic administrations, has many dimensions, including military force and the mechanisms for its legitimation; the global economy and flows of money and people across borders; and biopolitics, or the disciplining of bodies through the micro-mechanisms of power apart from traditional forms of sovereignty. These issues are explored in (...) depth in these collected and revised essays from the Conference, along with the forms of subjectivity that can resist and respond to the alienation produced within and by the imperial project, toward the creation of an alternative global order. Authors include Karsten Struhl, Ann Ferguson, Edmund Byrne, David Cormier, Harry Targ, Jo-Ann Pilardi, Lucinda Joy Peach, Devin Zane Shaw, Tzuchien Tho, Eduardo Mendieta, Richard Schmitt, Richard Jones, Richard Peterson, Peter Amato, William McBride, Omar Dahbour, Kory Schaff, David Schweickart, and Carol Gould. (shrink)

Analyzing Oppression asks: why is oppression often sustained over many generations? The book explains how oppression coercively co-opts the oppressed to join their own oppression and argues that all persons have a moral responsibility to resist it. It finally explores the possibility of freedom in a world actively opposing oppression.

D. Blumbergi identifies three kinds of moral criticism: (i) of an individual for violating a moral practice in his society, (2) of a moral practice but not the individual who participates in it, and (3) of both an individual and the practice in accordance with which he acts ('practice-personal' criticism) (p. 348). According to Mr. Blumberg, successful derivation of a conclusive 'ought'-statement from statements about socially-created obligations would show how moral criticisms of type 1 are justified. Moral criticisms of type (...) 2 would still be allowed, but not those of type 3. -/- I discuss the following points made by Blumberg: (A) Criticism of type 1 is 'the most common kind of moral judgment' (p. 356); (B) Searle dispensed 'with the conclusive aspect of the conclusion, and with it the finality of the derivation, when it began to seem unrealizable' (p. 356); (C) 'It is impossible to derive conclusive "ought"-statements embodying our traditional moral outlook from statements about socially-created obligations, . . .' (p. 355); (D) 'Either we surrender the attempt to derive a conclusive "ought" -statement from statements about socially-created obligations, or else we must surrender our right to make practice-personal criticisms' (p. 357). -/- I argue that conclusiveness in judgments, both moral and non-moral, is always relative to the range of reasons weighed, the implications of action considered. Therefore 'ought' must always be taken to be context-bound just as moral principles are taken to be defeasible, elliptical. This interpretation of 'ought' and 'conclusive' as bound to a context, point of view or framework, is quite consistent with Searle's distinction between what is internal and external to an institution. (shrink)

Michel Foucault’s _History of Sexuality_ has been one of the most influential books of the last two decades. It has had an enormous impact on cultural studies and work across many disciplines on gender, sexuality, and the body. Bringing a new set of questions to this key work, Ann Laura Stoler examines volume one of _History of Sexuality_ in an unexplored light. She asks why there has been such a muted engagement with this work among students of colonialism for whom (...) issues of sexuality and power are so essential. Why is the colonial context absent from Foucault’s history of a European sexual discourse that for him defined the bourgeois self? In _Race and the Education of Desire, _Stoler challenges Foucault’s tunnel vision of the West and his marginalization of empire. She also argues that this first volume of _History of Sexuality_ contains a suggestive if not studied treatment of race. Drawing on Foucault’s little-known 1976 College de France lectures, Stoler addresses his treatment of the relationship between biopower, bourgeois sexuality, and what he identified as “racisms of the state.” In this critical and historically grounded analysis based on cultural theory and her own extensive research in Dutch and French colonial archives, Stoler suggests how Foucault’s insights have in the past constrained—and in the future may help shape—the ways we trace the genealogies of race. _Race and the Education of Desire_ will revise current notions of the connections between European and colonial historiography and between the European bourgeois order and the colonial treatment of sexuality. Arguing that a history of European nineteenth-century sexuality must also be a history of race, it will change the way we think about Foucault. (shrink)

The essence of religion was once widely thought to be a unique form of experience that could not be explained in neurological, psychological, or sociological terms. In recent decades scholars have questioned the privileging of the idea of religious experience in the study of religion, an approach that effectively isolated the study of religion from the social and natural sciences. Religious Experience Reconsidered lays out a framework for research into religious phenomena that reclaims experience as a central concept while bridging (...) the divide between religious studies and the sciences. Ann Taves shifts the focus from "religious experience," conceived as a fixed and stable thing, to an examination of the processes by which people attribute meaning to their experiences. She proposes a new approach that unites the study of religion with fields as diverse as neuroscience, anthropology, sociology, and psychology to better understand how these processes are incorporated into the broader cultural formations we think of as religious or spiritual. Taves addresses a series of key questions: how can we set up studies without obscuring contestations over meaning and value? What is the relationship between experience and consciousness? How can research into consciousness help us access and interpret the experiences of others? Why do people individually or collectively explain their experiences in religious terms? How can we set up studies that allow us to compare experiences across times and cultures? Religious Experience Reconsidered demonstrates how methods from the sciences can be combined with those from the humanities to advance a naturalistic understanding of the experiences that people deem religious. (shrink)

Dispositional compatibilists argue that a proper understanding of our abilities vindicates both compatibilism and the principle of Alternate Possibilities (the claim that the ability to do otherwise is required for freedom and moral responsibility). In this paper, I argue that this is mistaken. Both analyses of dispositions and abilities should distinguish between local and global dispositions or abilities. Once this distinction is in place, we see that neither thesis is established by an analysis of abilities.

Although moral distress is now a well-recognized phenomenon among all of the healthcare professions, few evidence-based strategies have been published to address it. In morally distressing situations, the “presenting problem” may be a particular patient situation, but most often signals a deeper unit- or system-centered issue. This article describes one institution’s ongoing effort to address moral distress in its providers. We discuss the development and evaluation of the Moral Distress Consultation Service, an interprofessional, unit/system-oriented approach to addressing and ameliorating moral (...) distress. (shrink)

Ann Whittle offers a fresh approach to questions about whether our actions are free and whether we are morally responsible for them. She argues that the answers to these questions depend on the contexts in which we make claims about our abilities and our control over our actions.

Examines how violence has been conceptually and rhetorically put to use in continental social theory.

Philosophical discussion about the reality of sensory perceptions has been hijacked by two tendencies. First, talk about perception has been largely centered on vision. Second, the realism question is traditionally approached by attaching objects or material structures to matching contents of sensory perceptions. These tendencies have resulted in an argumentative impasse between realists and anti-realists, discussing the reliability of means by which the supposed causal information transfer from object to perceiver takes place. Concerning the nature of sensory experiences and their (...) capacity to provide access to reality, this article challenges the standard categories through which most arguments in this debate have been framed to date. Drawing on the underexplored case of olfaction, I first show how the details of the perception process determine the modalities of sensory experiences. I specifically examine the role of measurement and analyze its influence on the characterization of perceptions in olfaction. My aim is to argue for an understanding of perception through a process view, rather than one pertaining to objects and properties of objects. (shrink)

This chapter argues that violence is and has always been a crucial component in the origin and maintenance of oppression. It explores how violence and the threat of violence constrain the actions of groups, harming the victims and benefiting the correlative privileged social groups. It argues that women as a group are oppressed materially through violence, and that there is a credible, psychologically effective threat of greater harm that is transmitted by the obvious material harm that they do suffer.

That there is no substance causation is often treated as the default position. My aim in this paper is primarily one of burden shifting: opponents of substance causation must do more to defend their position. After outlining the thesis I wish to defend, I present a simple argument for substance causation, arguing that opponents of substance causation owe us an explanation of why this argument is unsound. I end by answering objections to the view that substances can be causes.

Virginia Held argues that feminism has a distinct contribution to make to morality, one that will transform theory and society by beginning from the experiences of women and children. Her main thesis is that the mother-child relation should be taken as the primary moral relation and the model, at least initially, for all other relations in society. She spends the first four of the ten chapters of this book arguing for the distinctness of feminist moral theory; then chapters 5-7, chapter (...) 10, and the epilogue discussing the difference that taking the mother-child relationship as the paradigm for morality would make to theory and society; chapters 8 and 9 criticizing what she takes to be her major nonfeminist competitors, especially contractualist liberal theory. Regrettably, none of these projects are, I think, particularly successful or enlightening in their failure. (shrink)

The causal theory of properties is standardly combined with a realist's ontology of universals or tropes. In this paper, I consider an uncharted alternative – a nominalist causal theory of properties. I discuss advantages and disadvantages of the resulting theory of properties, and explore the Rylean understanding of causal powers that emerges.

Considerations upon the nature of properties and laws have led some philosophers to claim that the correct epistemic attitude with regards to the intrinsic properties of particulars is scepticism. I examine one particularly clear version of this line of argument, and contend that a serious form of scepticism is not established. However, I argue that the theories of properties and laws underlying the argument have unwanted metaphysical implications. These provide a stronger reason to jettison the analyses. I end by sketching (...) an alternative view that avoids these difficulties. -/- . (shrink)

I consider a grand, yet neglected proposal put forward by Shoemaker—a functionalist theory of all properties. I argue that two possible ways of developing this proposal meet with substantial objections. However, if we are prepared to endorse an ontology of tropes, one of these functionalist analyses can be developed into an original and informative theory of properties.

Through a phenomenological study of horse-human relations, this article explores the ways in which, as embodied beings, we live relationally, rather than as separate human identities. Conceptually this challenges oppositional logic and humanist assumptions, but where poststructuralist treatments of these issues tend to remain abstract, this article is concerned with an embodied demonstration of the ways in which we experience a relational or in-between logic in our everyday lives.

The notion of virtue in general, and courage in particular, has had a hard time integrating itself into the everyday lexicon of bioethics. Following the lead of enlightenment moral philosophy, which concentrates on the theory of right action as opposed to the ancient Greeks' emphasis on the development of good character, bioethics, with some notable exceptions, has tended to relegate consideration of the virtues to the sidelines of moral argument. Recently, however, there have been calls for the necessity of “moral (...) courage” in the context of clinical ethics. As nurses, physicians, and other health care professionals confront a variety of moral contexts in which the virtue of courage is invoked to "do the right thing," stand up for patients' rights, and uphold the ethical standards of their professions, they are increasingly reminded of their moral duty to exhibit courage in the face of institutional obstacles to the proper care of their patients. For example, a nurse's hesitation to approach a physician to request increased sedation for an agitated patient out of fear of retaliation is represented in one article as a lack of courage.In this paper we offer a critical assessment of such invocations of courage. While we find courage to be an indispensable virtue in some challenging contexts, in other settings we find invocations of courage to be both an unfortunate endorsement of an oppressive status quo that can divert attention from the real problems and an undesirable and potentially destructive strategy within health care institutions whose goal is medically excellent and morally good clinical practice. As we shall argue, a call to virtuousness is not always virtuous. (shrink)