The Me Too Movement & The Evolving Interpretation of ‘Consent’

Featured in Robson Crim

Mar 5, 2020

5 min read

Updated: 15 hours ago

Author: J Doe

The 21st century has seen major steps forward in addressing sexual violence against women. For example, in 2006 the Me Too Movement swept across the world, infiltrating every social media platform and exposing the darkest corners of Hollywood, professional sports, and even the US Congress. While not an exhaustive list, these fields contained some of the most notorious instances of sexual harrasment and violence against women. Much time could be spent investigating the movement’s impact in these respective fields, but the focus here will be on Canada’s evolving legal interpretation of consent in the Me Too era. This will be done through an examination of R v. Goldfinch, a recent Supreme Court of Canada (SCC) decision regarding sexual history evidence.

In this case, Mr. Goldfinch and the complainant had dated for a period of time before splitting up and subsequently becoming what they described as “friends with benefits”.[1] In 2014, during this friends with benefit period, Mr. Goldfinch and the complainant were together one evening having drinks at his place with a roommate.[2] The complainant alleges she told Goldfinch that she did not want to have sex with him that evening, but Goldfinch claimed no memory of this statement.[3] Later in the evening, Goldfinch and the complainant kissed and decided to go to bed, and this is where disputed facts emerge.[4]

Goldfinch alleged that they both went to the bedroom, took their clothes off, and had consensual sex [5] He further alleged that the complainant woke him up later that night, stating that he had hit her in the head while they were sleeping.[6] He then claimed that he called a cab and told her to leave.[7]. In the explanation provided by Goldfinch there was no mention of any confrontation or violence, and the latter portion of the story explaining how he made the complainant leave certainly left some room for confusion.

Contrary to this, the complainant alleged that she declined another request to have sex with Goldfinch.[8] She then alleged that Goldfinch responded by striking her in the face and shoving her violently onto the bed.[9] She then removed her clothes out of fear and Goldfinch assaulted her.[10] After the assault, the complainant claims she called her own taxi and immediately called the police when she arrived at home.[11] Once at the hospital, they were able to confirm that she had swelling on both her face and shoulder.[12]

At trial, Goldfinch wished to put forward evidence of his ‘friends with benefits’ relationship with the complainant. He alleged that this provided important context for the jury to understand their relationship.[13] The trial judge agreed, and while there was instruction to the jury on how to perceive the friends with benefits evidence, the jury ultimately found Goldfinch not guilty.[14] On appeal, the court disagreed with the trial judge and their admitting of sexual history evidence.[15] The appeal court explained that “permitting the defence to lead evidence of previous sexual activity to prevent the jury from concluding that consent was unlikely was no different from admitting that same evidence to establish that the complainant was more likely to consent”.[16] The case was subsequently appealed to the SCC.

In the Supreme Court’s view, “[t]he only inferences to be drawn from the evidence of prior sexual activity could be those relying on the twin myths”.[17] In the world of evidence, twin myths is the idea that “women with sexual experience are more likely to consent to sexual activity or are less worthy of belief”.[18] This myth is especially applied in relationship settings.

The Supreme Court explained that sexual history evidence is often highly prejudicial, and should be subjected to a high level of scrutiny and established legal tests when a judge is deciding whether to admit it.[19] In the end, the Supreme Court dismissed the appeal and explained that the trial court should not have allowed the sexual history evidence for the purpose of context.[20]

While this decision is important, the Supreme Court also provided an excellent articulation of the evolution of consent in their analysis. They began with the historic standard of consent in Canada, explaining that “[u]ntil 1983, the fact that an accused was married to a complainant was sufficient to legitimize sexual assault; indeed, rape was defined as non- consensual sexual intercourse between a man and a female person who is not his wife”.[21] What emerged from this analysis is a reiteration of a modern consent definition, which the Me Too Movement helped to pioneer. The Supreme Court explained that “No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past”.[22]

The Supreme Court’s acknowledgement of the evolution of consent is an important step for the Canadian justice system. Their comments were also timely in light of recent missteps in the Canadian justice system. For example, in 2011 a Manitoba judge who was handling a sexual assault case stated the infamous line “sex was in the air” during his analysis.[23] These types of comments are rooted in outdated notions of consent which can be found in the Supreme Court’s analysis above. These comments also reinforce twin myth theory, and work against the progress that the Me Too Movement has accomplished.

The decision in Goldfinch was an important step in Canada’s legal system. However, just because the SCC has made these advancements doesn’t mean that their progress is shared universally. While outside the realm of this analysis, other recent SCC decisions such as R v. Barton highlight major issues that some provincial courts are having when addressing issues of twin myth theory, consent, and sexual violence against women. I believe that going forward, Canada should make strong attempts to continue training judges in all the provinces on these topics. While no single solution exists, this simply serves as a place to start.