From class to class, I'm continuously baffled at how much the seemingly simple concept of consent is contorted in a multitude of ways in a multitude of circumstances. Although consent, sexual assault and it's surrounding legal realm can be brought down to it's fundamental roots of "no means no" vs. "yes means yes", there is still so much legal indeterminacy from case to case that it is clear it will be a while before productive, consistent solutions will come about.
Lise Gotell's lecture on Wednesday regarding Canadian sexual assault law and feminist law reforms in a neoliberal context touched on this legal indeterminacy, acknowledging how the inconsistencies of sexual assault laws are even further convoluted and harmful in light of HIV non-disclosure.
What is so completely bewildering and disheartening is how much of a debate surrounds the concept of consent and how, and Lise said, there is a hierarchy in terms of individual responsibility surrounding sex in itself. Sexual assault infringes upon consent and one's ability to choose, and secondary sexual assault occurs when criminal law twists and narrows the definition of consent even further, invalidating individual experiences. The justice system aims to define exactly what is criminal and what is not criminal, but through that process they successfully enforce over-criminalization, stigmatization, excessive gendering, and potentially construe how they even acknowledge consent in the first place. While this system attempts to have a specific, detailed method of dealing with sexual assault cases, the inconsistent application of these approaches in a neoliberal context ends up doing more harm than good.
Although feminist law reforms have worked to acknowledge and resolve deep systemic issues within the justice system, it became clear in Lise’s lecture that sometimes these issues were deepened with these reforms. It begs the question- if we are looking for serious systemic and institutional refining that would require feminist influence, is it possible for that progress to be productive and have thriving, positive results? Perhaps there needs to be even more feminist involvement to ensure that these specific and extensively precise concepts have consistent cases to case applications. It’s clear that there is no blanket solution, and throughout this class I’ve come to the conclusion that wide spanning resolutions just aren’t possible. Any thoughts?
Our last two topics have more or less brought me to a similar point, in questioning how useful legal reform is. As Cahill brought up in the article that we covered a few weeks back, the 2nd wave brought the idea of consent into focus which has been significant as a point of legal reform. Something I feel has come through in the readings is that from that point, a lot of the law's development has been stuck on consent. And not necessarily productively; perhaps rather than having conversations about different problematic aspects, we've just been re-shaping the law of consent. This is not to say the progress that has been made are not laudable. However like Lise talked about on Wednesday, this extensive focus and reshaping has not always been helpful; discussions around HIV non-disclosure have only served to over-criminalise and further marginalise the bodies of the already stigmatised.
ReplyDeleteI personally feel that as it stands today, the legal system allows for too much wiggle room in enforcing the law of sexual assault to be productive. As we've discussed, societal norms about the 'ideal victim' are at play in police handling of the already low reporting rate and result in a disproportionate level of unfounded cases. As Gotell's article suggests, courts have room in applying law to adopt a rhetoric of risk-management (or lack thereof) to 'inform' credibility; the case of the borrowed lawnmower is demonstrative. Practically, law is already too late in the day for the experiences of survivors in terms of rape prevention. What a more effective strategy might look like, I'm not sure yet.