Lise Gotell's writing on, "Rethinking Affirmative Consent in Canadian Sexual Assault Laws," does a great job of pointing out how much our laws have progressed in recent years, while still enumerating the ways in which they are still inherently flawed. I particularly like how she compares these new laws to economics, suggesting that, "normalized sexual interaction becomes understood as being like a market transaction" (873-874). Affirmative consent is a good law in theory, but it fails to encapsulate the complexities of human relations and of power dynamics that exist between people. I agree that it is important to consider the foundations on which these laws are built upon, and what they represent in terms of the structure of our society. As Gotell points out, "law exerts power by engaging in the conduct of conduct." Or in other words, "legal decisions on sexual assault do not simply fix the line between rape and normal heterosexuality; these discourses prescribe normative heterosexuality, and privileged forms of masculinity and femininity" (875). I believe that this is paramount in considering the effectiveness of these laws.
For example, these laws fail to consider power dynamics between individuals that are not rooted in legal structures of power. They do not consider how matters of race, gender, sexuality and ableism might have long term effects on someone's ability to consent. This makes me think of when we read the article earlier in class about women with "mental disabilities," by Janine Benedet and Isabel Grant. This work exposed that women who had cognitive impairment only seemed to be protected by the law in terms of power dynamics when they were under the age of 18. Furthermore, these laws do not seem to account for the disparity between the typical white heterosexual women and women who are queer, trans, non-white, and who are sex workers. It seems to me that the legal system is enforcing a type of normativity that does not benefit those who are most often survivors of sexual assault, and laws cannot protect those who they are not designed to protect.
I think one of the questions you implicitly bring up in your post is the power of law to influence and change social norms. Affirmative consent, in many ways is more progressive that social norms shaped by rape culture. However, that also represents a key weakness in the application of the law. As you mentioned, it does not acknowledge or provide space for nuanced power relations, and assumes that individuals are able to fully and rationally distinguish between coercion and consent and then act accordingly. I think this relates to the idea of trickle up justice described by Dean Spade. The law, as it stands, is a powerful tool for “the ideal victim” but does not change the experience on the ground for survivors who do not fit the surrounding conditions and privilege. Therefore, to make an effective alternative to the affirmative consent law, the needs of the most vulnerable survivors need to be made central to the law.
ReplyDeleteYes! I also think it is important to think about the potential effect of law when it is being drafted – what sort of norms are being upheld and validated, and what aspects of society are being ignored or devalued? I found Gotell’s article compelling, in that it acknowledged the progress achieved in reforming sexual assault law by focusing on affirmative consent, which problematising who this has benefited, and how the legal framework has reshaped our lives.
ReplyDeleteI think legal reform will probably always be tricky when it treats subjects as ahistorical, autonomous individuals. As we know, intersecting factors such as race, class, gender etc impact one’s autonomy; the ability to effectively risk-manage sexual experiences and personally prevent crime is particularly important in how effectively justice can be accessed through the state (Gotell p. 879). Should we lobby for laws recognising these intersections, or should prosecutors acknowledge them at trial to reshape how and why subjects interact in the ways they do? Or would the law continue to exert power and shape subjects in this scenario by creating a two-tier justice system (ie one for those affected by race, and one for the ‘raceless’? This week, more than anything, has got me thinking that under its current framework, law cannot be the final stop in the road.