The Implications of Doctrine Bleeding?

I would like to use this week to quickly add something to the discussion on Lise’s lecture and the idea of the doctrine bleeding between the law of consent for sexual assault and the law of consent for HIV non-disclosure. In Hutchinson, a sexual assault case, the Court adopted ideas of consent from Mabior, a case on consent in the context of HIV non-disclosure.

The majority in Hutchinson drew on Mabior and held consent could be vitiated by fraud if there was “significant risk of bodily harm”, which included unintended pregnancy. As Gotell mentioned, this represents a move away from a conception of consent centred around harm to sexual integrity, to a conception centred around physical harm. Though I respect the Court’s approach of recognising the enormous (gendered) implications of pregnancy, I find this overall problematic and limiting. As we have discussed in class, the physical harm of sexual assault, if there is any, is only the surface of what the survivor may experience. I think it is incredibly dangerous that the current law, which previously only considered bodily harm to be relevant in the case of HIV transmission, emphasises and focuses on fraud and significant risks to bodily harm as factors vitiating consent.

I think it is obvious from the facts of this case that the outcome of the case was correct, and Hutchinson’s conduct should be considered criminal. However I draw issue with the Court’s overall approach; to me, this instance of doctrine bleeding probably speaks to patterns we have spoken about in the previous topic. Social norms about ideas about the ‘ideal’ victim of rape have enormous sway in how state institutions such as the police and the judiciary approach enforcing sexual assault law. I personally see the undue focus and shift towards consent centred around physical harm as echoing old rape myths of there being no sexual assault if there is no physical harm suffered. As someone with some who would like to be able to hold some faith in the judiciary as a supposedly impartial institution, I found this deeply troubling.

(I found this link useful in providing an easy-to-read summary of Hutchinson: canliiconnects.org/fr/commentaires/30639)