He said/she said: How is consent determined in sexual assault cases?

Jian Ghomeshi exits a Toronto courtroom after being charged with sexual assault and overcome resistance. John R. Kennedy / Global News

TORONTO – Before Jian Ghomeshi was charged with four counts of sexual assault and one of overcome resistance—but after he was fired from the CBC—the former radio host wrote that he engaged in forms of sex that included role-play, dominance and submission, along with “rough sex (forms of BDSM).” Whether or not the charges against him are related in any way to bondage, dominance, sadism and masochism (BDSM), Ghomeshi’s detailed Facebook post has brought the practice into the public discussion.

Ghomeshi’s lawyer said Wednesday he will plead not guilty to the sexual assault charges. He has said all acts were consensual, though at least three women have alleged he was physically violent without consent.

TIMELINE:  Jian Ghomeshi charged in sex assault scandal

If it sounds like a case of he said/she said, that’s because it will be, as sex assault cases typically are.

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“It’s always a he said/she said on the consent,” said prominent lawyer and Osgoode Hall Law School professor Alan Young, speaking about sex assault cases in general. “But you can’t just determine it based on the credibility of the individuals – you have to look at all the surrounding circumstances to see based on the whole picture whose version of reality makes more sense.”

READ MORE: How likely is Jian Ghomeshi to be convicted of sexual assault?

Young cited a case from the 1970s where a woman complainant in a sex assault case said she didn’t consent, but evidence suggested otherwise.

“The evidence shows that all her clothes were folded by her and put neatly on the chest of drawers, things like that—that doesn’t give much indication of a struggle,” said Young. “And it looks like someone had calm presence of mind.”

Young said consent is “the issue” in every sex assault case—but the way courts evaluate consent has changed since the early 1990s to require “voluntary agreement.”

“Under the previous law, the only way you could ensure that your assaulter would be convicted was by fighting back—which sometimes just escalates the violence and puts you at risk. But an absence of opposition was considered to be implicit consent. … [Now] you’ve got to point to something that demonstrates consent, as opposed to the old law where you pointed to something that showed a lack of resistance.”
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Does that mean we should be signing contracts before we fool around? Young says consent can be communicated by conduct, not just words.

“The ideal situation and model is two people look eye to eye and say, ‘Do you want to do x, y and z?’ But that’s not life. That’s rarely how these things happen.”

Karen Busby is a law professor and director of the Centre for Human Rights Research at the University of Manitoba who undertook a review of BDSM-related criminal cases in Canada over the past 20 years. She said there was panic in the community after the Ghomeshi story broke that practitioners could be criminally convicted. She recently wrote an editorial that assures BDSM practitioners that if they abide by certain guidelines, there’s nothing to worry about.

“The case law in the last 20 years has made it clear – that if you have consent, a way of withdrawing consent, and what you’re doing is safe and sane, then you don’t risk criminal conviction,” she said.

Jian Ghomeshi appears at a bail hearing Nov. 26, 2014 after being charged with four counts of sex assault and one count of overcome resistance. Alex Tavshunksy

Busby gave an example of how to follow these criteria: Consider BDSM role-playing involving an aggressive rape scene. In such a scene, you’d expect what she called the “bottom” participant to be saying something like “no, stop” but it wouldn’t actually mean “no, stop.”

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“So that’s the concept of: you’ve got to have a way of withdrawing consent,” said Busby. “So if ‘no, no stop’ doesn’t mean stop, what does?” adding that an unrelated safe word is typically used.

Busby added if you’re engaged in erotic asphyxiation (also known as strangulation), consent is considered withdrawn because you no longer have the capacity to do so. But she pointed out she “hardly ever” saw instances of strangulation in her reading of the literature, since BDSM practitioners consider it too dangerous.

“What I was more concerned with is cases where it was clear this was not consensual BDSM… But what defendants tried to do was rely on BDSM to say it was erotic asphyxiation when the facts actually pointed to it being strangulation,” she said.

READ MORE: Why don’t victims or bystanders report sexual assault?

Without the special circumstances that should be discussed when engaging in BDSM, explicit consent in less kinky sexual encounters isn’t always present.

Scott Anderson is a professor of philosophy at the University of British Columbia who studies rape and sexual assault, and topics such as consent and coercion.

“If enthusiastic participation counts as giving ‘explicit’ consent, then this is not unrealistic for many, maybe most sexual encounters. If the participants are very familiar with each other, then it is probably not going to be an issue even when there is little explicit consent expressed,” wrote Anderson in an email to Global News.

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“The trickiest situation is when two people who don’t know each other very well and who are still determining what sort of activity they are engaging in proceed towards having sex. Young people often find it difficult to make clear what they want—they might not know themselves—and so getting explicit consent at each step of the process can be very uncomfortable for one or both.”

“But  this is also a kind of situation where paying attention to explicit consent is especially important, and failure to do this can very easily amount to assault.”

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