¹ See especially Pateman, C., The Sexual Contract (Stanford, CA: Stanford University Press, 1988)Google Scholar; Pateman, C., The Disorder of Women (Stanford, CA: Stanford University Press, 1989)Google Scholar; MacKinnon, C.A., Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989).Google Scholar

² Criminal Code, R.S.C. 1985, c. C-46, s.273.1(1). The law also contains revised “rape-shield” provisions which outline the situations in which evidence of the complainant's sexual history may be introduced. See Delisle, R.J., “The New Rape Shield Law and the Charter” (1993) 42 U.N.B.L.J. 335Google Scholar; and Hughes, P., “From a Woman's Point of View” (1993) 42 U.N.B.L.J. 341.Google Scholar

³ R. v. Ewanchuk, [1999] 1 S.C.R. 330 [hereinafter Ewanchuk (S.C.C.)], allowing appeal from R. v. Ewanchuk, [1998] A.J. No. 150 (Alta. CA.) (Q.L.) [hereinafter Ewanchuk (C.A.)], dismissing appeal from acquittal by Moore J.

⁴ Gunter, L., “Courtship in monosyllables: poor manners distract us from the high court's sophistry” National Post (1 March 1999) A18Google Scholar [hereinafter “Courtship in monosyllables”]. See also the editorial on the same subject, “Assaulting the law” National Post (1 March 1999) A19.

⁵ Ewanchuk (S.C.C), supra note 3 at para. 7.

⁶ Ibid. at para. 8.

⁷ Ewanchuk (CA.), supra note 3 at para. 44.

⁸ Ewanchuk (S.C.C.), supra note 3 at para. 15.

⁹ As quoted in Ewanchuk (C.A.), supra note 3 at para. 44.

¹⁰ Ibid. at para. 71.

¹¹ Ibid. at para. 45.

¹² Ibid. at para. 4.

¹³ Ibid. at para. 4.

¹⁴ Ibid. at para. 21. McClung, like the trial judge, emphasized that the accused's penis was soft when he laid it upon her pelvis. Rebecca Johnson wonders “if the significance of the reference to the soft penis doesn't serve to emphasize the fact that this was not ‘really’ a sexual assault. That is, a soft penis can not be a threat.” See Johnson, R., “The Persuasive Cartographer: Sexual Assault and Legal Discourse in R. v. Ewanchuk” in MacDonald, G., ed., Social Context and Social Location: New Struggles for Old Law (Peterborough, ON: Broadview Press, forthcoming in 2001), n. 8.Google Scholar

¹⁵ Ewanchuk (C.A.), supra note 3 at 21. See also Tibbetts, J., “Supreme Court asked to spell out the rules for consent before sex: Appeal challenges Alberta ruling on assault case in which ‘no, stop’ was not enough to indicate lack of consent for sexual activity” The Globe and Mail (13 October 1998) A7.Google Scholar

¹⁶ See Mahoney, J., “Alberta Judge to face formal complaint: Rare exchange between judges leaves legal community ‘shocked, appalled’” The Globe and Mail (1 March 1999) A3.Google Scholar

¹⁷ Mahoney, J., “Man who set judges at odds is jailed” The Globe and Mail (21 October 2000) A9Google Scholar [hereinafter “Man who set judges”].

¹⁸ Ewanchuk (S.C.C.), supra note 3 at para. 27.

¹⁹ Ibid. at para. 29.

²⁰ There remains a concern that this defense places an unnecessary burden on the complainant to ensure that nothing she does (or wears) can lead the accused to assume her consent. Before changes were made to the law in 1992, if a woman's “No's” were not forceful enough or were interpreted as coyness, then the defendant could be acquitted even if her consent was not given. Under the new law, these concerns are allayed only somewhat, for the defence of honest but mistaken belief in consent remains. See Hinch, R., “Inconsistencies and Contradictions in Canada's Sexual Assault Law” XIV: 3Can. Pub. Pol. 282.Google Scholar

²¹ The original wording was “all reasonable steps” but “all” was removed because it was thought to impose too high a standard on the accused. See Nedelsky, J., “Violence Against Women: Challenges to the Liberal State and Relational Feminism,” in Shapiro, I. and Hardin, R., eds., Political Order (New York and London: New York University Press, 1996) 454 at 479.Google Scholar

²² Ewanchuk (S.C.C.), supra note 3 at para. 52.

²³ Ibid. at para. 58.

²⁴ Ibid. at para. 82.

²⁵ Ewanchuk (C.A.), supra note 3 at para. 67.

²⁶ Burt, M.R., “Rape Myths and Acquaintance Rape” in Parrot, A. & Bechhofer, L., eds., Acquaintance Rape: The Hidden Crime (Toronto: John Wiley & Sons, 1991) 26 at 27.Google Scholar

²⁷ Ewanchuk (S.C.C.), supra note 3 at para. 95.

²⁸ Ibid. at para. 103.

²⁹ Unrapeable women, or “open territory victims”, include prostitutes, “loose women” or women with unsavoury reputations, women with sexual “experience” as well as those who are mentally ill, homeless, poor, intoxicated or alcoholic. See Hinch, supra note 20 at 288. The credibility problem is not a new one in the Canadian legal context. Historically, “women who were known to drink alcoholic beverages, frequent taverns, or indulge in extramarital sex were virtually guaranteed legal rebuff when they complained of violent rape. In the language of the courts, they lacked credibility:” Backhouse, C., Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Osgoode Society/Women's Press, 1991) at 87.Google Scholar

³⁰ See Burt, supra note 26 at 26.

³¹ Bumiller, K., “Fallen Angels: The Representation of Violence Against Women in Legal Culture” in Fineman, M. Albertson and Thomadsen, N. Sweet, eds., At the Boundaries of Law: Feminism and Legal Theory (New York: Routledge, 1991) 95 at 97.Google Scholar

³² Quoted in Ohler, S., “Judge reiterates belief that teen wasn't assaulted” National Post (27 February 1999) A1.Google Scholar

³³ Steel, K., “A Sacrificial Wolf: Is Rapist Ewanchuk a Dangerous Offender, Or a Pawn in a Larger Debate?” Alberta Report 26: 14 (29 March 29 1999) at 22.Google Scholar

³⁴ See “Man who set judges”, supra note 17.

³⁵ McClung, J.W., Letter to the Editor, National Post (26 February 1999) A19.Google Scholar

³⁶ See Steel, supra note 33 at 22.

³⁷ For example, the debate surrounding Ewanchuk might have focused upon the needs of survivors of sexual assault, the prevalence of sexual assault in Canada, and the problem of male violence against women. None of these themes emerged, however, as any more than sidelines.

³⁸ Blatchford, C., “Sometimes a massage isn't just a massage” National Post (6 March 1999) B8.Google Scholar

³⁹ Mahoney, J., Letter to the Editor, National Post (3 March 1999) A19.Google Scholar

⁴⁰ This was Professor Matin Yaqzan's suggestion in a letter to the University of New Brunswick student newspaper. The Brunswickan. Yaqzan's letter became the center of a university debate, not so much about dating violence as free speech, since he was temporarily suspended from his job. In fact, the issue of consent, which ought to have been at the center of this controversy, was sidelined. See Yaqzan, M., “Opinion: ‘Rape’ Past and Present” The Brunswickan (8 November 1993) 7.Google Scholar

⁴¹ One contributor to the editorial page of the National Post attempts to use the metaphor of theft to prove the victim's fault in this case. He writes, “If, one night, I park my shiny BMW in a seedy area of downtown, leave the doors unlocked and the keys in the ignition, my car will most certainly be gone when I get back. Sure, the law defines it as car theft. But I don't have my car and I've been a damned fool” [emphasis added]. Apparently, the complainant in Ewanchuk, by entering his trailer dressed as she was, effectively “left the keys in the ignition.” Apart from the offence of equating a woman with something that is to be driven, the difficulty with this analogy is that, whereas the law defines theft of the BMW as theft, two courts in Alberta did not define what happened to the complainant as sexual assault. See Grauer, S., Letter to the Editor, National Post (1 March 1999) A19.Google Scholar

⁴² Ibid.

⁴³ Los, M. and Chamard, S.E., “Selling newspapers or educating the public? Sexual violence in the media” (1997) 39 Can. J. Crim. 293 at 318.Google Scholar

⁴⁴ An Alberta lawyer claims that he is not sure that men are “emotionally capable” of ascertaining the consent of their female partners when they are “wound up,” also implying that male sexuality is somehow out of control. See Powell, K., “Ruling ignores reality, prof says” The Edmonton Journal (3 March 1999) A4.Google Scholar This was also Matin Yaqzan's point, that men require sexual gratification and will use any means to achieve it. See supra note 40.

⁴⁵ See Kimber, S., “Not Guilty”: the trial of Gerald Regan (Toronto: Stoddart, 1999).Google Scholar

⁴⁶ Greenspan, E.L., “Judges have no right to be bullies” National Post (2 March 1999) A18Google Scholar [hereinafter “Judges have no right”].

⁴⁷ Greenspan, E.L., “Judge Koziński, I beg to differ” National Post (11 March 1999) A18Google Scholar [hereinafter “Judge Koziński”].

⁴⁸ Blatchford, supra note 38.

⁴⁹ Repo, M., “The Ewanchuk ruling is no reason to rejoice” The Globe and Mail (4 March 1999) A17.Google Scholar

⁵⁰ Ibid.

⁵¹ van Dijk, T.A., Racism and the Press (London/New York: Routledge, 1991) at 207.Google Scholar

⁵² Ibid.

⁵³ Ibid.

⁵⁴ Lawrence, E., quoted in Bannerji, H., “Introducing Racism: Notes Towards an Anti-Racist Feminism” (1987) 16:1Resources for Feminist Research 10 at 10.Google Scholar

⁵⁵ “Judge Koziński”, supra note 47.

⁵⁶ E. Lawrence, supra note 54. On common sense, see also Winter, J., Common Cents: media portrayal of the Gulf War and other events (Montreal: Black Rose, 1992).Google Scholar

⁵⁷ Repo, supra note 49.

⁵⁸ See Lacey, N., Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) at 121Google Scholar; and Bronnit, S., “The Direction of Rape Law in Australia: Toward A Positive Consent Standard” (1994) 18: 5Criminal Law Journal 249 at 251–53.Google Scholar

⁵⁹ Smart, C., Feminism and the Power of Law (London and New York, Routledge, 1989) at 45.CrossRefGoogle Scholar

⁶⁰ Ibid.

⁶¹ An expression used by a Michigan law enforcement official to describe rape reform. Quoted in Schulhofer, S.J., Unwanted Sex: The Culture of Intimidation and the Failure of Law (Cambridge, MA: Harvard University Press, 1998) at 39.Google Scholar

⁶² “Judge Kozinski”, supra note 47.

⁶³ Ibid.

⁶⁴ “Courtship in Monosyllables”, supra note 4. Gunter chastises feminists for defending Bill Clinton on charges of sexual assault against Kathleen Willey while demonizing Ewanchuk and, by extension, McClung. See Gunter, L., “Feminist attitude is two-faced,” The Edmonton Journal (2 March 1999) A8.Google Scholar

⁶⁵ Jonas, G., “The Canadian matriarchy's reign of terror” The Toronto Sun (4 March 1999) 1.Google Scholar

⁶⁶ As Tanya Horeck points out, however, the practice of spectating while a victim recounts her story - especially in light of the fact that the victim's experience in the courtroom often constitutes a second assault - raises unsettling questions about the role of the viewer in “the raped woman's ordeal.” See Horeck, T., “‘They did worse than nothing’: Rape and Spectatorship in The Accused” (2000) 30 Canadian Review of American Studies 1 at 7.CrossRefGoogle Scholar

⁶⁷ Ibid.

⁶⁸ See Morrison, T., ed., Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (New York: Pantheon Books, 1992).Google Scholar

⁶⁹ This is a more complicated issue than it might seem, as some survivors of sexual assault do not recognize themselves as such and actively avoid taking up the role of victim. Just as it is easier for some men not to come to terms with their unethical sexual behaviour, it can also be more comfortable for women not to question their own sexual experiences too deeply.

⁷⁰ I have witnessed the opposite calculation in teaching a women's studies class, in which a male student confronted his past experience and found his own ethics lacking. The class was not meant to force people to rethink their own experiences, but it seems that when the topics of sexual assault and consent arise, this process inevitably follows.

⁷¹ Bumiller, supra note 31 at 97. Susan Brison asserts, “[w]e are not taught to empathize with victims.” One of the reasons for this, she suggests, is that people prefer to deny the possibility that sexual assault could happen to them: “They cannot allow themselves to imagine the victim's shattered life, or else their illusions about their own safety and control over their lives might begin to crumble.” Brison's experience following the aftermath of her own random, violent sexual assault and attempted murder shows that people comfort themselves about the threat of sexual assault with illusions that she must have done something to provoke it, that sexual assault does not occur randomly. The complainant's experience in Ewanchuk, in contrast, shows us that, where there is no overt threat or use of violence, people find comfort in the notion that it really wasn't sexual assault at all. See Brison, S.J., “Surviving Sexual Violence: A Philosophical Perspective” (1993) XXIV: 1Journal of Social Philosophy 5 at 11.CrossRefGoogle Scholar

⁷² A First Nations woman has accused former Reform MP Jack Ramsay of sexually assaulting her when she was a teenager and he an RCMP officer in Saskatchewan. The defense claims that, although he had to threaten to tell her parents that she was not a virgin to “get” her to consent, she did consent. In an initial response to the charge, Ted Byfield of the London Free Press defended Ramsay on the basis that “public perceptions of things like sex with native girls have changed radically in 31 years … Things regarded then as commonplace are now regarded as dire.” Moreover, he claims real Canadians understand this. First Nations women, by this account, belong in the category of “open territory victims”: their consent is deemed irrelevant because of who they are. Once again we see that whether she consented to this encounter or not is determined, not by her actions or words, but by her identity and presumed “moral character.” Byfield, T., “Media Canada aghast but Real Canada likes Ramsay” The London Free Press (12 June 2000) A11.Google Scholar

⁷³ Dunn, M., “No doubt about it: There's no such thing as implied consent, high court rules in overturning sex assault acquittal” The Edmonton Sun (26 February 1999) 3.Google Scholar

⁷⁴ Horeck, supra note 66 at 14. Moreover, the repeated mention of her dress in T-shirt and shorts see e.g. the response to the bonnet and crinolines comment: “she had a lot less on than that …” by Waugh, N., “Fundamental differences battle it out” The Edmonton Sun (2 March 1999) 11)Google Scholar and of the massages exchanged between Ewanchuk and the complainant had the effect of turning her story from testimony of a sexual assault into what Smart has labelled a “pornographic vignette.” See Smart, supra note 59 at 39.

⁷⁵ Perhaps the wrong of rape has proved so difficult to define because the unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance:” MacKinnon, supra note 1 at 174.

⁷⁶ Debates of the Senate 137: 116 (4 March 1999) at 2705 (A.C. Cools) [hereinafter Debates].

⁷⁷ As Smart observes, “Being a sexual predator is regarded as normal, even desirable for men. Pressing a woman until she submits is a natural, pleasurable phallocentric pastime.” See Smart, supra note 59 at 42.

⁷⁸ Male persistence and female resistance form the cornerstone of heterosexual interaction: “the ground rules assume that men should be persistent in the face of a woman's passivity or reluctance … Stories of male persistence overcoming female passivity and reluctance are presented as erotic, not only in male-oriented pornography but also in the Harlequin romances … that are widely read by a largely female audience.” See Schulhofer, supra note 61 at 61.

⁷⁹ This was an expression that was posted, along with dozens like it, on window signs in response to the date-rape awareness campaign on the Queen's campus. See Torrens, J. & Zima, J., “Residents try to ‘lighten up’ campaign” The Queen's Journal (13 October 1989) 3.Google Scholar

⁸⁰ What is most interesting about the idea that women must strongly resist sexual assault in order to be believed is that it flies in the face of learned, traditional female sexual behaviour. The way in which women are scripted to behave (passive and coy) in our heterosexual discourse is exactly what they are punished for in sexual assault cases. That the complainant in Ewanchuk did not run screaming from the site is viewed as further evidence that she was actually consenting. For discussion of appropriate resistance, see Estrich, S., “Rape” in Smith, P., ed., Feminist Jurisprudence (New York: Oxford University Press, 1993) 158 at 160–61.Google Scholar

⁸¹ Hughes, supra note 2.

⁸² Ibid. at 347.

⁸³ “Courtship in Monosyllables”, supra note 4.

⁸⁴ Ewanchuk (C.A.), supra note 3 at para. 12.

⁸⁵ See Barlow, M. and Winter, J., The big Black book: the essential views of Conrad and Barbara Amiel Black (Toronto: Stoddart, 1997).Google Scholar

⁸⁶ Amiel, B., “Feminists, fascists, and other radicals” National Post (6 March 1999) B7.Google Scholar

⁸⁷ “Judges have no right”, supra note 46.

⁸⁸ Feminists “have a clear political agenda. Simply put, their agenda is to make it as easy as possible for women to complain against men of sexual assault …”, writes one commentator. See Engel, T.M., Letter to the editor, The Edmonton Journal (20 March 1999) A15.Google Scholar

⁸⁹ “Judges have no right”, supra note 46. It is noteworthy that even a small story that ran in The Globe and Mail describing Ewanchuk's sentence is worded in a way that attributes blame to L'Heureux-Dubé: “A strongly written decision by Madam Justice Claire L'Heureux-Dubé set off a war of words.” See “Man who set judges”, supra note 17. On the subject of the characterization of Justice L'Heureux-Dubé, see Sampert, S., Bitch on the Bench: Canada's national newspapers and feminist ideology in the “no means no” case (M.A. Thesis, University of Calgary 2000) [unpublished].Google Scholar

⁹⁰ Amiel, supra note 86.

⁹¹ Blatchford, supra note 38; “He Said, She Said” National Post (26 February 1999) A3.

⁹² Ohler, S., “Groundswell of support rises for embattled McClung” National Post (3 March 1999) A6.Google Scholar

⁹³ Blatchford, supra note 38.

⁹⁴ Senator Anne Cools. Quoted in Ohler, supra note 92.

⁹⁵ Debates, supra note 76 at 2707.

⁹⁶ “‘I'm a scapegoat’: Sex offender says he's a victim in judges' feud over no-means-no law” The Edmonton Sun (1 March 1999) 1.

⁹⁷ Pilon, B., “Stuck in the Middle: Convicted sex felon says legal war of words in being waged at his expense” The Edmonton Sun (1 March 1999) 3.Google Scholar

⁹⁸ Steel, supra note 33.

⁹⁹ Faulder, L., “He had control. She had none at all” The Edmonton Journal (21 February 1999) B1.Google Scholar

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¹⁰² For an analysis of the anti-feminist political culture of the United States, including a discussion of the media's characterization of violence against women, see Rhode, D.L., Speaking of Sex: The Denial of Gender Inequality (Cambridge: Harvard University Press, 1997).Google Scholar The denial of the systemic nature of women's oppression also drives the public's negative reaction to pay equity and employment equity policies. See Bakan, A.B. & Kobayashi, A., Employment Equity Policy in Canada: An Interprovincial Comparison (Ottawa: Status of Women Canada, 2000).Google Scholar

¹⁰³ Veronica Strong-Boag documents the anti-feminist backlashes to the first and second- wave feminist movements in Canada and points to the discourse of male victimization that emerges in response to feminism. See Strong-Boag, V., “Independent Women, Problematic Men: First- and Second-Wave Anti-Feminism in Canada from Goldwin Smith to Betty Steele” (1996) 29: 57Social History 1 at 16–18.Google Scholar

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¹¹⁶ MacKinnon, supra note 1 at 173. See also supra note 77.

¹¹⁷ Schulhofer, supra note 61 at 4.

¹¹⁸ Estrich, supra note 80 at 168.

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¹²³ See supra note 58.

¹²⁴ Haag, supra note 108 at xiv.

¹²⁵ Balos, B. & Fellows, M.L., “A Matter of Prostitution: Becoming Respectable” (1999) 74 N.Y.U. L. Rev. 1220 at 1259–60.Google Scholar

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¹³² Nedelsky, supra note 21 at 478.

¹³³ Ibid. at 477.

¹³⁴ The emphasis on “No Means No” somehow submerges, perhaps out of necessity, the issue of quality beneath that of legality and legitimacy. West rightly notes that consent can transform an illegal act into a legal one, but it cannot “convert a rape into a wonderful act of intimacy; it converts it, at most, and again on their terms, into something which is, at best, not rape. It doesn't convert an act of either social or sexual intercourse into something we should celebrate.” See West, supra note 130 at 249.