CANADIAN SEXUAL ASSAULT LAW: NEOLIBERALISM AND THE EROSION OF FEMINIST-INPIRED LAW REFORMS Lise Gotell In April 2009, Prime Minister Stephen Harper warned the President of Afghanistan that critical Allied support for the mission could diminish if the Afghan government did not change a law that would ‘make it legal for men to rape their wives’ (Vancouver Sun, 4 April 2009). Drawing upon and restating the now familiar gendered rationalization of the ‘War Against Terror,’ the assumed sexual autonomy of Canadian women is posed as an important symbol of Western democracy and progress. Obscured beneath this brief flurry of political and media attention to rape (in Afghanistan) is, ironically, the very disappearance of sexual violence as a critical and systemic problem affecting Canadian women. Over the past decade, sexual violence has been increasingly depoliticized and erased from political agendas. In this chapter, I analyze Canadian sexual assault law, focusing most closely on the feminist-inspired changes to the Criminal Code enacted in 1992 that moved Canada in the direction of an affirmative consent standard. While significant in enshrining protections for complainants and in clarifying the law of consent, these revised provisions have been inconsistently interpreted. Despite doctrinal developments supporting sexual autonomy and positive consent, there is also a dramatic gap between the thrust of Canadian law and a reality characterized by continued high prevalence rates, low police reporting rates and high attrition rates. Analyzing the implications of Canadian sexual assault law against the backdrop of neoliberalism, I demonstrate how the embrace of an affirmative model of consent consolidates the individualizing frame of criminal law and produces normative sexual subjects who actively manage the risk of sexual assault. In this process, new forms of victim blaming are created and some categories of women are excluded from the protections of law. Tying the impact and fate of 1990s reforms to the elaboration of neoliberal governance, I conclude with an analysis of key features of the current political context that mitigate against the emergence of new reform initiatives. HISTORICAL AND POLITICAL CONTEXT OF FEMINIST-INSPIRED SEXUAL ASSAULT LAW REFORMS As in many other countries, Canadian second wave feminist activists succeeded in ‘breaking the silence’ around sexualized violence and, for a brief period, inserted sexual assault onto the political agenda as a pervasive social problem requiring government intervention. As part of a broader agenda that saw the establishment of independent women-controlled rape crisis centres, protests (such as Take Back the Night marches) and consciousness-raising activities, feminists pushed for legal reforms in order to constrain the influence of rape myths on the practice of law. Activists hoped that the elimination of sexist bias in law would deter rape by reducing men’s expectation of immunity and women’s expectations of unjust treatment by the criminal justice system. In the 1980s, feminists campaigned for a new gender-neutral offense of sexual assault that would shift the way in which the Criminal Code conceptualized sexual violence – as a crime of violence, rather than as a crime of sex. Underlying this campaign was the belief that desexualizing rape would diminish opportunities for victim-blaming. By redefining rape as violence, Canadian feminists hoped to convey the seriousness of this crime and to emphasize the similarity between sexual assault and the criminal assaults that men typically experience (McIntyre 2000; Los 1994). But as critics argued even then, while drawing attention to the harms of sexual violence, this strategy misrepresents the problem of rape by removing it from its deeply gendered context and obscuring the relationship between male power, violence and sex (Los 1994: 34; McIntyre 2000). The Canadian federal government’s interest in rape law reform in the early 1980s was tied to concerns that gender-specific sexual offences could offend the equality rights guarantee of the newly entrenched Charter of Rights (Los 1994: 27). In 1983, and in response to a vocal feminist lobby led by the National Association of Women and the Law, Parliament replaced the rape provision with the current three-tier structure of sexual assault offences (distinguished by degrees of violence), criminalizing all forms of nonconsensual sexual touching (Los 1994). This redefinition expanded the narrow view of sexual aggression denoted by rape, making criminally punishable sexual acts that do not involve penetration and, for the first time, explicitly criminalizing sexual assault within marriage. The amendments also addressed the unique evidentiary rules that had characterized the prosecution of rape, abolishing the corroboration requirement and the doctrine of recent complaint. Finally, in an effort to reduce the humiliation experienced by complainants and the sway of rape myths in trials, new provisions restricting crossexamination on sexual history and banning the publication of victims’ names were included in the Criminal Code. In the early 1990s, sexual violence reemerged on the political agenda as the federal government responded to the Montreal Massacre. In 1989, fourteen young women engineering students were shot at the École Polytechnique, precipitating attention to the problem of violence against women. This deliberate act of gendered terror brought into stark relief feminist claims about the extreme consequences of violence against women, provoking a national debate about male violence. While the Massacre produced a new and often highly symbolic political emphasis on gendered violence, the specific and almost exclusive framing of the problem as a criminal justice matter must be understood in relation to the rise of neoliberal governance (Gotell 2007). By the early 1990s, the erosion of post-war notions of social citizenship had diminished political spaces for feminists and other social justice movements. Social and political problems were being redefined as individual problems, best managed through responsibility and selfregulation. During this period, governmental actors began to mount a steady attack on the Canadian women’s movement, delegitimizing feminist voices and dismantling programs designed to enhance women’s equality (Brodie 2007; Gotell 2007). As I have argued elsewhere, during this period, gendered ‘victimization’ became one of the last few gender-specific bases for claims to social entitlement, tied intimately to an enhancement of the state’s coercive powers (Gotell 1997: 67). Governmental attention to sexual violence, defined primarily as an object of criminal law, is related to the development of the leaner, meaner neo-liberal state. If shifting rationalities of governance and the fallout from the Montreal Massacre provided the broad context for attention to sexual violence as a criminal justice issue, the Supreme Court of Canada’s (SCC) decision in R v. Seaboyer ([1991] 2 S.C.R. 577) placed sexual assault law reform squarely on the political agenda. In a stunning legal defeat and the first SCC Charter decision dealing with sexual assault, sexual history evidence restrictions enacted in 1983 were struck down as a violation of defendants’ fair trial rights. The majority ruled that because the restrictions failed to provide scope for judicial discretion, they potentially excluded relevant evidence. What the majority ignored, however, was how sexual history evidence relies upon and reinstalls rape myths, discrediting claimants by sexualizing them and undermining the fairness of the trial process through introducing discriminatory myths. The broad-based sexual assault law reform enacted in 1992 was a direct response to the Seaboyer decision. Bill C-49 was drafted after an unprecedented series of consultations with national feminist organizations and resulted in a set of fundamental changes to the definition and criminal regulation of sexual assault (McIntyre 2000). This legislation reenacted restrictions on sexual history evidence, but in a weakened form that complied with the Supreme Court’s insistence on scope for judicial discretion (Criminal Code, s. 276). At the same time, the amendments went far beyond the re-codification of guidelines for sexual history evidence. Sheila McIntyre, a participant in the reform process, explains that the feminist strategy was ‘to amend the substantive law of sexual assault to define consent and non-consent so as to narrow the range of ‘evidence’ capable of being relevant to the determination of guilt or innocence’ (McIntyre 2000: 76). For the first time, and as a result of feminist pressures, a statutory definition of consent as ‘the voluntary agreement to engage in the sexual activity in question’ (s. 273(1)2) was embedded in the Criminal Code, transforming consent into ‘something that a woman does and freely chooses to do, not something that men fanaticize or choose for her’ (McIntyre 2000: 76). The revised Code also enumerated a non-exhaustive set of situations where no consent is presumed to exist (including when agreement is expressed by another person, when the complainant is ‘incapable of consenting,’ when the accused abuses a position of power, trust, or authority, and when the complainant expresses a lack of agreement to engage or continue to engage in the sexual activity) (s. 273(1)3). According to McIntyre, this provision was intended to ‘convert self-serving rape-myths and rationalizations proffered as honest, but mistaken beliefs in a woman’s consent, into errors of law’ (2000: 76). Finally, the defence of mistaken belief was specifically limited by a new requirement that the accused must have taken ‘reasonable steps’ to ensure consent and by explicitly specifying that there can be no such defence when this belief arises through ‘recklessness’ or ‘willful blindness’ (s.273(2)b). The ‘reasonable steps’ provision was a Canadian innovation; it modified what had been a purely subjective mens rea standard by introducing a quasi-objective fault element, such that the belief in consent need not be reasonable, but the accused must have taken reasonable steps in the circumstances to ascertain consent. Popularly referred to as the ‘no means no’ amendments, the positive definition of consent as a voluntary agreement, as well as limitations on the defence of mistaken belief, had the effect of distinguishing consent from submission, challenging a version of normative heterosexuality founded on feminine acquiescence (Gotell 2008). Subsequent rounds of sexual assault law reform in the 1990s, though more limited in scope, shared similarities with Bill C-49. Shaped by consultations with women’s organizations, amendments were explicitly framed as measures to address the pervasiveness of sexual violence in women’s lives and to improve the treatment of complainants and low rates of police reporting. And like Bill C-49, subsequent reforms were provoked by judicial decisions that privileged defendants’ legal rights. In 1995, the common law bar on the defence of intoxication was found to violate the defendant’s legal rights in R. v. Daviault ([1994] 3 S.C.R. 63), a SCC case involving the sexual assault of an unconscious, disabled woman. This ruling prompted a national outcry and caused Parliament to enact a legislative ban on the intoxication defence (Criminal Code, s. 33(1)). In 1997, the government created a legislative regime strengthening the weak common law test for disclosure of third party records that had been established by the SCC in R. v. O’Connor (1995 [1995] 4. S.C.R. 411) (s. 278), thereby responding to longstanding feminist concerns about the widespread defence tactic of discrediting complainants’ through the contents of their therapy, medical and other confidential records (Gotell 2002). By the end of the decade, the Criminal Code contained strong provisions recognizing sexual autonomy, placing an onus on defendants asserting mistake of fact defences to have taken steps to secure agreement and restricting the opportunities for discrediting complainants based upon their sexual history and the contents of their private records. In fact, Canadian legislation is widely viewed as expressing a communicative model of consent (Pineau 1996: 92-93) and our Criminal Code provisions have influenced law reform in other jurisdictions (see, for example, Criminal Justice Sexual Offences Taskforce 2006). Yet these feminist-inspired sexual assault law reforms unfold in a context distinct from that of the early 1990s, where the recognition of sexual violence as a social problem requiring governmental intervention has all but disappeared. By the end of the 1990s, feminist anti-violence activists were recast as ‘special interest groups’ and excluded from policy networks (Gotell 2007; McIntyre 2000). The policy field signified by ‘violence against women’ was evacuated and replaced with degendered and individualized policy frameworks. One crucial institutional mechanism by which this has occurred is the elaboration of victims’ services bureaucracies. Now preoccupied with the rights of individualized ‘victims’, new policy discourses avoid systemic constructions linking ‘crime’ to context, signaling the disappearance of gendered policy discourses of sexual violence. The withdrawal of funding from feminist front-line and activist work is a crucial aspect of this reconfigured context. With the decline of federal support for Canadian women’s organizations, funding for anti-rape activism and front-line work has been decentralized to the provinces. Because new funding arrangements are increasingly contingent on the provision of services to generic victims of crime, feminist front-line organizations have had to redefine themselves as social service delivery agencies, affecting their capacity to intervene in national debate and to combat the pervasive reprivatization and individualization of sexualized violence (Beres, Crow & Gotell 2009). The clever disappearing act embedded within these interrelated moves does not signal a victory over sexual violence, merely its disappearance as an object of policy and public discourse. In stark contrast to the post-feminist tenor of current political discourse, sexual violence persists as a deeply gendered social problem. Only 3 per cent of persons charged with sexual assault in 2007 were women, while 87 per cent of those assaulted were women and girls (Johnson 2009: 2). The Canadian Violence Against Women Survey, conducted by Statistics Canada in 1993, found that 39 per cent of Canadian women had experienced sexual assault since the age of 16 (Johnson and Sacco 1995). Approximately 460,000 (3 per cent) of Canadian women were sexually assaulted in 2004, though just eight per cent reported to the police (Johnson 2009: 13). Holly Johnson, the leading Canadian empirical researcher on violence against women and principal investigator on the Violence Against Women Survey, has recently reviewed the statistical evidence on criminal justice responses to sexual assault. As she documents, even though police-reported sexual assaults have declined since 1993, the estimated incidence of sexual assault has remained relatively constant (3). The rate at which sexual assaults are reported to police has also remained consistently low, never rising above 10 per cent, suggesting that confidence in the criminal justice system affects women’s willingness to make police complaints (4). Given the extremely high attrition rate for sexual assault, this caution seems warranted. Because of low reporting rates, high rates of police ‘unfounding’ or ‘no-criming’ and low charging and conviction rates, attrition rates based upon estimated incidence are astronomically high, with an overall conviction rate of 0.3 per cent, rising slightly to 1.6 per cent for sexual attacks accompanied by threats or physical attack (13). This evidence leads Johnson to conclude that ‘rape law reform and the efforts of grassroots feminist organizations to raise awareness and challenge widespread discriminatory stereotypes have not resulted in improvements in women’s willingness to come forward, or in the response of the criminal justice system to those who come forward’ (17). Other feminist critics have also expressed scepticism about the utility of sexual assault law reform as strategy, emphasizing that feminists do not determine the mobilization or enforcement of the law (Snider: 161). Because law is a disunified and contradictory field, we cannot expect law reforms to produce uniform, predictable effects (Smart 1995: 144, 212). What Canadian feminists achieved in rewriting sexual assault legislation was complex, inserting recognition of sexual autonomy and gender equality into a criminal legal framework defined by individual responsibility and punishment. Though revised Criminal Code provisions provide the architecture of an affirmative consent standard, their interpretation by a wide variety of actors in the criminal justice system occurs in the context of an official silence. Without external political discourses recognizing sexual assault as a systemic problem, the tendency of criminal law toward decontextualization and individualization holds sway. CONSENT IN CANADIAN LAW: INDIVIDUALIZATION, DECONTEXTUALIZATION AND THE UNEVEN DEVELOPMENT OF LAW As Smart has insisted, law develops unevenly, operating simultaneously as a site of, and an obstacle to, change (1995: 154-56). Canadian sexual assault law reforms have had complex effects, demonstrating the uneven development of law and the gap between what Smart refers to as ‘law as legislation’ and ‘law as practice.’ Studies analyzing the effectiveness of evidentiary provisions governing sexual history and access to complainants’ records reveal the permeability of statutory restrictions (Gotell 2002, 2007). Decisions have weakened and narrowed the tests introduced by legislation, downplaying the need to undertake a full analysis of the implications of sexual history evidence and personal records disclosure for complainant rights and very often privileging defendants’ rights. Despite protections embedded in the Criminal Code, complainants have remained vulnerable to being cross-examined on their sexual histories and to having a wide array of their personal records disclosed at trial. Some categories of complainants, including those who allege historical assaults, those who have histories of mental illness, those who have made previous complaints of sexual assault and/or those whose lives have been extensively documented under conditions of multiple inequalities and institutionalization (for example, Aboriginal women, women with disabilities or women who have been imprisoned or involved with child welfare authorities), are especially vulnerable to these defence tactics (see also Benedet & Grant in this volume). Unlike the sexual history and records case-law where an erosion of 1990s reforms is evident, recent decisions have built upon the foundation of affirmative consent laid through Bill C-49. R. v. Ewanchuk ([1999] 1 S.C.R. 330) is the leading authority for trial and appellate judges as they attempt to apply these revised statutory provisions. In this important decision, the SCC articulated a standard for sexual consent that approaches ‘only yes means yes’ (Ruparelia 2006). The Court unanimously found that there is no defence of ‘implied consent’ in Canadian law, defining the actus reus of sexual assault as non-consensual sexual touching where consent is determined from the subjective position of the complainant (paras 30-1, 34-5). While insisting that intent is a crucial element of the crime of sexual assault, the decision emphasized that the defence of mistaken belief is not available when tainted by recklessness or wilful blindness (paras 42 & 52). Moreover, gesturing towards the ‘reasonable steps’ requirement, the Court emphasized that triers of fact must consider whether the accused took active steps to establish consent (paras 58 & 60). Clear agreement to continue to engage in sexual contact must be obtained after someone has said no: ‘[t]he accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that . . . consent now exists, nor can he engage in further sexual touching to “test the waters”’ (para. 52). Finally, the SCC emphasized that consent must be positive, arguing that ‘the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying “no”, but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying “yes”’ (para. 45). Silence and ambiguous conduct thus do not constitute consent. In effect, Ewanchuk shifted the starting point in Canadian law from the assumption that women exist in a state of consent to a requirement that there be some positive evidence of agreement (Benedet & Grant 2007: 261; Gotell 2008: 869). Important appellate level decisions since Ewanchuk have continued to consolidate an affirmative consent standard by giving teeth to the requirements that consent must be voluntary and active and by holding that consent-seeking must be comprised of positive steps to secure agreement. Rulings have emphasized that to be legally valid, consent must be ‘freely given.’ In R. v. Stender ([2005] 1 S.C.R. 914), the SCC upheld a conviction in a case where the complainant had participated in sex in order to stop a former boyfriend from disseminating sexual photos. As Stender affirmed, the presence of pressure and extortion meant that no consent was given because consent must be voluntary. In a significant decision clarifying the defence of mistaken belief, the Manitoba Court of Appeal determined that active steps to secure agreement are required when circumstances exist that would cause a ‘reasonable man to inquire further’, raising the mens rea standard close to an objective standard (R. v. Malcolm 2000: para. 21).1 The Court argued that some circumstances, such as entering a complainant’s bedroom while she was sleeping, after a night of drinking and knowing that she was married to a close friend, require conversation and verbal consent, rather than a mere reliance on physical responses. Even in situations where complainants are intoxicated, drug affected and/or unconscious, Canadian courts are increasingly convicting (Gotell 2007: 146-147). On the basis of an extensive review of written decisions involving intoxication, Benedet (2009: 10-19) has found that judges are now more likely to rule that complainants lacked capacity to consent, especially when unconscious or asleep when the sexual activity began, or, if not unconscious, when they have been rendered intoxicated involuntarily. Judges also appear less willing to apply the claim of mistaken belief when a complainant is intoxicated, finding that the duty to take reasonable steps is elevated and often determining that proceeding with sex in such situations constitutes recklessness or wilful blindness (see for example, R. v. Cornejo (2003), 68 O.R. (3d) (Ont. C.A.); Benedet 2009: 20-25; Gotell 2008: 870). In addition, the Alberta Court of Appeal ruled out the possibility of a defence of ‘prior consent’ to sexual activity when asleep or unconscious because, as the majority emphasized, consent must be operative at the time sexual contact takes place (R. v. Ashlee [2006] A.J, No. 1040 (C.A.); Gotell 2008: 894-897). Clearly, cases involving intoxication continue to be contentious as complainants are often unable to completely remember what happened. Yet, in some key decisions, judges have relied on indirect evidence (for example that the complainant would be unlikely to have had unprotected intercourse with two men) to find a lack of consent against defendants’ claims to the contrary (R. v. J.R. (2006) 40 C.R.(6th) 97 (Ont. S.C.J.) at para. 38). The elaboration of an affirmative consent standard in Canadian law means that it is now far less likely that acquiescence will be transformed into consent. What Smart has labelled the ‘pleasurable phallocentric pastime’ of pressing a woman until she submits is clearly disrupted through emerging legal standards (1989: 45). And yet, reflecting the way in which the systemic nature of sexual violence has been increasingly erased in a context of neoliberal governance, Canadian judicial discourses consolidating an affirmative consent standard reinforce a decontexualized construction of sexual assault. Emphasis is placed on discrete sexual transactions, consent-seeking actions and the quality of agreement. And while valuable in focussing attention on the demonstration of positive consent, sexual violence is atomized; its manifestations and consequences are never collected, never considered in a context where sexual assault is a mechanism for sustaining gendered power relations. Recent Canadian decisions recognize sexual autonomy, but in a form that is consistent with individuated norms of criminal law. Normative sexual interaction is reconceived as being like an economic transaction and good sexual citizens are reconfigured to resemble rational economic actors assuming responsibility for their actions and the risks that they take. Tied to this decontexualized framing, the production of risk managing subjects who diligently practice sexual safekeeping becomes privileged as a governmental technique for managing the once ‘social’ problem of sexual violence. Alongside the shift to an affirmative consent standard in Canadian law, the line between the ideal victim and the incredible complainant has also shifted (Gotell 2007, 2008). When standards for consent are raised to ‘only yes means yes’ and when responsibility is placed on those initiating sex to take active steps to secure agreement, sexual virtue is eroded as the essential prerequisite of good victimhood. Indeed, this was the conscious intent of feminist law reformers. Yet, in post-Ewanchuk Canadian sexual assault law, the idealized (read credible) victim does not simply disappear. Instead, the contours of good victimhood shift to reflect the privileged logic of risk management. The performance of a diligent and cautious femininity grants some women access to the protections of law, while those who fail to follow the rules of sexual safekeeping can be denied protection. Victim-blaming constructions emerge repeatedly when complainants fail to behave as responsible risk managers. Even as convictions are entered, complainants are described as having ‘questionable judgement’, as being ‘careless’ as displaying ‘youthful naiveté’ and are criticized for failing to respond quickly and assertively in the face of sexual threats (Gotell 2008: 879-880). In a particularly striking recent example of this revised form of victim–blaming, a trial judge, convicting two men of drugging and sexual assaulting a young woman who they had met in an internet chatroom, emphasized the reckless nature of the complainant’s behaviours: J.M. communicated with a stranger who contacted her out of the blue on the internet. She flirted with him and foolishly agreed to meet, giving him her name, address and telephone number. She knew that he had mentioned bringing alcohol and drugs and she did contemplate the possibility of a sexual encounter with him. When he showed up at the residence with his friend, she voluntarily got in the car. ….J.M.’s continued attempts to minimize her provocative and foolish behaviour stemmed from her intense embarrassment that she allowed herself to get into the situation in the first place (R. v. Sadaatmandi 2008 cited in Benedet 2009: 8). Here the complainant is constructed as flirting with risk. The normalized risk-avoiding behaviours of the ideal victim can function as a standard for assessing the credibility of complainants. In R. v. A.J.S ((2005), 192 Man. R. (2d) 4 (Man. C.A.)), for example, the Manitoba Court of Appeal explicitly considered how ‘bizarre’ (para. 17) behaviours undermine credibility. In this case, an aboriginal woman living in poverty in a remote Northern community alleged that she had been repeated sexually assaulted by her sister’s husband. Her ‘abnormal’ behaviours, highlighted in this decision as raising concerns about her credibility, included being alone with the accused and borrowing his lawnmower. As the Court asked, ‘Why would she put herself at risk of being raped for the sole reason of borrowing a lawnmower to cut the grass?’ (at para. 17). The characterization of this complainant’s actions as unusual enough to undermine her credibility demonstrates a decontextualized view of ‘risk management’ that ignores constraints on action arising out of situations of social marginalization, including the necessity of continuing to interact with a violent man. As other feminist critics have also argued, while clearly confirmed by doctrine, the affirmative consent standard has been inconsistently applied by trial judges and many sexual assault decisions continue to be infused by myths and stereotypes that prevent legal recognition of unwanted sexual intrusions (Ruparelia 2006). In part, this gap between ‘law as legislation’ and ‘law as practice’ occurs because the legal discourse of affirmative consent enacts a separation between discrete events and the power relations constructing vulnerabilities. Sexual assault is reconstructed as the outcome of failed responsibilization and the power relations that define sexual violence are obscured. Extremely disadvantaged women, especially those who can be viewed as inhabiting spaces of risk, may be most likely to fall through the cracks of an affirmative consent standard. Systemic relations of race, class and gender, silenced in judicial discourses of affirmative consent, interact to construct some women’s bodies as violable. The Native Women’s Association of Canada (2009) has drawn attention to a culture of extreme racialized, sexualized violence against aboriginal women and girls. In the last 25 years, 520 aboriginal women have been murdered or gone missing in circumstances involving violence (88). Research suggests that Canadian aboriginal women face rates of physical and sexual assault that are many times higher than the average for all Canadian women (Dylan, Regehr & Alaggia 2008). As Razack (2000) contends, sexual violence against aboriginal women is an ongoing repetition of the colonial encounter that is sanctioned by law. While there have been no systematic reviews of sexual assault decisions involving aboriginal complainants since the entrenchment of an affirmative consent standard, some analyses suggest that racist stereotypes, long deployed to discount aboriginal women’s claims and render them ‘unrapeable’, persist and are being recoded under norms of risk management (Gotell 2008; Jiwani & Young 2006). The discourse of ‘high risk lifestyle’ has framed criminal justice and investigatory responses to the national tragedy of missing and murdered aboriginal women (Gotell 2008: 884). This framing locates aboriginal women in a space of risk. High profile cases have demonstrated how the culpability of white men enacting sexual violence against aboriginal women is often minimized, while complainants and victims are held responsible for their own violation because they engaged in ‘risky’ actions such as sex work, drinking and hitchhiking (Razack 2000; Gotell 2008). The decontexutalized lens of affirmative consent, and the manner in which choice and responsibility are highlighted, pose problems for other highly vulnerable groups of Canadian women. Although women with mental disabilities face extremely high rates of sexual violence, Benedet & Grant contend that the substantive law of sexual assault is inadequate to meet their needs (2007; and in this volume). Based upon their analysis of more than 100 Canadian cases, they demonstrate how the courts rarely acknowledge the specific vulnerability of women with mental disabilities and very often use the language of autonomy in order to justify acquittals. Legal attention is focussed on complainants’ participation in the sexual activities as an indication of consent, ignoring how high levels of control over the lives of women with mental disabilities produce compliant behaviour. Benedet & Grant are critical of the overemphasis on complainants’ conduct in these cases and the corresponding failure to scrutinize defendants’ actions in inducing compliance, actions that undermine the voluntariness of consent. Moreover, exacting demands of accuracy, consistency, rationality and psychological coherence placed upon all sexual assault complainants, work against the legal recognition of sexual violence against women with mental disabilities. The focus in Ewanchuk on what the complainant was thinking creates difficulties where the complainant was unable to tell the court what was going on in her mind at the time of the alleged assault. Benedet & Grant argue that the substantive law of sexual assault is premised on the assumption that complainants do not have disabilities. The decontextualized lens of affirmative consent creates a fiction of sexual autonomy, while failing to acknowledge how agency is constrained in situations of disadvantage and dependency. CURRENT ISSUES: NEOLIBERAL GOVERNANCE, THE DECLINE OF LAW REFORM AND THE EMPHASIS ON ENFORCEMENT The movement towards an affirmative consent standard can be seen as a positive outcome of feminist-inspired law reforms enacted in the 1990s. Important decisions consolidating this standard function as symbolic public testimonies of law’s claim to justice. At the same time, judicial discourses affirm an individualized and narrow understanding of sexual consent. The case law has been marked by inconsistent judicial interpretations and by decontextualized understandings of sexual assault that reinforce individual responsibility and new forms of victim-blaming. Moreover, the statistical evidence strongly suggests that the important objectives of increasing women’s confidence in the criminal justice system, improving reporting rates and reducing attrition have yet to be realized. Despite this very unfinished agenda, the problem of sexual violence has dropped from the Canadian political landscape. In the face of persistent evidence of gender inequalities, including high rates of sexual violence against Canadian women, spaces for the articulation of gender equality claims-making on the state have closed. While committed to ‘a get tough on crime agenda’, the Harper Conservative government cut the budget of Status of Women Canada (the core interdepartmental agency responsible for promoting women’s equality within the federal state) by 40 per cent, removed the word ‘equality’ from its mandate and fundamentally altered the funding criteria for women’s organizations, making research and activities related to activism ineligible for funding (Brodie 2008: 146). Within this climate of entrenched neoliberalism, a conception of sexual assault law reform tied to the advancement of gender equality has been rendered increasingly unintelligible. The most recent amendments to sexual offence provisions, passed in 2008 with the support of a vocal social conservative lobby, increased the age of consent from 14-16, while maintaining 18 as the age of consent for anal sex (Desrosiers 2009). Sexual health, youth and LGBT organizations critiqued this amendment, arguing that it would reduce access to sexual health services. Critics argued that addressing the lack of enforcement of existing sexual offence provisions would be a more effective strategy in combating the sexual exploitation of young people; raising the age of consent is a largely symbolic initiative that would do little to reduce sexual exploitation. Feminist organizations were, however, notably absent from the list of witnesses appearing before the legislative committee on this bill. National women’s groups that were centrally involved in consultations that produced sexual assault reforms in the 1990s have been increasingly silenced as a result of federal funding cuts. In a context where neoliberal political rationalities frame politics as if gender no longer matters, opportunities for future law reforms that might address the persistent gendered realities of sexual violence have diminished. At present, attention is increasingly shifting to the question of how to ensure the enforcement of existing law. One emerging project involves the strategic use of civil and constitutional litigation to compel police to thoroughly investigate complaints of sexual assault, adhering to the existing legal standard for consent. Mounting evidence points to the existence of systemic unfounding (no-criming) by police, a practice that has extremely damaging impacts for survivors who feel that they have been labeled liars by the state. Dubois (2009) has highlighted evidence that confirms that police officers are trained to approach sexual assault investigations with the suspicion complainants are lying. Some categories of complainants, including aboriginal women and women with mental health problems, may be particularly vulnerable to being disbelieved (Dylan, Regehr & Alaggia 2008; Hattem 2009: 33). In 2000, police across Canada declared that there was ‘no crime’ in 16 per cent of sexual assault complaints, compared to 9 per cent of assaults (Johnson 2009: 10-11). Although Statistics Canada no longer publishes rates at which complaints of sexual assault are determined unfounded, recent studies covering four jurisdictions have found rates of between 7 and 32 per cent (Hattem 2009; Dubois 2009). According to one study that examined police files, unfounding was determined to be more prevalent in cases that involved non-strangers and no-force and victims who did not clearly say ‘no’, demonstrating how the doctrinal consent standard fails to guide police decision-making (Hattem 2009). Using the recently confirmed tort of negligent investigation and building on a significant decision that found police negligence in the conduct of a sexual assault investigation a violation of Charter sexual equality (Jane Doe v. Metropolitan Toronto Police (1998) 39 O.R. (3d) 487 (Ont. Ct. Gen. Div.), a group of feminist law professors and students from the University of Ottawa have begun to lay the foundation for claims against police for ‘wrongful unfounding’ (Crew 2009). The concept “wrongful unfounding” refers to the wrongful clearing of sexual assault complaints by police and intentionally draws an analogy with negligent investigations producing “wrongful convictions,” now easily and popularly understood to be a violation of justice. The reconceptualization of the widespread practice of unfounding sexual assault complaints aims to ensure the enforcement of existing law by using litigation and the threat of financial damages to challenge discriminatory police practices. Strategic interventions such as this, using law against itself, open possibilities for reducing the gap between ‘law as legislation’ and ‘law as practice’ in a political climate that is resistant to feminist claims. CONCLUSION Law reform efforts were only one component of a broad-based Canadian feminist strategy that sought to de-individualize sexual violence and place it firmly in the social and political arena as a legitimate object of governmental intervention. As I have argued here, even though statute and doctrine have moved Canadian law in the direction of an ‘only yes means yes’ standard, the transactional logics of affirmative consent operate to decontextualize sexual violence from the social power relations that define it. The atomized frame of criminal law is accentuated in a context of neoliberalism where risk management discourses hail women as hyper-cautious victims of sexual violence and reconstruct vulnerability as a failure of responsibilization. In a context in which sexual violence as a gender equality issue has disappeared from political agendas, the opportunities for law reform have closed. This temporary closure of political spaces has produced a productive strategic emphasis on ensuring enforcement and altering police practices. Restricted opportunities for law reform should also promote critical reflection and prompt a reminder that criminal law reform, even in its most progressive guises, is a limited strategy. As Marcus (1992) has insightfully argued, an emphasis on vindication in the courts has limited effectiveness for a politics of rape prevention. This strategy conceives of sexual violence as a taken for granted occurrence, with only post rape events offering possible occasions for intervention. In the present context, a renewed focus on prevention, including cultivating women’s resistance to their assigned role as safety-conscious victims-in-waiting and engaging men in anti-rape education and politics, constitute promising extra-legal strategies. BIBLIOGRAPHY: Benedet, J. 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