Thursday, November 6, 2014

The limitations of consent: Jian Ghomeshi, sex and sexual assault

By Darin Nesbitt, Political Science Instructor, Douglas College

Darin Nesbitt

The CBC’s dismissal of Q host Jian Ghomeshi, one of its most recognizable on-air personalities, was swift and surprising. The reason for the decision was initially unclear, but subsequent events revealed why: an increasing number of women and one man - including actor Lucy DeCoutere, lawyer Reva Seth, and a former unnamed CBC employee at Q - have made allegations of assault and sexual harassment.

Ghomeshi revealed on his Facebook page that he participates in BDSM (bondage, dominance, sadism, and masochism). He asserts, “it is truly not anyone's business what two consenting adults do. Sexual preferences are a human right.” The effort to frame this entire affair around consent was purposive. From a legal perspective, consent separates the act of sex from sexual assault, and whether it was expressed is frequently at the heart of sexual assault prosecutions.

Is what two consenting adults do in their bedrooms purely a private matter? Former prime minister Pierre Trudeau, in his then capacity as minister of justice in 1968, famously stated, “there's no place for the state in the bedrooms of the nation,” and that “what's done in private between adults doesn't concern the Criminal Code.” While such sentiments on consensual sex have deeply penetrated mainstream Canadian attitudes, they are disconnected from both consent theory and law.

Even the most passionate defenders of personal autonomy, such as liberal philosopher John Stuart Mill, recognize individual consent has limitations. One cannot consent to become a slave, for example, since the practice of slavery is incompatible with the possession and exercise of individual, political, and legal rights. A person cannot forsake rights that inherently attach to her as a human being and a citizen. Consent therefore has boundaries or limits.

Whether in matters of politics or of sex, theorists grapple with the meaning and application of consent. We can use the act of voting to illustrate its complexity. Many believe voting is a form of consent that authorizes the winning political party and its leader to govern so long as the election process in general was competitive and fair. This view assumes too much.

What we consent to when we vote is in fact unclear. Are we expressing support for the local candidate, the political party, or the leader of the party? Are we consenting only to what candidates pledged during a campaign, or for elected officials to exercise their judgment afterwards? Even if we grant that voting authorizes governments, how long does this consent to do so last? A day? A year? The meaning of consent raises more questions than answers.

The Supreme Court of Canada established the legal principle that a person cannot consent to an assault that causes bodily harm, and other courts have held that a person cannot consent to sexual activity that causes harm. Should Ghomeshi face sexual assault charges as a result of his particular “sexual preferences,” his appeal to the principle of consent will likely be as unsuccessful as Winston Blackmore’s use of religious freedom to justify his exploitative, harmful, and abusive polygamous practices at Bountiful, B.C.

Opinions expressed in this story are those of the author and do not necessarily represent those of Douglas College.