Implied Consent and Sexual Assault: Intimate Relationships, Autonomy, and Voice by Michael Plaxton (review)

In this book, Michael Plaxton advocates for expansion of the legal definition of “sexual consent” to include “implied consent.”¹ Like Don Stuart² and Edward Greenspan,³ he is troubled by the effects of the legal definition of sexual consent, in particular, by its potential to deem what Plaxton characterizes as “innocent” or “morally” non-culpable physical contact between intimates as “criminal”—a result Plaxton describes as “counter-intuitive.” Examples offered of “innocent,” albeit non-consensual (no contemporaneous agreement) and therefore “criminal” conduct, include touching the other party in public (caressing her knee under a restaurant table) or private (the impromptu surprise “embrace” or the kiss while she sleeps). These examples, Plaxton suggests, show that ordinary acts of intimacy between parties in accordance with normative arrangements and practices established by them are not criminal acts and should not to be labelled as “crimes.”⁴

Plaxton therefore proposes that the definition of “sexual consent” as “voluntary agreement to participate in the sexual activity in question,” as codified by Parliament in 1992 and first construed by the Supreme Court of Canada in R. v Ewanchuk in 1999, be amended to recognize a role for “implied consent.”⁵ He expressly limits his focus to sexual activity between heterosexual individuals and presumes the male to be the socially dominant party, the female the “consenting” party and the potential complainant. Economic equality is assumed, and issues arising from intersectionality are not addressed. Plaxton claims that recognition of the validity of “implied consent” would advance the equality rights of women by affording them a fuller measure of sexual autonomy free from the state enacted and judicially construed requirement that sexual partners obtain contemporaneous express affirmative consent to sexual activity from each another.⁶ In his opinion, the moral imperative to treat women as ends in themselves requires the adoption of an expanded definition of sexual consent along the lines he proposes.

Plaxton distinguishes “implied consent” from “advance consent” (analyzed in R. v J.A.⁷), defining “implied consent” as “a subjective state in which the individual accepts a set of norms, applying to her at the relevant time, by which the sexual touching in question is legitimate,” even if on the occasion when the touching takes place she does not want to be touched (or lacks capacity due to sleep, unconsciousness, or impairment).⁸ Legitimacy is seen to flow from the recognition of the power of a woman, as an agent, to bind herself to a set of “normative commitments,” rather than from a specific agreement made in advance in anticipation of a specific act (as in “advance consent”). Plaxton states that sexual partners may want to cede “control” over when and how they are sexually touched, even if they are asleep or unconscious or otherwise vulnerable, and suggests (correctly) that this requires an approach to “consent” that is precluded by the definition of consent in section 273.1 of the Criminal Code as interpreted by the courts.⁹

The book is addressed to a general audience, not a scholarly one, and does not provide a comprehensive analysis of the socio-legal context and the legal and political implications of the proposal. The core of the book is instead organized as a discussion of a series of theoretical issues¹⁰ that Plaxton identifies as relevant to the role of “implied consent” in criminal law. A road map is provided.¹¹ Chapter 1 offers an overview of the issues with an emphasis on the “expressive” function of criminal law and the “principle of fair labelling.” Chapter 2 asserts that the “wrong” of sexual assault as defined by Parliament in 1983 lies in “sexual objectification, in the narrow sense of instrumentalization: one person’s use of another as a mere tool for sexual gratification.”¹² The objectives of the further amendments in 1992 are not given equal consideration. In Chapter 3, Plaxton sets out his case for a doctrine of “implied consent...