Snelgrove verdict brings consent into focus

Police officer’s acquittal in sexual assault case demonstrates how justice system fails rape victims.

Thank god the Snelgrove trial has provoked protests, graffiti and outrage.

Because it could far too easily have provoked a defeatist shrug.

Because we have to struggle to think of an example where a powerful man actually lost a high-profile trial against a woman when it hinged on the issue of consent.

Because every flawed outcome entrenches rape culture in spite of all the hard work of many good people who are struggling to change that culture.

Because our legal system allows men who were mistaken about consent to get away with rape.

Thank god for the outrage.

Thank god for the graffiti, which signals visibly to the world that many in our province are not okay with this.

Thank god for the protests, which show we will not allow rape culture to define our province’s future, no matter how much of a stranglehold it has on our judicial system at present.

The charge to the jury

There has been much discussion on social media and elsewhere about Judge Marshall’s reminder to the jury that “The law is: mere drunkenness is not the equivalent of being incapable”; that mere drunkenness does not (legally) mean one cannot give consent.

As though the jury needed to be reminded of a message that is reinforced daily, through a rape culture that continues to push and prod and undermine the boundaries of consent.

As though the jury needed to be reminded that we live in a society where rape culture is still the norm, and where men’s right to pursue sex without fearing the consequences is still protected by a legal system that blurs the question of what constitutes legal consent and buries it in legal murk.

As though the jury needed to be reminded that rape culture allows men to have sex whenever and wherever they want unless it is made abundantly clear “beyond a reasonable doubt” that they should have known the sex was not wanted.

As though our legal system might actually encourage a jury to think outside the rape culture box, and challenge the hefty weight of centuries of patriarchal precedent.

Telling a jury they must make up their minds based on what they have heard in court may indeed be standard practice in trials like this, but it means privileging a sexist society that has had years to imprint anti-consensual messaging on all of our minds.

It takes a constant, conscious effort to push back against the knee-jerk reactions we’ve grown up with: that people are responsible for their own actions, that if someone doesn’t physically fight back against sex, or explicitly indicate refusal, or explicitly appear incapable of doing so, then they are consenting. That an honest, albeit mistaken, belief in consent is enough for the court to let you get away with rape.

Yet the dictates of our outdated legal system are such that rather than reminding jurors of the nuanced, fraught and highly contested nature of consent, the judge was compelled to instruct the jury that drunkenness can still lead to consent and that they must make up their minds solely based on what they heard in court, not on what contemporary researchers and advocates are saying about the nature of consent—in fact, they were refused access to this information.

Photo by Daniel Smith.
Photo by Daniel Smith.

The result may hold up in court, but it’s not right. Because judges and juries ought to have the space to reject the flawed messaging society has imprinted upon them. Because the law needs to do a better job of reflecting emerging and contemporary understandings of consent. Because men ought to be held to a higher standard when seeking consent from someone for sex. At all times, but certainly when they’re trained in lethal force, carrying a gun, and representing an institution that exists to serve and protect people in the community.

It is right for us to be upset. It was not just Snelgrove – a deeply flawed man, an “idiot” according to his own lawyer – who faces the accusation of sexual assault.

It’s the state. The state put him in his uniform. The state gave him his gun. The state trained him in lethal force and sent him out on the streets.

When you’re armed and working on behalf of the state, you don’t have the right to obtain consent for sex. Sexual consent is not something you can be given when you’re patrolling the streets with a gun on your hip at three in the morning. Let alone in someone’s house without a witness.

Yes, it’s legitimate to protest verdicts

Some have argued that protesting the verdict undermines the justice system. Nonsense. Our justice system is political. Our justice system enforces the laws and practices that we as a society have decided, through political processes, to put in place.

And when we want those laws, or the enforcement of those laws, to change, then it is our right and duty to act politically.

The justice system, like all systems, must change and adapt to the times. Those protesting the verdict are protesting a system that is behind the times, and which fails to dispense justice in a manner in which many of us feel it ought to.

Some have argued that protesting the verdict undermines the justice system. Nonsense. Our justice system is political.

When people respond with outrage to a courtroom verdict, all too often those on the sidelines – especially the men who have not experienced sexual assault or the daily fear of it – respond with blasé responses like ‘don’t judge if you weren’t there in the courtroom’ or ‘if you’re not a lawyer, you don’t have the knowledge to speak out on legal matters.’

That’s not an answer – it’s an effort to shut down change.

The fact is, when a courtroom verdict provokes outrage of this nature, very often it is indicative of a dissonance between how justice is practiced and how society expects it to be practiced.

Some people disparage protests as ‘mob-rule’ or the ‘court of public opinion,’ and then haul out examples of unpopular-at-the-time yet now-considered-progressive court verdicts – for instance, in favour of equal civil rights, or queer rights.

But this case has not been about people pushing the boundaries of consensual activity, it’s been about holding a powerful man with a gun to account for sex that a woman says was not consensual. And public opinion is, rightly, sick and tired of a legal definition of consent that allows men to get away, time and again, with sexual acts that women did not consent to.

Men benefit from the convoluted legal definition of consent

Let’s read between the lines. When people talk about ‘the rights of the accused’; when they talk about ‘not undermining the justice system’, many of them are really talking about men’s desire to have sex without fearing the consequences. They’re speaking on behalf of men who are worried that if drunkenness calls consent into question, they won’t be able to have sex comfortably and fearlessly.

The legal system, after all, was built by men.

These men want the comfort of a way out, of an assurance that so long as there were no witnesses and they stick to their story, they won’t be called to account if it turns out the sex they had while drunk (or sober) was not wanted, and if it turns out they either did not care or did not take enough effort to ensure that it was.

The notion that having sex while drunk could come back to haunt them if it turns out the sex was not consensual strikes fear in the hearts of these men, and not just in the hearts of predatory men. Even men who would never dream of violating their partner still access the privilege of knowing that if they did go to court over it, chances are strong that they wouldn’t wind up facing legal consequences.

They probably wouldn’t even face social consequences—they would probably be accepted back by their friend-group, and she would be the one facing ostracism from her peers.

If you are a man, no matter whether you’ve violated someone or not, and no matter how strongly you profess to believe in consent, you still have access to the privilege of it being highly unlikely you’ll face consequences for violating someone else’s body. That privilege implicitly shapes how you act in the world, whether you realize it or not; it shapes how you form opinions on what you think is important, right, and just.

When (mostly male) commentators talk about the difficulty of balancing the rights of the accused with statements of accusers in sexual assault trials, what they really find difficult is the concept of giving up that extra layer of men’s bulletproof protection against facing the consequences of unwanted sex sexual assault.

There is an unspoken fear that shifting the boundary of consent—that accepting drunkenness as a barrier to consent, or privileging a woman’s perspective of consent over that of a man—will wind up either with no one having sex, or with all men behind bars.

Um. No.

Sex always comes with consequences, from unwanted pregnancy to sexually transmitted infections. When we have sex, we try to mitigate the negative consequences as best we can but they are always there to some degree. Being held accountable for the circumstances and ways in which consent was obtained is one of those consequences.

If it turns out that what you thought was consent was in fact not consent from the perspective of your partner, and even if they do not confront you about it until the next day (or the next month), then your response should not be a hasty retreat into the definitional murk of the law—it ought to be reticence, accountability, and a willingness to face the consequences and hopefully change as a result.

Photo by Daniel Smith.
“So long as men continue to enjoy the privilege that stems from the complex legal murk of consent, it is women (and queer and trans folks) who will continue to feel unsafe in our society,” writes Hans Rollmann. Photo by Daniel Smith.

Yet, as always, many men want the comfort of an easy way out. And, as always, it is women who are expected to take on the greater negative burden of the consequences from sex. This is largely thanks to the fact that it’s centuries of men who have developed and defined our judicial system, with its naïve expectation that adversarial confrontation in a courtroom can actually bring about justice (particularly in the case of crimes involving power, like sexual assault).

So long as men continue to enjoy the privilege that stems from the complex legal murk of consent, it is women (and queer and trans folk) who will continue to feel unsafe in our society. So yes, unless men are 100 percent certain they’ve obtained consent, and unless their partner does not refute that either during the moment or down the road, they should have every reason to feel insecure. And we should have every reason to demand a legal system that no longer protects some men’s happy-go-lucky, “reasonable”-even-if-mistaken belief their sex was consensual.

Maybe then we’ll start to build a society, and judicial system, that takes consent a hell of a lot more seriously.

Until then, let the outrage continue.

Hans Rollmann is an editor, writer, researcher and organizer with a penchant for chocolate and a knack for limericks.

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