Legally Ahead, Socially Behind

The statistics compiled by Holly Johnson displayed on the PowerPoint presentation in class struck me.  Despite the incredible advancements made to the Criminal Code in Canada to enact an affirmative consent standard, there has not been an increase in women reporting sexual assault and the legislation is not utilized to the fullest extent by the criminal justice system.  For example, we discussed in class how defense attorneys attempt to discredit the victim through the use of personal records (e.g. therapy, medical documents) despite the clear restriction on the use of these files, also ignoring that consent applies to what the individual felt at that specific point in time – any other personal information external to the particular instance in question is irrelevant.  The continued focus on the victim’s role in sexual assault can be explained by the construction of ‘neoliberal sexual agents’.  Individuals are held accountable for sexual assault because of the societal value placed upon responsibilization and self-regulation – continuing to utilize victim-blaming tactics to reinforce the idea that those who have experienced sexual assault are at blame for not taking the necessary precautions to prevent or control the situation.  Law then cannot be relied upon to create effective change as Gotell states, “while valuable in focusing 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” (216). 

I think this is a really important realization and helped me to understand what I like about MacKinnon’s argument.  She recognizes sexual assault as a systemic problem: a direct result of the power relations that consume our society as a result of patriarchy.  She argues that there is a ‘moral magic’ of consent, defined as the “free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity”, that serves to erase power relations that exist between men (powerful) and women (powerless) (MacKinnon 175).  It is deeply troubling to me that such a positive improvement to the understanding of consent in the Criminal Code, spearheaded by feminists, can be used by a neoliberal agenda to de-politicize the issue of sexual assault, but also inspiring to have an affirmative consent standard that is ‘ahead of its time’ suggesting that perhaps society has a chance to catch up so as to realize the systemic nature of sexual assault. 

Thoughts?