A disturbing crime before the courts raises questions about how we should define wrongdoing.

Last week, in the Toronto Star , Aylshah Hasham and Christopher Reynolds reported on a man who, among other things, deposited his semen into the coffee mug of a female co-worker. He has pleaded guilty to criminal mischief to property. But few people seem to be happy with that outcome. In particular, the victim of the offence has complained that convicting the offender for a property crime misrepresents the nature of the wrong that she has suffered. As she put it: “This does not describe the gravity of the crime that was committed against me.” What happened to her is, she maintains, more properly characterized as a sexual assault, though she concedes that existing law would not recognize is as such.

I would make three observations. First, Whaley’s victim is absolutely correct in thinking that the offence of mischief to property fails entirely to capture the wrong perpetrated in this case, and that this matters. But, and this is my second point, the offence of sexual assault also fails, albeit for quite different reasons. Finally, in considering whether Whaley’s conduct should be regarded as criminally wrongful in the first place, we need to pay close attention to how it relates to other offences targeting sexual objectification.

Criminal law is not about only punishment. Its principal object is to guide citizens and members of the public in such a way that they do not commit crimes in the first place, and therefore do not need or deserve to be punished. With that expressive function in mind, Parliament should label and define prohibited courses of action in a manner that at least roughly captures what is wrong with the conduct it prohibits. Thus, to take an obvious example, the offence of murder requires the Crown to do more than show that the defendant inflicted bodily harm – the act of killing is central to what makes murder (or manslaughter) the particular kind of wrong it is. Likewise, the offence of robbery is fundamentally different from that of theft, as Stuart Green says, since one involves the use or threat of force, whereas the other does not. Simply collapsing robbery and theft into a single amorphous offence of “wrongful taking” would fail to respect the moral significance of force, and diminish the criminal law’s authority as a guide.

For much the same reason, I have argued that, in deciding whether and how to charge an individual for a given course of action, the Crown should pay careful attention to the precise nature of the wrong that has (ostensibly) been committed. It is not good enough to say that the defendant’s conduct technically satisfies the elements of a given offence, if that offence does not target the sort of wrong he or she is thought to have perpetrated. Consider, by way of an example I have used elsewhere, a high school student who has texted sexually explicit photographs of her boyfriend’s ex-girlfriend. That conduct may technically be construed as the distribution of child pornography. Prosecuting it on that basis, though, may fail to accurately reflect the nature of the wrong; whereas child pornography offences target the exploitation of children for others’ sexual gratification, the student’s behaviour amounts to a toxic form of “slut-shaming.” To put the matter another way, treating the photographs as child pornography seems to implicitly deny the sexual agency of the woman whose pictures were distributed against her will, when it is precisely her sexual agency that was attacked. That being the case, it would be more appropriate to charge her with the offence of nonconsensual distribution of intimate images.

The Supreme Court of Canada has acknowledged the significance of “fair labelling” — most notably in its decisions in Vaillancourt and Martineau. In those cases, however, the Court tended to emphasize the significance to the defendant, and downplay the significance to the victim. As the above examples suggest, that is too narrow an understanding. It matters that, when a person is killed, her death is treated as morally interesting; that, when a person is robbed at knifepoint, the significance of the physical threat is acknowledged by the state. It matters that an attack on sexual agency is recognized, and is not obscured by effectively denying that there was any sexual agency to attack.

This brings me to Whaley. It is, of course, possible to describe his behaviour as “mischief to property.” But this surely mischaracterizes what makes it morally objectionable. After all, the problem is not simply that he damaged or dirtied the office equipment or the victim’s mug. Such a description would just as easily apply if he had distributed (untainted) Kool-Aid, or some other harmless but messy substance, around a male co-worker’s cubicle. It obscures the importance of the fact that Whaley, by rubbing his penis against the victim’s phone, and depositing his semen in locations where she would be expected to come into contact with it, effectively made her a prop in his sexual fantasies. This is more than making a mess. It is a deliberate act of sexual objectification. The offence of criminal mischief doesn’t capture that.

According to Hasham and Reynolds’ report, the complainant regards Whaley’s conduct as a kind of sexual assault. In terms of existing black-letter law, that is a nonstarter. Sexual assault requires the intentional application or threat of force. But that’s really beside the point. The complainant knows that, under existing law, Whaley’s behaviour could not be successfully prosecuted as a sexual assault. Her point is that the offence of sexual assault should be expanded so that it encompasses this sort of wrong. Is she right?

I think the straightforward answer is no. There is no question, for the reasons I have already provided, that this kind of behaviour is objectifying. There are, however, a variety of ways in which one person can objectify another, and not all of them could reasonably be characterized as “sexual assault.” Offences prohibiting the distribution of obscene materials, public indecency, the purchase of sexual services, the nonconsensual distribution of intimate images all target, in one form or another, the sexual objectification of women. And all can be seen as related to a broader “rape culture” — either helping to sustain a culture in which sexual violence against women is endemic, or allowing people to exploit it for personal or commercial gain. Only sexual assault, though, targets the act of physical sexual violence as a wrong in and of itself. The nonconsensual application of physical force to another human being is a special kind of wrong, and that is a message that the criminal law should continue to send.

The suggestion that Whaley’s conduct amounts (at least in moral substance) to sexual assault, seems to follow from the complainant’s experience of it as an assault upon her mind. By placing his semen in the mug, and rubbing his penis against the telephone receiver, he engineered a situation in which the complainant experienced a kind of perverse intimacy with him. Hasham and Reynolds report that the complainant “feels like she was forced into oral sex.” Whaley was initially charged with administering a noxious substance, but the charge was withdrawn, likely because his semen posed no clear physical threat. His conduct was “disgusting,” but not dangerous in and of itself.

Again, to the complainant, that arguably misses the point, since it is the psychological contamination that represents the injury. But here we need to be quite careful. Feeling assaulted is not the same thing as being assaulted. We treat sexual assault as a serious moral and legal wrong, but not because its victims feel like their sexual and physical autonomy was violated. It is wrong because victims have actually had their sexual and physical autonomy violated, in many instances experiencing trauma as a result. It is an important difference.

It is important that we reflect at length on the nature of the wrongs targeted by the offence of sexual assault. (I have done so in my 2015 book.) Cases like that of Whaley provide an opportunity for just this sort of reflection. We may think that he has engaged in behaviour that is worthy of condemnation in a criminal court, but it is not sexual assault.

Parliament could, of course, decide to make this sort of behaviour a crime. But before doing so, it would be useful to come to grips with what, precisely, the nature of the wrong is. Yes, Whaley’s behaviour was sexually objectifying, but so are many things that don’t attract criminal sanctions. Yes, it was “disgusting,” but we do not tend to think that the mere fact that conduct is disgusting or “gross” is enough to make it worthy of criminalization. The point of the criminal law is not to address every wrongful course of action under the sun, but to guide members of the public away from particularly grave moral wrongs. In determining whether and how this conduct “fits,” we should compare it with other offences targeting objectification in some way or another.

Any attempt to characterize the wrong in a case like this will need to deal with three inconvenient facts. First, if Whaley’s conduct can properly be construed as a criminal wrong, it can’t be because this amounts to “criminal harassment.” It doesn’t. As Carissima Mathen observes, cited in the Hasham and Reynolds piece, harassment would require proof that Whaley intended the victim to learn of his conduct. There is no suggestion that he did. His conduct was (as far as anyone can tell) intended merely to fuel his private fantasies, not designed to be discovered by the victim.

Second, as I have said, the wrongfulness of his behaviour cannot be attributed to its physical dangerousness, since it is far from obvious that his semen posed any risk whatsoever, or that he had any reason to believe it might.

Finally, it is the same sort of privacy violation that we encounter in cases of voyeurism or illegally entering a dwelling. Whaley did not invade an individual’s intimate personal space, since his activities took place in the complainant’s workplace. If anything, what he has done is transform a space that ought to be impersonal into an intimate one. By spreading his semen around the complainant’s office, he has psychologically “corrupted” it — making her feel that, simply by going to work in the morning, she is unwillingly participating in someone else’s sexual drama. In that respect, whether intentionally or not, he has effectively diminished the victim’s ability to choose how she wants to participate in the public sphere; what role to assume.

Understood in this way, Whaley’s conduct certainly bears an affinity to some instances of voyeurism – in particular, cases in which the victim was surreptitiously observed or recorded in a quasi-public space for a sexual purpose. (See, for example, this discussion – though in this case the defendant was acquitted.) That kind of behaviour, too, undermines the assurance that women have that they can freely choose how to engage with others in the public sphere. Whaley’s interference cannot be construed as voyeurism because it does not involve observation or recording of the complainant. But its effect is broadly similar, and I have little doubt that Parliament could devise an offence to capture it. (I leave it to others to debate what the appropriate sanction would be.)

As Mathen observed, the criminal law often struggles to keep up with innovations in serious wrong-doing. That shouldn’t give us reason for despair. It is always open to Parliament to use its criminal law-making power to provide fresh guidance and insight into the outer limits of acceptable behaviour. In considering whether and how it should do so, though, we should keep in mind the criminal law’s function, and how the various courses of action it prohibits relate to one another. In this way, we help to ensure that the criminal law gives citizens a useful moral map.

 


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