Why would a woman behave as if she is consenting to sex she doesn’t want? Why would she smile in a video and say she’s OK with the sex that just took place agreeing that it was “all consensual”? Why should anyone believe a young woman who told a court she was on “autopilot,” dissociated, and adopted a “porn star persona” to appear to go along with things?
Can anyone be expected to believe she didn’t consent to the sexual acts in which she participated during that fateful night that the Hockey Canada sexual-assault trial centred on? Isn’t she just a liar and, as the trial judge put it, utterly lacking in “credibility and reliability”?
The answers to these and other crucial questions lie at the heart of a deeper understanding of what consent is – and isn’t.
Consent is poorly understood by many people, including some in the legal profession. Acquiescence, accommodation and appeasement are not consent.
Many people believe the responses of E.M., the young woman who ended up in a hotel room with a group of young hockey players she didn’t know, amounted to consent. Many people say she could have resisted or left the London, Ont., hotel that night in 2018.
But affirmative consent in law requires voluntary agreement. Indeed, voluntary agreement is the very definition of consent in Canada’s Criminal Code.
In too many sexual encounters, voluntary agreement is not present or communicated. Too often, a woman’s silence, accommodation or passivity is mistaken for consent. This is a mistake in law. The Hockey Canada judgment and acquittal is a missed opportunity to advance the understanding of consent.
The trial failed to grasp what is counterintuitive
The vast majority of sexual assault and unwanted sex is never reported to the police, never making it anywhere near the criminal justice system, as voluminous research has documented. This is the sexual-violence “justice gap.”
But in sexual assault cases that do land in a courtroom, a failed understanding of affirmative consent in law inevitably leads to flawed legal decision-making and judgments.
Canadian criminal law requires an interrogation of the conditions that undermine voluntary agreement. The Hockey Canada decision didn’t do that. In failing to do so, this judgment has moved us farther away from confirming and enriching the robust legal definition of consent entrenched in our criminal law.
Worse, the public shaming of E.M. will likely decrease confidence in the criminal justice system and deter other women from even considering reporting their sexual assault experiences.
Fundamental questions about consent need better legal answers.
The disappearance of the men’s aggressive conduct
One of the most significant of the many troubling reverberations from the acquittal of all five hockey players is the failure to grasp what may appear to be the counterintuitive nature of E.M.’s responses to what happened.
Many of the fundamentals of what happened in that hotel room are not contested. They have been proven. Mike McLeod sent a group text received by 18 players on the Canadian national junior hockey team, asking: “Who wants a 3-way quick. 209-mikey.”
McLeod lied to police investigator Stephen Newton on Nov. 17, 2018, claiming he had “no idea” why the men showed up in his room. It was a “complete mystery,” he feigned. Yet he had explicitly offered his teammates “gummers” – oral sex – from E.M. as if she were his sex toy available to his buddies. He also disingenuously professed to being “shocked” when events became sexual with the very teammates he invited into that hotel room with E.M.
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Inexplicably, Justice Carroccia said nothing in her judgment about McLeod’s blatant falsehoods as they relate to his credibility or reliability. Instead, she focused on excoriating E.M.
After a consensual sexual encounter with McLeod, E.M. reported that she went to the bathroom, and when she came out, naked, the room was filled with as many as nine men, all strangers. She described the situation as stressful, threatening. Unpredictable.
The men joked about inserting their golf clubs inside of her and putting a golf ball in her vagina.
As E.M. lay on the floor on her back, one of them did the “splits,” his penis touching her face. It was gross and degrading, she said. Some of the men hit her. Some spat on her.
Why women “go along”
Many women recognize themselves in the complexity and apparent contradictions of E.M.’s testimony as she described how she reacted and coped in that hotel room.
Women sometimes channel their intense psychological resources into making uncomfortable or overwhelming experiences feel bearable and manageable. It is not uncommon for women who feel compromised, coerced, or cajoled in sexual encounters to go along with the situation just to “get through it.”
Accommodating an unwanted sexual situation can even lend a fleeting sense of mastery over it. This can seem perverse to those unfamiliar with complex and gendered psychological dynamics of inequality.
When someone dissociates, which E.M. described, automatic social reflexes like smiling or laughing can mask numbness, panic, or a feeling of not being present. The term for it is incongruent affect, when outward expressions don’t match inner emotions. Appearing to be a “good sport” and “going along” with things can also make a woman feel more safe in the face of sexual threat and intrusion by preventing things from escalating and getting out of control.
Women sometimes act like they enjoy situations they abhor or don’t want. The forced smile and fake orgasm are examples of this. Much mainstream pornography saturating our society offers a masterclass in the politics of sexual submission, instructing women that the proper response to being sexually violated or degraded is to act as if they like it.
In a society organized around gender inequality, women are socialized to value the needs and wants of men over their own. It’s a form of self-denigration. But women are often rewarded for it.
When men feel entitled to sexual servicing from women, when it feels natural to objectify them, we see the kind of conduct described in that infamous hotel-room encounter in London, Ont. The NHL has called it “disturbing” and “unacceptable.”
The nuances of non-consent
Consent confusion is longstanding problem, and the intense public and media scrutiny of the trial and verdict has further focused attention on what consent looks like and what consent requires.
To understand the nuances of non-consent in many cases, including this one, the question of consent needs to be treated with care and complexity. It’s not difficult for anyone legally trained to grasp that “beyond a reasonable doubt” was difficult to meet on the facts of this case.
In the end, the Crown focused on the “honest but mistaken” belief-in-communicated-consent defence, arguing that the five men didn’t take reasonable steps to ensure consent, especially given E.M.’s heightened vulnerability in an intimidating situation.
The defence focused solely on subjective consent, constructing a distorted characterization of E.M.’s state of mind. Lawyers launched a co-ordinated, intense, virulently victim-blaming and rape-myth infused attack on E.M.
They explicitly accused her of lying, (mis)characterizing her as aggressively demanding sex from the men, and claiming she fabricated sexual-assault allegations because she “regretted” group sex or was seeking money. (The incoherence of this latter line of attack is made obvious by the fact that E.M. had already won a financial settlement before she agreed to testify at trial.)
Canadian law’s progressive, affirmative-consent standard is admired in many jurisdictions. But
the circumstances described at trial by E.M., many corroborated by the hockey players themselves, were nowhere near conducive to voluntary agreement to sexual activity.
The verdict is only a legal part of this story. The other part is the deeply problematic conduct of the five hockey players.
The question of masculine entitlement
There has been an outpouring of support for E.M. from the general public and women’s organizations across the country. But, disturbingly, some people see the verdict as vindication for the men accused, especially in the so-called misogynistic “manosphere.” This is a distortion that requires vigorous pushback.
Attention must now shift to some of the fundamental questions this case raises for society at large and for hockey culture in specific:
What kind of masculine entitlement and arrogance enabled a group of young male athletes to pursue being sexually serviced by a young woman they described as acting “crazy” and “weird”?
What led them to think it acceptable to urge each other to “spit on it,” (note the objectifying language) and to slap her on the behind so hard it “looked like it hurt” (something Justice Carroccia inexplicably described as “foreplay”).
Yet they persisted, even trying to bring more hockey players into the room. One of the men felt the need to make the so-called, after-the-fact “consent videos” for “cover.” And their text messages suggest they conspired to align their stories once they learned they were being investigated.
This is the conduct organizations such as the NHL, Hockey Canada and others, must critically examine when reviewing this case and its broader significance. In particular, they must reckon with their relationship to the culture of sexism in men’s hockey and the many institutional failures to rectify it, including Hockey Canada’s secret slush fund used to pay off cases in which groups of hockey players sexually assaulted young women.
All of these issues need to be part of a broader social engagement about what affirmative consent to sex looks like and requires of us, in law and in life.
