{"id":293810,"date":"2016-06-03T20:37:35","date_gmt":"2016-06-04T00:37:35","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/2016\/06\/sexual-assault-isnt\/"},"modified":"2025-08-28T15:27:59","modified_gmt":"2025-08-28T19:27:59","slug":"sexual-assault-isnt","status":"publish","type":"post","link":"https:\/\/policyoptions.irpp.org\/fr\/2016\/06\/sexual-assault-isnt\/","title":{"rendered":"What sexual assault isn’t"},"content":{"rendered":"

Last week, in the Toronto Star <\/a>, Aylshah Hasham and Christopher Reynolds reported\u00a0on 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: \u201cThis does not describe the gravity of the crime that was committed against me.\u201d 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.<\/p>\n

I would make three\u00a0observations. First, Whaley\u2019s 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\u2019s 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.<\/p>\n

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\u00a0roughly<\/em>\u00a0captures 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 \u2013 the act of\u00a0killing<\/em>\u00a0<\/em>is central to what makes murder (or manslaughter) the particular kind of wrong it is. Likewise,\u00a0the offence of robbery is fundamentally different from that of theft, as Stuart Green<\/a> 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 \u201cwrongful taking\u201d would fail to respect the moral significance of force, and diminish the criminal law\u2019s authority as a guide.<\/p>\n

For much the same reason, I have\u00a0argued<\/a>\u00a0that, 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\u2019s 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\u00a0elsewhere<\/a>, a high school student who has texted sexually explicit photographs of her boyfriend\u2019s 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\u2019 sexual gratification, the student\u2019s behaviour amounts to a toxic form of \u201cslut-shaming.\u201d 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,\u00a0when it is precisely her sexual agency that was attacked<\/em>. <\/em>That being the case, it would be more appropriate to charge her with the offence of\u00a0nonconsensual distribution of intimate images<\/a>.<\/p>\n

The Supreme Court of Canada has acknowledged the significance of \u201cfair labelling\u201d \u2014 most notably in its decisions in Vaillancourt<\/em><\/a> and Martineau<\/em><\/a>. 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.<\/p>\n

This brings me to Whaley. It is, of course, possible to describe his behaviour as \u201cmischief to property.\u201d 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\u2019s 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\u2019s cubicle. It obscures the importance of the fact that Whaley, by rubbing his penis against the victim\u2019s 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\u2019t capture that.<\/p>\n

According to Hasham and Reynolds\u2019 report, the complainant regards Whaley\u2019s 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\u2019s really beside the point. The complainant knows that, under existing law, Whaley\u2019s behaviour could not be successfully prosecuted as a sexual assault. Her point is that the offence of sexual assault\u00a0should<\/em>\u00a0be expanded so that it encompasses this\u00a0sort<\/em>\u00a0<\/em>of wrong. Is she right?<\/p>\n

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 \u201csexual assault.\u201d 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 \u201crape culture\u201d \u2014 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\u00a0in and of itself<\/em>. 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.<\/p>\n

The suggestion that Whaley\u2019s conduct amounts (at least in moral substance) to sexual assault, seems to follow from the complainant\u2019s experience of it as an assault\u00a0upon her mind<\/em>. 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 \u201cfeels like she was forced into oral sex.\u201d 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 \u201cdisgusting,\u201d but not dangerous in and of itself.<\/p>\n

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\u00a0actually<\/em>\u00a0<\/em>had their sexual and physical autonomy violated, in many instances experiencing trauma as a result. It is an important difference.<\/p>\n

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<\/a>.) 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.<\/p>\n

Parliament could, of course, decide to\u00a0make<\/em>\u00a0this 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\u2019s behaviour was sexually objectifying, but so are many things that don\u2019t attract criminal sanctions. Yes, it was \u201cdisgusting,\u201d but we do not tend to think that the mere fact that conduct is disgusting or \u201cgross\u201d 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 \u201cfits,\u201d we should compare it with other offences targeting objectification in some way or another.<\/p>\n

Any attempt to characterize the wrong in a case like this will need to deal with three inconvenient facts. First, if Whaley\u2019s conduct can properly be construed as a\u00a0criminal<\/em>\u00a0<\/em>wrong, it can\u2019t be because this amounts to \u201ccriminal harassment.\u201d It doesn\u2019t. 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.<\/p>\n

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.<\/p>\n

Finally, it is the same\u00a0sort<\/em>\u00a0<\/em>of privacy violation that we encounter in cases of voyeurism or illegally entering a dwelling. Whaley did not invade an individual\u2019s intimate personal space, since his activities took place in the complainant\u2019s\u00a0work<\/em>place. If anything, what he has done is transform a space that\u00a0ought<\/em>\u00a0<\/em>to be\u00a0im<\/em>personal into an intimate one. By spreading his semen around the complainant\u2019s office, he has psychologically \u201ccorrupted\u201d it \u2014 making her feel that, simply by going to work in the morning, she is unwillingly participating in someone else\u2019s sexual drama. In that respect, whether intentionally or not, he has effectively diminished the victim\u2019s ability to choose how she wants to participate in the public sphere; what role to assume.<\/p>\n

Understood in this way, Whaley\u2019s conduct certainly bears an affinity to\u00a0some<\/em>\u00a0instances of voyeurism \u2013 in particular, cases in which the victim was surreptitiously observed or recorded in a quasi-public space for a sexual purpose. (See, for example,\u00a0this discussion<\/a>\u00a0\u2013 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\u2019s 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.)<\/p>\n

As Mathen observed, the criminal law often struggles to keep up with innovations in serious wrong-doing. That shouldn\u2019t 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\u2019s 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.<\/p>\n

 <\/p>\n

\n

Do you have something to say about the article you just read? Be part of the<\/em>\u00a0<\/em>Policy Options\u00a0<\/em>discussion, and send in your own submission. Here is a<\/em>\u00a0<\/em>link<\/em><\/a>\u00a0<\/em>on how to do it. |\u00a0Souhaitez-vous r\u00e9agir \u00e0 cet article ? <\/em>Joignez-vous aux d\u00e9bats d\u2019<\/em>Options politiques\u00a0<\/em>et soumettez-nous votre texte en suivant ces<\/em>\u00a0<\/em>directives<\/em><\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Last week, in the Toronto Star , Aylshah Hasham and Christopher Reynolds reported\u00a0on 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 […]<\/p>\n","protected":false},"author":889,"featured_media":292986,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","ep_exclude_from_search":false,"footnotes":""},"categories":[],"tags":[8562],"article-status":[],"irpp-category":[],"section":[],"irpp-tag":[],"class_list":["post-293810","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-sexual-misconduct-fr"],"acf":[],"yoast_head":"\nWhat sexual assault isn't<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/policyoptions.irpp.org\/fr\/2016\/06\/sexual-assault-isnt\/\" \/>\n<meta property=\"og:locale\" content=\"fr_FR\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"What sexual assault isn't\" \/>\n<meta property=\"og:description\" content=\"Last week, in the Toronto Star , Aylshah Hasham and Christopher Reynolds reported\u00a0on a man who, among other things, deposited his semen into the coffee mug of a female co-worker. 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