Supreme Court decision in Gladue case could change how Canada handles consent and sexual assault

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Supreme Court decision in Gladue case could change how Canada handles consent and sexual assault

The justices will determine whether or not Bradley Barton should be retried in the death of Cindy Gladue and, in doing so, they will consider whether or not a sexual partner could be found guilty of sexual assault if both parties agreed to the activity and figured it was harmless. The top court will also consider if there should be different, stricter standards of consent for sex workers.....

In its factum, it argues there should be different standards of consent, based on the sort of relationship in question — specifically, when it comes to selling sex.

“In identifying at what point commercialized sexual activity resulting in bodily harm should be criminalized, the focus is not only on whether the conduct causes harm, but on whether that harm is of a degree that is acceptable to society,” the factum states. “Limiting what types of paid sexual activity can be lawfully consented to is necessary to shield a vulnerable group from sexual exploitation and abuse.”....

“It’s yet another way of infantilizing sex workers. We don’t need these special protections, which will be used against us,” Scott said. “But, no, I don’t think people can consent, or be able to consent, to something that causes serious bodily harm, or death. Whether sex is involved or not. Whether money is involved or not. We don’t need this other tier against sex workers.”

I think Scott is missing the point that under labor law there are limits to what employers are permitted to ask of employees. Willingness is not the deciding factor. For example, people die taking dangerous selfies. That doesn't mean photography studios can pay someone to deliberately risk their life for a photo even though some people do it willingly. Labour laws acknowledge the coercive nature of money. If there were no minimum wage people would be working for a dollar an hour because employers will exploit.

voice of the damned

^ I get what you're saying, but on the other hand, if the compensation is enviable enough, I don't think too many of us care much if a worker is exposed to harm. I personally don't lose a lot of sleep over whether or not a NASCAR driver crashes his car and burns to a crisp.

Of course, the purpose of minimum wage is to prevent the compensation from becoming too unenviable. But once that criterion has been met, I wonder(sincerely) at what point on the pay scale worker safety continues to be an issue. Someone shoudn't be expected to take dangerous selfies for twenty grand a year. But what if it's 200 grand a year?  

Pondering

voice of the damned wrote:

^ I get what you're saying, but on the other hand, if the compensation is enviable enough, I don't think too many of us care much if a worker is exposed to harm. I personally don't lose a lot of sleep over whether or not a NASCAR driver crashes his car and burns to a crisp.

Of course, the purpose of minimum wage is to prevent the compensation from becoming too unenviable. But once that criterion has been met, I wonder(sincerely) at what point on the pay scale worker safety continues to be an issue. Someone shoudn't be expected to take dangerous selfies for twenty grand a year. But what if it's 200 grand a year?  

Racing is risky but it isn't death defying like standing on the edge of a volcano. A multitude of measures are taken that protect drivers. They walk away from the most spectacular crashes. They work their way up to 200K. By the time they reach that point it isn't survival money. Same goes for boxing. People pay to do it as a sport for years before they are offered money to fight. 

I think the purpose of minimum wage is to protect the state from having to support everyone or having insufficient workers to tax. 

Mr. Magoo Mr. Magoo's picture

Quote:
For example, people die taking dangerous selfies. That doesn't mean photography studios can pay someone to deliberately risk their life for a photo even though some people do it willingly.

Then how do we have photos taken of dangerous wild animals, or war zones, or (to use your example) the edges of volcanoes and such?

 

Pondering

Mr. Magoo wrote:

Quote:
For example, people die taking dangerous selfies. That doesn't mean photography studios can pay someone to deliberately risk their life for a photo even though some people do it willingly.

Then how do we have photos taken of dangerous wild animals, or war zones, or (to use your example) the edges of volcanoes and such?

Those are activities done by trained professionals who have other choices and are often working freelance or are already in the war zone. Storm chasers do try to stay out of the way and they have lots of equipment and are following statellite tracking. People who take pictures of volcanoes professionally use drones.

Just in case anyone is misunderstanding me here I am not using this as a means of pushing abolition. 

Although I am against all prostitution there is a trend towards accepting both terms, prostitution and sex worker, depending on the context. No one can argue that street prostitution and getting a sugar daddy have a lot in common in terms of risk factors. Canada already has a law that has been debated so this isn't about whether or not prostitution should be legal. 

As I understand it street prostitution represents only about 10% of the industry as a very loose estimate. It could be 5% or 15%, whatever, it isn't the majority. 

So, I did not post this to put all of prostitution/sex work on trial. 

This case was also impacted by racism as the young woman was repeatedly referred to as an indian prostitute in court which I hope we can all agree was dehumanizing. 

Apparently there was a pornographic torture video found in the room that wasn't permitted at trial. 

Sean in Ottawa

I think the activity that should be outlawed is desperation and power imbalances.

Some people may consent but how do we know when desperation exists for some?

Consent is meaningless without choice.

Certainly male power of women as it exists in our society is without consent or justification.

In a world that would have a basic income and would not have the extreme power imbalances that we see at the human level, only then could we have a true measure of consent.

Yes, all this is related.

Mr. Magoo Mr. Magoo's picture

Quote:
Those are activities done by trained professionals who have other choices and are often working freelance or are already in the war zone. Storm chasers do try to stay out of the way and they have lots of equipment and are following statellite tracking. People who take pictures of volcanoes professionally use drones.

None of that answers how they can consent to risk for money.  You can't just say that some people are "professional" risk takers, or that they try to minimize their risk.

Also, for what it's worth, the first photos of volcanoes did not, in fact, have to wait for the invention of drones.

Pondering

Mr. Magoo wrote:

Quote:
Those are activities done by trained professionals who have other choices and are often working freelance or are already in the war zone. Storm chasers do try to stay out of the way and they have lots of equipment and are following statellite tracking. People who take pictures of volcanoes professionally use drones.

None of that answers how they can consent to risk for money.  You can't just say that some people are "professional" risk takers, or that they try to minimize their risk.

Also, for what it's worth, the first photos of volcanoes did not, in fact, have to wait for the invention of drones.

Even without drones they would have safety straps or use other equipment. The difference is that money is not acting as a coercive force in situations in which individuals have realistic choices. Minimum wage exists because low income workers don't have realistic choices because they lack leverage. A woman picking up johns on the street is in a similar situation of vulnerability. 

Even so Scott has a point.

https://www.ctvnews.ca/canada/christopher-garnier-guilty-in-police-offic...

HALIFAX -- A jury has found Christopher Garnier guilty of punching and strangling Nova Scotia police officer Catherine Campbell, rejecting his claim that the off-duty officer died accidentally during rough sex.

The 12-member Nova Scotia Supreme Court jury delivered its verdicts Thursday after 4.5 hours of deliberations, declaring the 30-year-old Halifax man guilty of second-degree murder and interfering with a dead body.

The cases are not the same. Cindy's attacker phoned 911 when he discovered her body he didn't dismember her. The commonality is that "rough sex" is being used as a justification for "accidental" murder. 

Even if a woman has agreed to fisting or choking I think the onus should be on the individual performing the act to ensure that they are not killing their sex partner. 

I am reminded again of  Cindy being described as an indian prostitute during the trial.