Sexual Assault in Spousal Relationships, 'Continuous Consent', and the Law, Honest but Mistaken Judicial Beliefs
Bibliographic record
Abstract
Of those incidents of sexual assault that do get processed criminally, the spousal cases appear to provide jurists with the greatest degree of difficulty. This paper reviews some of the recent case law to illustrate the kinds of conceptual difficulties and legally flawed analyses which some judges are undertaking in relation to sexual assaults perpetrated in the context of intimate relationships. In these judgments, a number of specific themes are salient, including the mistaken judicial belief that the relational context is critical to assessing whether a sexual assault actually happened, or, put differently, the assumption that the relational context is critical to assessing whether what happened constituted a sexual assault. More specifically, these mistaken judicial beliefs are tied to the traditional assumption, only relatively recently repudiated legally with the 1983 amendments to the definition of sexual assault in the Criminal Code, that marriage confers upon men presumed rights of sexual access to their wives. Some judges appear to be using this assumption as part of the framework for analyzing a criminal sexual assault charge. Tied to this faulty reliance on traditional assumptions, is the apparent mistaken belief evident in the judgments analyzed in this paper, that the legal test for consent differs in an ongoing and “viable” intimate (spousal) relationship, from the legal test applied in other contexts. Furthermore, the case law examined in this paper shows that in too many cases there is a judicial failure to acknowledge, let alone correctly apply, the reasonable steps provision of the “honest but mistaken belief in consent” defence. In fact, this provision is glossed over in some of the judgments, as if it simply does not exist in the Criminal Code. Finally, past sexual history seems to figure more prominently and slip in automatically in spousal sexual assault cases, insofar as some judges automatically read in the existence of an ongoing interpersonal relationship as creating a presumption of continuous consent.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.028 | 0.087 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.008 | 0.069 |
| Scholarly communication | 0.011 | 0.009 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.010 | 0.012 |
| Insufficient payload (model declined to judge) | 0.001 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".