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Explicit consent

Pierre Trudeau famously said “there’s no place for the state in the bedrooms of the nation.”

Avalon MP Scott Andrews speaks with reporters at a Vale nickel processing facility in Long Harbour.

If he knew the state of some of our national bedrooms today, he’d be rolling over in his grave.

The case of two MPs kicked out of the Liberal caucus for what Liberal Leader Justin Trudeau described as “serious personal misconduct” gets stranger by the day.

This week, details emerged about what happened to elicit the dismissal of Massimo Pacetti and Scott Andrews. One of two female MPs divulged her story about an encounter with Pacetti to The Huffington Post, while The Canadian Press has relied on third-party sources to describe a separate incident involving Andrews and the other MP.

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The two accusers remain anonymous, no formal investigation has taken place, and none of the allegations have been proven in a court of law.

Andrews is alleged to have followed a female MP home after the two were drinking wine with Pacetti. He then reportedly pushed his way into her home and pinned her against the wall, groping her. She told him to go home, and he left. It’s alleged Andrews repeatedly harassed her verbally after the incident.

The Pacetti case may have raised a few more eyebrows.

His accuser says the two had sex after he invited her to his hotel room — and that she furnished the condom — but she says she did not “explicitly consent” to it.

That may sound odd to those brought up on the concept that “no means no,” but the Canadian Criminal Code does not actually recognize the concept of implicit consent. In other words, just because a person is not saying “no” doesn’t mean she (or he) is consenting by default.

In some cases, a finding of sexual assault is clear despite the absence of protest. That includes cases involving force, fraud or an imbalance of power.

But since a famous Supreme Court of Canada appeal in 1999, the foundation of explicit consent has been more solidly entrenched in law.

In R. vs. Ewanchuck, the Supreme Court overturned the acquittal of a man who had sex with a 17-year-old girl in his trailer. She repeatedly spurned preliminary advances, but then finally submitted to him. The lower courts ruled that the teen had given implied consent.

Here’s how the top court objected to that judgment:

“The question of implied consent should not have arisen.  The trial judge’s conclusion that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said ‘no’ on three occasions and was afraid. This error does not derive from the findings of fact but from mythical assumptions. It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.”

In fact, the code states that consent, or lack thereof, must be expressed by “words or conduct.” That doesn’t require a signed waiver. But it does mean common sense should prevail, no matter how spontaneous the moment may seem.

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