Adjin-Tettey, Elizabeth

This article seeks to show that the defence of constructive consent in sexual abuse cases as articulated by the Supreme Court of Canada increases the difficulty for victims to procure a civil remedy. The author argues that constructive consent undermines the autonomy and dignity of women by allowing for the objective determination of consent by a third party in cases of sexual assault; "only voluntary and affirmative consent should be accepted as a valid defence to claims of sexual wrongdoing".

The article focuses on the international legal definition of a well-founded fear of persecution. The article surveys the interpretation of this element of the refugee definition within domestic courts, particularly those in Canada. The author argues that the traditional objective test often fails to incorporate the nature of a well-founded fear for women refugee claimants who have been victims of a sexual assault. The second part of the article focuses on the means for establishing and assessing the appropriate threshold of a well-founded fear.

Although women immigrants are not the specific focus of this article, this case comment demonstrates women's interaction with the immigration determination system in Canada. The Baker case considers the request for humanitarian and compassionate consideration by a woman who entered Canada illegally and worked as a live-in domestic. The focus in this article is on the specific considerations of the best interest of the children of Baker, with a discussion of the incorporation of considerations of Canada's international legal obligations.