Protecting the Dignity and Autonomy of Women: Rethinking the Place of Constructive Consent in the Tort of Sexual Battery

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 author posits the recognition of a separate tort of sexual battery with specific criteria that prioritize the protection of women's rights. [Descriptors: Violence Against Women, Canada]