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Authors

Lise Gotell

Abstract

While the struggle for affirmative consent is typically framed as a feminist law reform project, I contend that we need to understand the legal elaboration of a positive and explicit consent standard in relation to wider shifts in governance. The second section of this article explores how the legal elaboration of affirmative consent in Canadian law might be seen as a specific expression of neoliberal governmentality, forging new normative sexual subjects who interact within a transactional sexual economy. In section three, I demonstrate how discourses of responsibilization and risk management inform recent Canadian sexual assault decisions, constituting the ideal victim as the rape-preventing subject who exercises appropriate caution (yet fails) and the normative masculine sexual subject as he who avoids the risk of criminalization through securing consent. Just as new consent norms prescribe privileged sexual subjectivities and new conceptions of good/credible victims, so too do they produce new mechanisms for discrediting claims of sexual assault. In the final section of this article, I interrogate the reconstruction of the good victim/bad complainant dichotomy in Canadian judicial discourses...By considering three illustrative cases in some depth, I demonstrate how such “risky women” appear to surrender their status as legal subjects capable of having their refusals recognized in law. Under the shadow of affirmative consent, standards of good victimhood are currently being revised.

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