In this case, “sex” means “sexual intercourse,” the term used in the Criminal Code when defining what the code used to call rape, and “intercourse” means mutual or reciprocal participation. The victim of a sexual assault is not participating but rather is being subjected to an infliction, though the infliction is still of a sexual nature.
It does seem to me, however, that some who have protested Snelgrove’s acquittal might just possibly be confusing the administration of justice with the healing of feelings, as when there were loud protests later on against another judge’s saying, when he acquitted an accused, that “A drunk can consent.” Someone whose drinking has led to consenting only once to something to which one would not have consented when sober is not necessarily “a drunk,” as people ordinarily say that phrase, and it ought not to have been implied that she was.
However, it is not the purpose of a criminal trial where sexual assault is alleged to confirm the complainant in her personal conviction that she must never be made to feel like a drunk. Rather, it is the purpose of a criminal court to make, or decline to make, a finding regarding the accused which the court is morally certain the evidence of any honest, independent witness would fully have supported, if such a witness had been present at the occasion with which the court is concerned.
In any case, the mending of reputations or of feelings damaged by rumour is properly in the realm of libel law. But even there a court must deal chiefly — in regard to both evidence and punishment — with facts of which the understanding can, by means of the senses, affirm the factuality. Punishment should be a material condition of detriment which would be evident to observers not privy to the internal mental processes of the one on whom it is inflicted; the primary purpose of criminal justice is to redress against the unjust the injustice they have done, by giving rise in them to a displeasure suited to their deed, which is what doing wrong ought always to evoke. (It is true that anyone who injures another “only” in her own sensitivity ought similarly to feel what he had inflicted, but that is an area in which mere regulation by the state cannot ordinarily function well.) If this also vindicates a woman’s claim that she had not done wrong but was wronged, that is a side-effect of which decent men will approve.
As to lack of consent while drunk, if this were to mean not only that drunkenness rendered someone unconscious but even that consent affected by impaired judgment as a result of imbibing alcohol at all must be legally invalid, as is the consent of a minor, then the equal administration of laws regarding all citizens would require, logically, that the courts let those impaired drivers off whose decision to drive while impaired had been similarly affected by their own drinking.
In a similar vein, I’m inclined to think that if the courts are to regard drug addicts as some sort of special cases, then there ought to be a law binding on all citizens which punishes fairly severely any experimenting with drugs which is sufficient to result in addiction. Citizens somehow must, to some extent, be held responsible for themselves.
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