Something a little different today, as anyone who has been reading for a little while would know every now and again something gets me all riled up and I put on my ranty pants and let everyone know what I’m thinking.
Today it’s time for Mr. Wolff to have his turn.
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Art of Law: Sex, Lies
and Invisible Rape
Before I begin ranting I would like to profusely thank my
wife Lila for allowing me to use her blog as a soapbox to voice my slightly
controversial and possibly unpopular opinions and would like to stress that
they do not necessarily reflect hers. Since we’ve been together I’ve felt
comfortable saying things without care for what anybody might think or whether
anybody agrees because I know that even if she thinks I’m wrong, stupid, or
immoral she is still in my corner and still loves me. It’s in that spirit that
I present to you the following:
the New Releases on iTunes today a film entitled “Your Sister’s
Sister” caught my intrigue. My curiosity lead me to peruse the plot
synopsis and shortly thereafter I was enraged.
a scene towards the end of this film where the protagonist, Jack, discovers
that a woman he had sex with earlier in the film, Hannah, had given him a
perforated condom out of a desire to have him father her child. In a moment of
hilarity he confronts her and accuses her of stealing his sperm. Except it’s
not really hilarious.
get boring for a moment. In R v Cuerrier
 2 S.C.R. 371 the Canadian Supreme Court considered whether consent to
sexual intercourse could be obtained by fraud.
case a man who was HIV positive lied to a woman about his HIV status, the woman
engaged in sexual intercourse with the man and subsequently contracted HIV. It
was accepted that if she had known of the man’s HIV status the woman would not
have consented to sexual intercourse and that the man knew that she would not
have so consented.
two physical elements which make up the offense of rape: sexual intercourse and
the absence of consent.
in Cuerrier held that consent
obtained by fraud is not valid consent. Accordingly, sexual intercourse had
occurred in the absence of consent. The offense of rape was made out. The
defendant was convicted and his conviction was upheld on appeal.
apply that to Your Sister’s Sister. Jack and Hannah had sexual intercourse.
Hannah deceived Jack by providing him with a compromised prophylactic. Jack
would not have consented to sexual intercourse if he had known there were holes
in the condom and Hannah was well aware that he would not have consented. It
follows then that the consent was obtained by fraud and therefore not valid
had sex with Jack. Jack did not consent. Hannah raped Jack.
Your Sister’s Sister deal with this case of a man being raped by a woman? It’s
worthy of an upset and irrational man and some quirky awkwardness (but not 7
years in prison) followed by promises to be there for her and help raise the
proffer this: assume Jack and Hannah are in a relationship. Jack knows Hannah
plans to leave him so he puts holes in the condom before they have sex. Hannah
falls pregnant and as a result decides to stay with Jack so they can raise the
Jack has acted despicably. He’s been controlling, manipulative and abusive
(also a rapist). Would you be concerned with the message that movie sends to
women? Or the message that it would send to men? Well here’s the message that
Your Sister’s Sister does send: it’s okay for a woman to rape a man and expect
him to be there and care for the resulting child.
were the other way around there would be a three day long campaign with
pictures of people holding signs with clever slogans written on them posting
them to various Facebook pages but because it’s a woman raping a man it’s
“superbly acted, satisfying and engaging” as opposed to
“despicable, immoral and disheartening”.
plenty of acclaimed films that feature the rape of women. Leaving Las Vegas
springs to mind. But those films acknowledge what it is, rape. They don’t
expect the women to raise a child with their rapists and treat it like just a
mistake. Those rapists are villains. Hannah isn’t a villain and that’s the
insidious misandry behind Your Sister’s Sister.
acknowledge that Cuerrier might not
be considered binding in some Australian jurisdictions or other jurisdictions
outside Canada. Hannah is still likely to be guilty of rape in Western
Australia by virtue of s319(2)(a) of the Criminal Code; in Tasmania by virtue
of s2A(f) of the Criminal Code and in the ACT by virtue of s67(1)(g) in the Crimes Act (1900). In other
jurisdictions such as South Australia she could at the very least be convicted
of an indecent assault.