Notes on Consent and Wife/Partner Rape in Ontario (Lazar, CJWL/RFD)
Introduction
This note summarizes Ruthy Lazar’s study on how the legal construct of consent shapes the prosecution and defense of wife/partner rape in Ontario, Canada, following the abolition of the marital rape exemption in 1983. The article argues that despite legal reforms, social and cultural beliefs about sexuality, marriage, and rape myths continue to influence how cases are constructed and litigated. The dominant theme emerging from interviews with Crown attorneys and defense counsel is the role of consent in intimate relationships, and the difficulties in recognizing non-consent given the private nature of marriage and the association of consent with love, intimacy, and personal language. Lazar’s work is positioned as the first empirical Canadian study on wife/partner rape that triangulates case-law with the lived practices and beliefs of criminal lawyers. The research aims to look “behind the scenes” of wife rape trials to understand how key actors analyze, conceptualize, and direct the process, and how gendered assumptions shape outcomes for survivors of sexual violence within marriage or intimate relationships.
Context of the Study and Legal Background
In 1983, Canada abolished the “marital rape exemption,” which had granted legal and social immunity to husbands who raped their wives. The abolition followed a history in which marriage framed a wife’s consent as irrevocable, rendering sexual violence within marriage as noncriminal in many contexts. The abolition occurred in the broader Bill C-127 reforms and was echoing feminist legal and academic work that linked conjugal acts to historically sexist beliefs about women’s sexuality. The legislative change aimed to focus on the violent, coercive nature of rape and to place sexual violence against women at the center of public debate. The article situates these reforms within ongoing debates about whether consent within marriage can be ongoing or must be treated as a single, fixed event.
The change is linked to the idea that “implied consent” within marriage had rooted rape myths that treated wives as property and consent as irrevocable upon marriage. The historical model drew on notions of conjugal ownership and the idea that women’s consent could be presumed given the marital bond. The abolition was part of a broader movement challenging these assumptions and redefining sexual offences to emphasize women’s autonomy.
The author connects legal changes to broader social and cultural beliefs about sexuality and to the ongoing tension between law’s formal recognition of wife rape as a crime and social attitudes that minimize its severity.
Key Legal Concepts and Definitions
Consent in Canadian law is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. Situations that vitiate consent are enumerated in the Criminal Code. The statutory framework is central to debates about how consent is understood in intimate relationships.
The Criminal Code provisions central to the discussion include:
s. 273.1(1): the core definition of consent in sexual offences.
s. 273.1(2): factors where the complainant’s agreement is deemed incapable of constituting consent.
s. 273.2: the defence of mistaken belief in consent (honest belief in consent, reasonable steps to ascertain consent, and related limitations).
s. 276(1), 276(2), 276(3): rules governing the admissibility of sexual history evidence; section 276 limits such evidence to protect complainants from character evidence, with specific admissibility conditions.
In 1999, the Supreme Court of Canada’s decision in R. v. Ewanchuk (affirmative consent standard) established that consent requires an explicit, affirmative agreement, shaping mens rea for sexual assault as including knowledge that the complainant was not saying yes, not merely that she was not saying no. This shifted the framework for evaluating consent, especially in situations of potential mistaken belief.
The article also references R. v. Seaboyer (1991), which discusses the relevance and limits of sexual history evidence in sexual assault trials, highlighting the tension between legal rules and social myths about consent.
The historical framework of marriage and consent is traced back to the idea of implied continuous consent within marriage, drawing on the long-standing concept that within conjugal relations, consent was perceived as ongoing and inherently connected to love and marital dynamics.
Research Methodology
Lazar conducted qualitative research to access the “legal world” of wife/partner rape, focusing on perceptions, attitudes, and practices of lawyers rather than solely on conviction rates or sentencing outcomes.
The study involved thirty-two interviews with Ontario Crown attorneys and defence counsel who had litigated wife/partner rape cases (1983–2006). A broader set of 40 cases from Ontario (1983–2006) formed the basis for participant selection.
The sampling aimed for balance: fifteen defence counsel and seventeen Crown attorneys; nineteen male and thirteen female; with representation from several Ontario cities. The interviews used a semi-structured format with open-ended questions to elicit nuanced views while ensuring coverage of central legal concepts.
The data were coded and analyzed to identify themes, focusing on consent and its articulation in trials, as well as the role of sexual history, language of relationships, and the distinction between “unwanted sex” and rape. The methodology drew on grounded theory principles (e.g., coding themes and developing categories) to understand how cases are constructed in practice.
Lazar recognizes limitations in relying on case-law alone to gauge the lived reality of wife rape; she aims to connect practice with legal doctrine and social myths.
The Six-Part Structure and Scope of the Article
The article is organized into six parts:
1) Introduction and the historical/legal context; 2) Background and terminology, historic treatment of marriage and wife rape, and consent in Canadian law; 3) Methodology and sample; 4) Analysis of interview results focusing on themes such as sexual history, mistaken belief in consent, language of relationships, the contractions around classifying events as rape, and the issue of presumed consent; 5) Conclusion with reflections on feminist struggles and future questions, and 6) Appendix listing cases.
Major Themes from the Interview Findings
Consent as a Dominant Theme
A central finding is that consent plays a leading role in how lawyers construct wife/partner rape cases. Interview narratives reveal difficulties in recognizing and enforcing the concept of “non-consent” within the context of marriage. Consent is often entangled with love, intimacy, sexual history, and private language between couples.
Although legislation foregrounds explicit consent (per the Ewanchuk standard), practitioners tend to presume consent within intimate relationships, shaping trial strategies and evidentiary decisions.
Sexual History as a Key But Contested Factor
Sexual history evidence (past sexual activity between the complainant and the accused) is widely considered by defence lawyers to be relevant for understanding consent. The defense often appeals to “context,” “human nature,” and “common sense” to argue that ongoing intimate patterns show consent, even if the current episode suggests otherwise.
Section 276 of the Criminal Code restricts the admission of such evidence, but many defence lawyers see prior sex as a valid context for evaluating consent, especially in long-term relationships. Crown prosecutors, while acknowledging the statutory limits, express ambivalence, noting that prior sexual conduct is sometimes seen as relevant to consent by juries and judges, particularly in domestic settings.
The interviews reveal a tension: defence lawyers emphasize patterns and long-term relational context to justify consent; Crown prosecutors strive to limit persistent myths about women’s sexuality and to adhere to the statutory constraints, yet admit that patterns can be invoked in practice to explain consent.
The analysis highlights two “magic words” used by defence lawyers to justify sexual history evidence: context and common sense. Defence counsel argued that consent in intimate relationships is shaped by the couple’s unique patterns, language, and dynamics, so past sexual behavior helps interpret current conduct. Crown prosecutors insist on applying the law strictly to avoid perpetuating myths that women consent due to marriage or familiarity, while acknowledging the challenge of disentangling consent from intimate practice.
The Language of Relationships and Secret Codes
Interviews repeatedly reference a set of terms such as codes, signals, communication, and a private “language” used by couples. This “language of relationships” is seen as shaping how consent is perceived and evaluated in court.
Defence lawyers argue that intimate couples develop a private language and nonverbal cues that are difficult to translate into legal proof. The belief is that the jury or judge will rely on personal, familiar cues rather than the formal legal standard of consent.
This language contributes to the perception that some cases involve miscommunication rather than clear non-consent, leading to a tendency to classify such cases as “unwanted sex” or “bad sex” rather than rape.
The result is a problematic dichotomy: rape within intimate relationships becomes conflated with ordinary sexual activity, minimizing the severity of coercion or violence when present and reducing the perceived criminality of the act.
Unwanted Sex, “Headache Situations,” and the Rape–Sex Continuum
A recurring topic is the debate over when sex constitutes rape versus unwanted sex, especially in the absence of overt physical violence. The “headache situation” metaphor appears as a way to discuss situations where a spouse acquiesces to sex out of routine or relationship dynamics, rather than explicit consent.
Several prosecutors and defence lawyers describe scenarios where a woman may say no in the moment but where long-standing patterns or nonverbal cues imply ongoing consent. The interviewees note the challenge of distinguishing non-consent in long-term marriages, where sex is seen as part of the marriage bargain.
This continuum creates a difficulty in applying the criminal law in a way that protects women while respecting privacy and the complexities of intimate relationships.
Presumed Consent in Intimate Relationships
A striking theme is the notion that consent is presumed in long-term or married relationships, even if explicit withdrawal of consent occurs. Defense counselors and some prosecutors describe how ongoing intimate behavior can be read as implying consent on a current occasion, despite formal legal requirements for consent on each occasion.
Defence lawyers argue that there is often an unspoken, continuing consent in a long-term relationship, made evident by prior sex and ongoing intimacy. They contend that it can be legally rational to assume consent unless there is a clear withdrawal. Some prosecutors acknowledge this tendency among juries and judges but insist that the law requires a rigorous, evidence-based approach to consent.
The tension reveals a gap between the letter of the law (affirmative consent under Ewanchuk) and the lived practice of lawyers who operate within intimate contexts and rely on common sense, relationship dynamics, and prior patterns to interpret consent.
The Distinction Between “Real” Rape and Unwanted Sex
Many interviewees distinguish between “violent wife rape” (which includes coercion or physical assault) and cases of non-violent, intimate sex considered to be “unwanted” or “misinterpreted.” The former is easier to prosecute; the latter invokes normative assumptions about marriage and sexuality, making it harder to label as rape.
The narrative often shifts from the broader issue of rape to a discussion of intimate relationships, love, and personal dynamics, which can obscure the criminal nature of coercive acts.
The effect is a misalignment between legal definitions and social perceptions, contributing to uneven enforcement and outcomes in wife/partner rape prosecutions.
The Private/Public Dichotomy and the Role of Privacy
The private sphere of marriage is portrayed as a barrier to state intervention in family life, reinforcing the idea that the home is a private domain where the state should not intrude. This historical dichotomy complicates adjudication in wife rape cases, as privacy norms can privilege a partner’s internal experiences and private communications over legal standards of consent.
Profound philosophical and political questions arise: Should the private sphere be subject to state intervention when intimate violence or coercion occurs? How should law handle the tension between intimate autonomy and the protection of vulnerable individuals within marriage?
The Construct of Marriage and Its Legal Implications
The article traces marriage as historically tied to property rights and male ownership, with conjugal relations defined as private. Marriage was seen as a unit where the husband had access to the wife’s sexuality as a property right, reinforcing the idea that consent within marriage could be presumed or irrevocable.
The “separate spheres” ideology reinforced the private/public dichotomy, keeping intimate life out of public law discourse and allowing male-dominated legal and social norms to shape the understanding of wife rape.
The traditional definition of rape (unlawful carnal knowledge of a woman not his wife, by force and against her will) evolved under the influence of rape myths and gendered assumptions about sexuality, marital status, and the private nature of conjugal relations.
The history of consent within marriage has been profoundly influenced by legal and philosophical arguments about whether marital acts require ongoing explicit consent or whether consent, once given in marriage, is ongoing and irrevocable.
The Legal Response to Consent: Historical and Contemporary Perspectives
The Canadian legal framework has shifted toward recognizing consent as a positive, affirmative act, particularly after Ewanchuk, which set an affirmative consent standard (yes means yes). This move represents a shift away from implicit trust in spousal consent toward explicit verification of consent.
Despite these reforms, Lazar’s interviews reveal that legal actors still operate with residual beliefs about ongoing consent within marriage. These beliefs shape how they interpret evidence, how they argue about sexual history, and how they frame the issue of consent in trials.
The author argues that there remains a gap between the explicit reforms to the law and the lived reality of how cases are prosecuted, indicating that reforms to law may have limited impact if social myths and private norms remain unchallenged.
Analysis of the Defence of Mistaken Belief in Consent
The defence of mistaken belief in consent is a central tool used to argue that, despite a complainant’s explicit statements, the accused believed in consent based on prior sexual patterns and the intimate history of the relationship.
The defence often relies on prior sexual patterns to establish a reasonable, honest mistaken belief that consent existed on the occasion in question. The defence argues that long-standing patterns, non-verbal communication, and the couple’s private language create a reasonable basis for belief that consent existed.
Defence lawyers emphasize that in domestic relationships, patterns of behavior, foreplay, and non-verbal cues can support a mistaken belief in consent, particularly when there is no explicit “no” or when the relationship has a long history of mutual sexual activity.
Crown prosecutors generally oppose broad use of sexual history to justify mistaken belief, but many acknowledge that, in practice, defence arguments rely on patterns and private cues to establish consent-like interpretations. Some prosecutors accept that evidence of prior sexual conduct could be relevant if admitted under s. 276 and if it supports the mistaken belief defence without reinforcing rape myths.
The interview data show a nuanced position: while the law (s. 276) restricts sexual history evidence, defence strategies often seek to introduce patterns and “the language of relationships” to demonstrate the accused’s mistaken belief in consent.
The Defence and Crown Perspectives on Sexual History and the “Patterns” Approach
Defence lawyers frequently articulate the idea that sexual history provides a context in which consent can be interpreted. They discuss “patterns” of sexual activity, specific acts, or role-play that may indicate continued consent, even if the current act was contested.
Crown prosecutors acknowledge the potential relevance of sexual history in proving mistaken belief in consent but emphasize the need to avoid stereotypes and rape myths. They argue for a disciplined application of s. 276 to minimize prejudicial or irrelevant evidence, especially in domestic cases.
The interviews reveal that both sides may rely on the notion of “patterns” and “unique sexual practices” to frame consent in intimate relationships. However, “patterns” can become a slippery slope, as they risk reproducing entrenched myths about women’s sexuality and the inevitability of consent in long-term relationships.
The notion of “common sense,” “logic,” and “experience” often underpins the admissibility and interpretation of sexual history, raising concerns about gendered biases and the differential application of relevance standards in intimate versus non-intimate cases.
The Language of Intimate Relationships and the “Communication Gap”
The interviews emphasize that consent is mediated by a private language of intimacy, signals, and nonverbal cues, complicating the court’s task of adjudicating coercion. Lawyers argue that this language is often opaque to judges and juries who are not part of the couple’s private world.
The “communication gap” refers to miscommunication or misinterpretation of intimate signals, which is used to justify mistaken belief in consent or to downplay non-consent. Defence lawyers describe decoding subtle signals as part of the challenge in long-term relationships; prosecutors emphasize the need to separate legitimate evidence of consent from private codes and myths.
The private nature of intimate relationships is seen as a barrier to prosecuting rape within marriage, since it is difficult to demonstrate coercion or lack of consent when couples rely on private normative practices and nonverbal cues.
The Reality of “Unwanted Sex” versus Rape in Intimate Relationships
Several prosecutors and defence counsel discuss the notion that in marriages, sexual activity can be framed as “unwanted” but not necessarily as rape. The concept of “headache” or “unwanted sex” is used to describe situations that fall short of violent rape but still involve coercion or pressure.
The interviews indicate a tendency to recast marital rape as a form of unwanted or problematic sex rather than as a criminal act of rape. This reframing is tied to social norms about marriage, love, and sexual entitlement within long-term relationships.
Prosecutors and defence lawyers note that juries and judges often empathize with married men or identify with the couple’s life experiences, making it harder to convict when sexual activity is framed as a private matter rather than a crime.
The Impact of Privacy, Gendered Norms, and the Private Sphere
The private sphere of the home is historically treated as beyond the reach of the state; this framing has reinforced the myth that sex within marriage is private and unregulated by public law. Lazar argues that even with statutory reforms, the law’s operation remains embedded in social norms that normalize certain patterns of marital sexuality and minimize the seriousness of coercion in intimate relationships.
The interviews demonstrate that gendered power dynamics persist within the legal imagination, where men and women are positioned in ways that can reproduce patriarchal understandings of consent, sexuality, and marriage.
Ethical, Philosophical, and Practical Implications
The persistence of “continuous consent” logic in some professional circles raises concerns about women’s autonomy and agency within marriage. Treating prior consent as evidence that consent exists in the current act undermines women’s capacity to withdraw consent on any given occasion.
The reliance on private language and nonverbal signals risks normalizing coercive behavior and classifying rape as “unwanted sex” or miscommunication, which challenges the criminal law’s aim to protect sexual autonomy.
The research calls for continued feminist engagement with the law, to ensure that explicit consent remains central to accountability, and to contest social myths that still influence judicial interpretations.
The study suggests that reforming law alone may not be sufficient; broader changes in social attitudes, education, and cultural norms are needed to align practice with the formal protections offered by the Criminal Code.
Connections to Foundational Principles and Real-World Relevance
The article engages with foundational feminist legal theory, including MacKinnon’s critique of how law constructs gendered knowledge and power, and O’Donovan’s critique of private spheres and state intervention in intimate life. It also engages with Smart’s insistence on re-centering women’s experiences within law, challenging the male-centered construction of legal knowledge.
In real-world terms, the findings highlight how defense strategies that lean on private sexual histories and intimate cueing can influence trial outcomes, shaping the lived experience of survivors and the effectiveness of the criminal justice response to domestic sexual violence.
The work situates Canada’s Ewanchuk decision within a broader conversation about affirmative consent and the need to translate legal standards into the realities of intimate relationships without reproducing gendered stereotypes.
Implications for Policy and Future Research
The study suggests that legislative reforms may have limited impact unless accompanied by broader cultural and institutional changes that address rape myths, gendered expectations, and the private/public divide in sexual violence.
Future research could examine how juries respond to consent narratives in wife rape trials and whether jury composition, gender, or attitudes influence verdicts in ways that reflect broader social biases.
Policy implications might include explicitly addressing the interpretation of sexual history evidence in intimate-partner cases, ensuring robust guidelines that protect complainants while allowing relevant evidence when warranted by the facts.
Conclusions
Lazar concludes that while Canadian law has made meaningful strides in recognizing women’s sexual autonomy and prohibiting marital immunity for rape, key actors in the Ontario criminal justice system continue to drag interpretive frames from historical beliefs about marriage, love, and sexual consent. The “uniqueness of sex” within intimate relationships and the complexity of consent persist as central challenges to fully realizing the reforms of 1983 and Ewanchuk.
The gap between the letter of the law and courtroom practice highlights the need for ongoing feminist critique and institutional reform to ensure that consent is understood and enforced in a way that truly protects married women and intimate partners from sexual violence.
Appendix 1: List of Cases (Representative Examples)
R. v. Noel, [1989] O.J. No. 518 (Ont. Dist. Ct.)
R. v. B.W., [1992] O.J. No. 4011 (Ont. Ct. J. (Gen. Div.))
R. v. A.E.S., [1992] O.J. No. 1697 (Ont. Ct. J. (Gen. Div.))
R. v. N.B., [1992] O.J. No. 1801 (Ont. Ct. J. (Gen. Div.))
R. v. C.M.T., [1993] O.J. No. 1938 (Ont. Ct. J. (Gen. Div.))
R. v. M.N., [1993] O.J. No. 3077 (Ont. Ct. J (Gen. Div.))
R. v. M.C., [1994] O.J. No. 4029 (Ont. Ct. J. (Gen. Div.))
R. v. C.A.S., [1994] O.J. No. 2387 (Ont. Ct. J. (Prov. Div.))
R. v. A.R., [1996] O.J. No. 367 (Ont. Ct. J. (Gen. Div.))
R. v. T.S., [1996] O.J. No. 3761 (Ont. Ct. J. (Prov. Div.))
R. v. R.W.H., [1996] O.J. No. 4692 (Ont. Ct. J. (Gen. Div.))
R. v. L.B., [2005] O.J. No. 1798 (Ont. Ct. J.)
R. v. D.T., [1997] O.J. No. 688 (Ont. Ct. J. (Gen. Div.))
R. v. W.R., [1998] O.J. No. 6483 (Ont. Ct. J. (Prov. Div.))
R. v. C.W.R., [1999] O.J. No. 1583 (Ont. Ct. J. (Gen. Div.))
R. v. D.S.F., [1997] O.J. No. 5628 (Ont. Ct. J. (Gen. Div.))
R. v. M.J.B., [1999] O.J. No. 2235 (Ont. Sup. Ct.)
R. v. Q.M.J., [2003] O.J. No. 6012 (Ont. Ct. J.)
…(Appendix 1 lists 30+ cases cited in the study)