Sexual assault, along with the obscenity and criminal indecency provisions of the Criminal Code, is part of a family of offences directed at wrongful sexual objectification. Insofar as those offences all target pernicious forms of objectification, the ways in which each has been interpreted can reveal important things about the others. With that in mind, it is striking that the Supreme Court’s decisions in Butler and Labaye proceed on the basis that both section 163 and the offence of criminal indecency require proof that the conduct in question causes social harm. By emphasizing harm, the Court obscured the message that certain kinds of objectification are per se wrongful, whether or not we can point to any tangible harm. Perhaps more importantly, Butler and Labaye fail to provide the sort of sophisticated analysis of what makes conduct problematically objectifying in the first place. Even if these shortcomings produce no discernible effect on the way that courts decide particular cases before the m, it undermines the educative function of the criminal law. This is especially problematic in the context of sexual assault, where the law must not only reflect social values, but take a leadership role in transforming the m.
"What Butler Did."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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