Betty Disero and Beverley Richardson, in a recent letter to the editor, profess support for the principle that “No Means No” and “Yes Means Yes”. However, after paying lip service to this admirably clear rule, they reveal that what they actually support is the position that “Yes means No”.
Adopting a line of argument which is rapidly gaining popularity among those who wish to use society’s desire to prevent assault as a cover for legislating their own brand of morality, Disero and Richardson claim that “Yes” means “No” if one or both of the parties are “under the influence of alcohol”. According to this point of view, drinking and sex should be equated with drinking and driving, and the law should view both with equal severity.
Those who equate these situations betray their incomprehension of what the issue of consent is all about. No one, whatever their state of sobriety, wishes to hit by a car, whether it is driven by a drunk driver or by a sober one. People who drive when intoxicated inflict a considerable risk of such collisions on others, and that is why we as a society refuse to allow people to drive after they have been drinking. The question of consent never arises, because being run into by a drunkdriver is never a consensual act.
However, people in varying stages of sobriety do willingly engage in sex. Individuals who are too intoxicated to drive safely are still quite capable of desiring sex, of consenting to sex, and of participating in sexual activity. It may offend the sensibilities of the new puritans, but some people actually find that they desire and enjoy sex more when they have been drinking or taking certain drugs. This should not be a matter for the law.
It should also not be the business of the law to legislate a paternalistic double standard by holding that a woman is no longer capable of distinguishing between "Yes" and "No" if she has been drinking, while a man remains capable of telling the difference when he has been drinking. There may be times when there is guilt or regret afterwards about the decision to engage in sex, but if there has been no coercion, that too should not be a matter for the law. Justice Minister Campbell has therefore acted correctly in removing the “intoxication” provision from Bill C-49.
The business of the law should be to make it clear that “No” means “No” and that society will not tolerate the use of force or coercion to obtain sex. Anyone who can’t tell the difference between “Yes” and “No” is part of the problem.