Some background on consent videos
This trial centres on the issue of consent, as the Crown’s opening statements stressed.
Earlier today, the jury saw a video of the complainant, known as E.M. under a publication ban, asking if she’s “OK with all this stuff,” and her responding, “Yeah, I’m OK.”
In the second video, at 4:26 a.m., E.M., wearing no clothing, is shown holding a towel in front of her chest.
She says, “It was all consensual. Are you recording me? K, good,” E.M. says. “You are so paranoid. Holy. I enjoyed it. It was fine. I’m so sober — that’s why I can’t do this right now.”
I spoke to Kaitlynn Mendes, who’s not involved with this trial, about consent videos. She’s a sociology professor and holds the Canada Research Chair in Inequality and Equity at Western University in London. She’s also an expert in technology-facilitated sexual violence.
Mendes says consent videos aren’t new — they’re meant to pre-empt accusations that a sexual encounter was not consensual.
She says they became a “thing” during the #MeToo movement, which gained international prominence in 2017, focused on addressing sexual harassment and abuse, particularly in the workplace.
Mendes says there’s controversy over consent videos because “consent is something that can only really happen in the moment … consent has to be ongoing. It’s something that can be withdrawn at any point.”
So, for example, if someone has consented to having sex with one person and a second person enters the room or they want to change acts, the participants need to get consent, in the moment, for everything happening, adds Mendes.
“That’s really the only case in which these videos I think could really stand up,” she says, acknowledging the act of recording a video in that moment is also complicated.
Mendes hasn’t seen the consent videos in the world junior hockey case, but has some questions about the context in which they were recorded, including: Who was in the room? Was there coercion or threats? Was the complainant sober and able to consent?
“We don’t know whether it was like, ‘Hey, you need to record this video before you’re allowed to leave.’ Are there other people standing around intimidating you? … Do they feel as though they’re being coerced into saying that, yes, this was consensual?”
