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Sex and the Supremes: Towards a Legal Theory of Sexuality

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dc.contributor.author Craig, Elaine
dc.date.accessioned 2010-08-17T18:08:43Z
dc.date.available 2010-08-17T18:08:43Z
dc.date.issued 2010-08-17
dc.identifier.uri http://hdl.handle.net/10222/12997
dc.description.abstract This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian rights, the occurrence of sexual harassment, or the sexual abuse of children. However, there is an exception to this trend. The exception relates to the Court’s conceptual approach towards sexual violence against adults. The research revealed, likely as a result of feminist activism both in the legislative and judicial arenas, that there has been a shift in the way that the Court understands sexuality in the context of sexual violence. It is a shift away from understanding it as pre-social and naturally occurring towards understanding it as a product of society, as a function of social context. This change in the Court’s conceptual approach towards sexual violence has engendered a shift in the law’s moral focus as well – a shift away from a moral focus on specific sexual acts and sexual propriety and towards a moral focus on sexual actors and sexual integrity. The thesis weaves together the analytical observations about the jurisprudence just described with a theoretical argument that is both grounded in the case law and which draws upon a number of different theorists. The argument developed suggests that the Court, regardless of the legal issue involved, ought to conceptualize sexuality as socially constructed/ contextually contingent, that it ought to orient itself towards protecting sexual integrity, and that it ought to understand this sexual integrity as a common interest. en_US
dc.language.iso en en_US
dc.subject "law and sexuality", "sexual assault", "similar fact evidence", "sexual minority rights", "sexual expression", labaye, "queer theory", "post-modern feminism", pornography, "sex work", "legal theory", prostitution en_US
dc.title Sex and the Supremes: Towards a Legal Theory of Sexuality en_US
dc.date.defence 2010-03-26
dc.contributor.department Faculty of Law en_US
dc.contributor.degree Doctor in the Science of Law en_US
dc.contributor.external-examiner Rebecca Johnson en_US
dc.contributor.graduate-coordinator Aldo Chircop en_US
dc.contributor.thesis-reader Richard Devlin en_US
dc.contributor.thesis-reader Stephen Coughlan en_US
dc.contributor.thesis-supervisor Ronalda Murphy en_US
dc.contributor.ethics-approval Not Applicable en_US
dc.contributor.manuscripts Not Applicable en_US
dc.contributor.copyright-release Yes en_US

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