Ahh, a small break in the studies allows me to do some sweet sweet blogging.
The Canadian Supreme Court as just managed to find its ass with, get this, not just one, but BOTH of it hands. The wisdom and judicial prudence has been flowing as of late, but let us scry into the dense legal jargon and decipher this weighty codex:
“A woman cannot give advance consent to sexual activity while unconscious, the Supreme Court of Canada ruled Friday.”
How they get the creamy filling into the chocolate bars is next on this braintrust’s todo list. One problem at a time though…
“If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent,” the ruling said.
The definition of consent is an ongoing state of mind where individuals can ask their partner to stop, McLachlin wrote.
“Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code,” she wrote.
Why we need such clarity is because in 2007 a couple engaged in mutual erotic asphyxiation and of course, the dude while his partner was out did stuff to her that was above and beyond the terms of their agreement. Okay, that was speculation on my part, this is what the article says:
“The case goes back to a particular episode in 2007 when the woman, who cannot be named because of a publication ban, complained to police about what her partner did to her after she passed out. At trial, the man was found guilty of sexual assault but his conviction was overturned on appeal.”
Ah, says the rights crowd, she had it coming then as she had already agreed to take part in sexual activity. Yes, she did to the initial act, but she did not give consent for x, y, and z that came after when she was unconscious and correctly this dudes appeal was overturn and he went to prison.
“The Ottawa man served 18 months in jail after his conviction in 2008 on the sexual assault charge.”
And justly so, because there was a point, before committing x,y,z on her body, he had the choice. There was a threshold, a line of ambivalence that needed to be consciously crossed before he continued with the sexual assault and he did so. Consent is everything in an intimate relationship, especially one that pushes boundaries with racy sexual activities, and the dude in question made a conscious decision to go beyond the reasonable expectations of their relationship.
Three Justices dissented from this ruling –
“In the dissenting opinion written by Justice Morris Fish, the judges said Friday’s ruling would deprive women “of their freedom to engage by choice in sexual adventures that involve no proven harm to them or to others.”
They also expressed concern about the criminalization of normal sexual relations between spouses.
“The approach advocated by the Chief Justice would also result in the criminalization of a broad range of conduct that Parliament cannot have intended to capture in its definition of the offense of sexual assault. Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately.”
I’m guessing that the x,y,z that our friendly dude perpetrated against our victim was a little more that caressing or kissing. The dissent relies on a less than reasonable interpretation of the law.
“Elizabeth Sheehy, a lawyer for the Women’s Legal Education and Action Fund, which intervened in this case, dismissed the dissenting opinion. She called the majority ruling a major victory for women.
“The most important message that the court is communicating is that unconscious women are not sexually available,” she said.”
Hurrah for that.
bleatmop
Mystro
Dead Wild Roses 
5 comments
May 28, 2011 at 1:55 pm
RayK
This decision is understandable on certain level, but it is hugely problematic.
In the case in question one partner gave consent to be choked–and consented to sexual activity while being choked–with the understanding that they may briefly lose conciousness during this activity. The partner who was choked lost conciousness for less than three minutes. After regaining conciousness the couple went on to continue having sex with the consent of both partners.
The one complicating factor in this story is that the partner who was charged engaged in anal penetration (with a sex toy) during the three minutes when the other partner was unconcious. This activity stopped within 10 seconds of the other partner regaining conciousness and asking that it stop (they then went on to have consentual vagina sex).
The partner who was charged testified that they had engaged in this type of anal sex on previous occaisions (when lose of conciousness was not an issue); the other partner gave conflicting testimony is this regard. This appears to be the only fact that’s indispute in this case.
Here’s the twist: the Supreme Court ruled that even if they had engaged in this particular act before, or even if the partner who lost conciousness had consented in advance to exactly the sexual acts the other partner performed, that the partner performing those acts would still be guilt of sexual assault.
The court ruled that consent must be on going at all times during sexual activity and so it is IMPOSSIBLE for someone to give their consent in advance to sexual acts that will occur when they are unconcious–even if it IS NOT a case of consenting to X only to be subjected to X, Y and Z.
Under this decision, every person who initiates sexual activity while their partner is asleep by–for example–fondling or oral sex is guilty of sexual assault even if their partner gives consent before they fall asleep and gives consent for sex to continue once they wake up.
I don’t know how many people engage in this sort of thing, but my guess would a whole lot more than those who consentually choke their partners to
the point of passing out.
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May 28, 2011 at 6:06 pm
Bleatmop
A good ruling imo. It takes consent back into the realm of yes means yes. Not silence means yes, not passed out means yes, but only yes means yes. The lower courts ruling was hugely problematic because it opened the floodgates for putting consent back into only no means no and everything else means yes.
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May 28, 2011 at 7:32 pm
RayK
“The lower courts ruling was hugely problematic because it opened the floodgates for putting consent back into only no means no and everything else means yes.”
That’s simply not true. The lower courts’ rulling in no way changed the precedents establishing the need for affirmative consent. It didn’t affect the case of someone passed out from drugs or alcohol one iota.
This ruling, on the other hand, takes away the right of men and women to say “yes”–to explicitly consent in advance to sexual activity that will occur when they’re unconcious.
One can agree or disagree with that ruling, but that is what it is.
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May 29, 2011 at 7:55 am
The Arbourist
Under this decision, every person who initiates sexual activity while their partner is asleep by–for example–fondling or oral sex is guilty of sexual assault even if their partner gives consent before they fall asleep and gives consent for sex to continue once they wake up.
At first blush, I would agree this seems unreasonable. However while in a relationship one of the goals of during sexual activity is mutual pleasure. When one party is unconscious the pleasure only exists for the conscious party, which goes against the idea of being together and sharing an experience with your partner. Doing things to people when they cannot say “no” is wrong. I think the CSC decision clearly delineates the idea that consent is a key aspect of any relationship and protects the bodily autonomy of both partners.
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May 29, 2011 at 4:21 pm
RayK
“while in a relationship one of the goals of during sexual activity is mutual pleasure. When one party is unconscious the pleasure only exists for the conscious party, which goes against the idea of being together and sharing an experience with your partner.”
What business does anyone outside a relationship have determining how two willing partners can engage sexually with each other? You seem to have a very fixed, narrow view of what sexuality “should” be. That’s fine, but some peoples’ opinions about it should not have to be imposed on everyone else.
“Doing things to people when they cannot say ‘no’ is wrong.”
Doctors perform surgery on people who are unable to say ‘no’ after surgery begins on an everyday basis. Again, this is not about whether consent is necessary, but whether consent can be given in advance. Can for surgery, can’t for sex.
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