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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.