No consent in unconscious sex case: Supreme Court
No consent in unconscious sex case: Supreme Court - Canada - CBC News
A woman cannot give advance consent to sexual activity while unconscious, the Supreme Court of Canada ruled Friday.
The decision restores the conviction of an Ottawa man who regularly practised consensual erotic asphyxiation with his longtime girlfriend.
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.
On Friday, in a 6-3 decision, the country's top court restored the conviction. Writing for the majority, Chief Justice Beverley McLachlin said consent ends once someone is unconscious or asleep.
"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.
Concerned about freedom of choice
Three Supreme Court judges disagreed. 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."
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.
The Ottawa man served 18 months in jail after his conviction in 2008 on the sexual assault charge.
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Well everybody can now say goodbye to waking up to your partner stimulating you, or kissing you, or touching you in a sexual manner before you wake up or are waking up, even if it's meant in a good way or out of pure love for one another..... because all of that can be directly related to sexual assault now..... be that man or woman doing it.
Because sometime down the road when you get in a fight or argument over something, either of you (it sounds mostly the woman) can bring that up and use it against you.
The thing that bothers me the most about this case is that it sounds to me that they did this multiple times in the past and she never had an issue with it until now.
If you agree to become unconscious prior to a sexual act because it's your thing, you just gave consent for it happening. You accepted what was about to happen and you agreed to it. Now that no longer applies. If you said you no longer wanted to do it before it happened, then yes, that'd be sexual assault if it proceeded.
It's certainly not my "thing" but I know it's many other people's "thing"
To put it simply, this ruling just made this sexual act illegal and put it in the same category as bestiality, incest and sex with minors...... an act done between two adults who generally consented with one another to do it.
That's the bottom line and in my opinion, they went over the line in regards to meddling in what we do or don't to in our own bedrooms with our own partners, regardless if they originally consented or not.
Not a good day for justice if you ask me.
And what does this say about consenting with your dentist or doctor to put you under for an operation? How do you know what they're doing while you're unconscious?
She and her partner did this many times in the past, and what's not noted in this report is that she didn't file this complaint until a few months after the incident when their relationship was going in the crapper and her partner was seeking custody of their child..... then suddenly this was no longer ok and suddenly this time it was wrong.
And the report seems to keep making the impression that this is a great step forward for women, with little mention to men.
Believe it or not, but men face sexual assault too..... and in gay male relationships, these things happen as well.... but this all seems to be geared in favor towards women.
Yet this ruling took that choice from women and now the act itself is flat-out illegal.
