SCC Decision on Consent

[captain morgan]

There's an acronym in BDSM, SSC. It stands for safe, sane, consensual.

There are safe words, so that at any given moment, a person can withdraw consent. Anyone that participates as an ethical member of said community, knows, that as soon as someone passes out, you stop.

They can no longer use a safe word, or maintain consent.

The SCC didn't just pull this out of their collective asses.

Understand that I am not condemning the activity. I am questioning the premise that consenting to participate an activity that runs a high risk of losing consciousness can be retracted after the fact when that risk has been realized.

The safe words you outlined require a conscious state of mind to employ the mechanism. If the participants are aware of the consciousness risk in advance, the knowledgeable consent (and trust) must be in place to begin with.

 

[CDNBear]

Understand that I am not condemning the activity. I am questioning the premise that consenting to participate an activity that runs a high risk of losing consciousness can be retracted after the fact when that risk has been realized.

The safe words you outlined require a conscious state of mind to employ the mechanism. If the participants are aware of the consciousness risk in advance, the knowledgeable consent (and trust) must be in place to begin with.

And like I've already stated, there are aspects of law, that you can not consent to.

You can not consent to an indictable offence.

It doesn't matter that she said "Sure, choke me out and tear my ass out." She can not consent to that. She can say the words, but in a court of law, they have no weight, at all, full stop.

I can cuff SCB to a St. Andrew's cross, and line up a dozen people to take a swing at her ass with a flogger. If a cop looks through the window. We're going to jail.

Now, the Crown may prefer to remove the charges, because there will be no chance of conviction. 1, SCB won't testify before a court, and 2, a spouse can not be compelled to do so.

 

[captain morgan]

And like I've already stated, there are aspects of law, that you can not consent to.

You can not consent to an indictable offence.

Agreed... So, at this point, we have to determine which groups were 'breaking the law' to begin with... In the event that the 'victim' is complicit in an illegal activity to begin with, there is no force of law. That said, can an argument be made that the woman that filed the complaint was complicit in an illegal activity to begin with?

 

[CDNBear]

Agreed... So, at this point, we have to determine which groups were 'breaking the law' to begin with... In the event that the 'victim' is complicit in an illegal activity to begin with, there is no force of law. That said, can an argument be made that the woman that filed the complaint was complicit in an illegal activity to begin with?

No, because in the yes of the law, she would be the victim.

 

[captain morgan]

I guess that we'll have to agree to disagree on that one.

I see her role as parallel to you and I doing a drug deal wherein the drugs are received but never paid for... We had a 'contract' (albeit verbal), but their is no recourse in the law as the entire activity is illegal to begin with.

 

[Tonington]

It's fair to suggest that if the SCOC requires ongoing (conscious) consent before and during the activity; other activities mentioned in this thread (ie surgery) can be equally as applicable.

The Supreme Court ruled on a very specific question, and it was in relation to consent and sexual assault.

That doesn't mean that this ruling can be applied to areas of law which the court did not consider, or address. Medical treatment and consent has been ruled on by the courts, and there are requirements in place.

It would be entirely unreasonable to expect that patients must be continually able to remove consent...that would shut down most life saving surgeries. There is a good reason why the jurisprudence in Canada regarding consent is far different for medical treatment than it is for sexual assault. The two are wholly different spheres of human interaction. Hence, different laws to cover different activities.

 

[CDNBear]

I guess that we'll have to agree to disagree on that one.

We don't actually disagree. The law is open to interpretation here. I don't necessarily agree with that.

I see her role as parallel to you and I doing a drug deal wherein the drugs are received but never paid for... We had a 'contract' (albeit verbal), but their is no recourse in the law as the entire activity is illegal to begin with.

Agreed. But the section involving sexual contact, has a definition of consent. Being unconscious, removes the ability to continue being consensual.

My opinion, is irrelevant.

 

[captain morgan]

No doubt... All either of us can do is speculate on the logic that generated this ruling... And of course, we can piss and moan because it's the easy thing to do.

 

[CDNBear]

No doubt... All either of us can do is speculate on the logic that generated this ruling... And of course, we can piss and moan because it's the easy thing to do.

I'm not necessarily speculating. The definition of consent under the criminal code, allowed for no other decision. There's no speculation there.

The legislature now needs to redraft that section of the criminal code, so as to remove the ability of this ruling being used to go after ex husbands for playing stink finger with the wife, while she was asleep, 20 years ago.

 

[captain morgan]

That doesn't mean that this ruling can be applied to areas of law which the court did not consider, or address. Medical treatment and consent has been ruled on by the courts, and there are requirements in place.

All it will take is an interested party to take a case to the SCOC to be reviewed (assuming the lower courts don't adjudicate in an earlier manner). The 'activity' can change, but the base premise (ie conscious consent) argument can be applied.

It would be entirely unreasonable to expect that patients must be continually able to remove consent...that would shut down most life saving surgeries. There is a good reason why the jurisprudence in Canada regarding consent is far different for medical treatment than it is for sexual assault. The two are wholly different spheres of human interaction. Hence, different laws to cover different activities.

In effect, the SCOC has opened the door wide open to new/alternate interpretations of consent at this point. It no longer matters what the activity is as the SCOC has ruled on one of the most fundamental components that is common to a variety of activities.

Pandora's Box

I'm not necessarily speculating. The definition of consent under the criminal code, allowed for no other decision. There's no speculation there.

Mind you, the SCOC decision was not unanimous (I believe).

The legislature now needs to redraft that section of the criminal code, so as to remove the ability of this ruling being used to go after ex husbands for playing stink finger with the wife, while she was asleep, 20 years ago.

Yikes! Do Dutch Ovens count as assault too?

 

[CDNBear]

Mind you, the SCOC decision was not unanimous (I believe).

True, three dissented, because of what I mentioned in my last post.

Yikes! Do Dutch Ovens count as assault too?

I've been assaulted for doing just that, lol.

 

[captain morgan]

I've been assaulted for doing just that, lol.

And they say that it's a victimless crime.

 

[PoliticalNick]

I'm not necessarily speculating. The definition of consent under the criminal code, allowed for no other decision. There's no speculation there.

The legislature now needs to redraft that section of the criminal code, so as to remove the ability of this ruling being used to go after ex husbands for playing stink finger with the wife, while she was asleep, 20 years ago.

I would say that's not quite right. What the SCC said was any 'prior' consent stopped when she lost consciousness. The definition of 'incapable of giving consent' before this ruling was interpreted by state of mind mental capacity and they have taken the definition and extended it. Before this 'prior' consent was acceptable. She was quite capable of giving consent beforehand and she did. In fact she apparently gave prior consent on multiple occasions before and didn't raise any charges.

What do you have to say about why she was not charged with perjury and filing a false complaint given her admission that she did in fact tell him he could have anal sex with her while unconscious and her admission that she only brought the complaint as revenge for a threat over child custody?

 

[CDNBear]

I would say that's not quite right.

What's not right?

The definition of 'incapable of giving consent' before this ruling was interpreted by state of mind mental capacity and they have taken the definition and extended it.

No they didn't.

What do you have to say about why she was not charged with perjury and filing a false complaint given her admission that she did in fact tell him he could have anal sex with her while unconscious and her admission that she only brought the complaint as revenge for a threat over child custody?

Nothing, it's irrelevant to the SCC ruling, which was founded in legislation and law, via the CCoC.

 

[PoliticalNick]

What's not right?

The definition says nothing about when that consent may be given. The SCC has attached an interpretation that informed, prior consent does not meet the standard of being capable consent.

I do believe that can now be attached to any situation surrounding prior consent as it is a precedent. We all know SCC rulings get expanded into other areas of law than the narrow scope they are originally made.

Nothing, it's irrelevant to the SCC ruling, which was founded in legislation and law, via the CCoC.

I wasn't asking in the context of the ruling. I was asking in the context that she openly admitted to the court she had lied to the police and the court about material facts of the complaint and admitted it was brought forward at a much later date for reasons other than she believed she was assaulted.

 

[CDNBear]

The definition says nothing about when that consent may be given. The SCC has attached an interpretation that informed, prior consent does not meet the standard of being capable consent.

Because that's how it's defined in the CCoC. They didn't make new law here.

I do believe that can now be attached to any situation surrounding prior consent as it is a precedent.

You believe wrong, as has been amply shown several times now.

We all know SCC rulings get expanded into other areas of law than the narrow scope they are originally made.

Only if warranted and acceptable by law. Unless you live in a fairy tale world where you believe all manner of nutter conspiracies involving the law.

I wasn't asking in the context of the ruling. I was asking in the context that she openly admitted to the court she had lied to the police and the court about material facts of the complaint and admitted it was brought forward at a much later date for reasons other than she believed she was assaulted.

Still irrelevant under the law, you can not consent to being assaulted.

What part of that are you having difficulty understanding?

Did you call your local Law Enforcement detachment like I suggested? They'll clear up any confusion you have with being able to consent to being assaulted.

 

[Tonington]

All it will take is an interested party to take a case to the SCOC to be reviewed (assuming the lower courts don't adjudicate in an earlier manner). The 'activity' can change, but the base premise (ie conscious consent) argument can be applied.

The Supreme Court already has dealt with consent as it applies to medical treatments/surgeries/therapies. On multiple occasions.

Conscious consent applies in this case, because that is what the criminal code prescribes with respect to sexual assault.

Conscious consent in that regard does not apply to the medical field. There is no such law in the Health Act, or any other related provincial law that requires the patient to be conscious at all times for consent to be in place.

 

[Kreskin]

The issue appears to be continuous consent. If your wife says you'll have sex later that doesn't mean her pre-consent overrides her right to stop consenting. You can't say, "well sorry honey, you already said...".

 

[captain morgan]

The Supreme Court already has dealt with consent as it applies to medical treatments/surgeries/therapies. On multiple occasions.

Conscious consent applies in this case, because that is what the criminal code prescribes with respect to sexual assault.

Conscious consent in that regard does not apply to the medical field. There is no such law in the Health Act, or any other related provincial law that requires the patient to be conscious at all times for consent to be in place.

The SCOC has, or is running the risk, of reopening the debate on the issue of medical treatments/surgeries/therapies by virtue of the uniqueness of this particular case.

 

[Kreskin]

The SCOC has, or is running the risk, of reopening the debate on the issue of medical treatments/surgeries/therapies by virtue of the uniqueness of this particular case.

The comparison is apples and oranges. Surgery requires sedation in order to receive a physical and sometimes lifesaving benefit. Aside from procreation the reason for sex is enjoyment. you can't enjoy something you're not aware of.

It's a bit like contract law. An agreement requires legal consideration (both parties benefit). Surgery is dual benefit. One sided sexual gratification is not.