Tuesday, November 9, 2010

Choke Unconscious and Rape, That's OK! Advanced Consent Defense (?) Canada

The Canadian Supremes heard an argument over the Court of Appeals decision that a rape defendant can argue that he had "advanced consent" from his victim.  This is the Vacouver Sun account:

"The Supreme Court of Canada was warned Monday against creating a new legal doctrine of 'advance' consent to sex, with several lawyers arguing it would turn back the clock decades to the days of spousal immunity and before the creation of 'no means no' laws that eradicated implied consent as a defence in sexual-assault cases.

The court reserved judgment after hearing almost three hours of arguments on whether on Ottawa woman was legally able to give permission for anal sex before being voluntarily choked unconscious by her partner of eight years.

Several judges questioned where one would draw the line if the court interfered with personal autonomy in the bedroom by imposing criminal sanctions on sexual behaviour if one partner was incapacitated. Would it outlaw, for example, one spouse kissing his or her sleeping partner?  'Do we just trust that the law won't be applied in a ridiculous way?' asked Justice Louise Charron, whose sentiment was echoed by at least two of her colleagues.

The Ontario Crown brought the appeal to the Supreme Court after the province's appeal court ruled earlier this year that a man, identified only as J.A., was not committing sexual assault when he and his on-again off-again partner, K.D., engaged in 'erotic asphyxiation' one night in May 2007. He was convicted at trial of sodomizing with a dildo her against her will, with her hands bound in cables, after she blacked out.  K.D. took her complaint to Ottawa police two months after the alleged assault, after a dispute with her partner over custody of the couple's toddler. She told police in a videotaped statement she never agreed in advance to anal sex, although she backtracked during trial and said they had discussed the idea in the past, long before the night in question.

James Martin, a lawyer for the Attorney General of Canada, accused the Supreme Court of being 'over focused' on the prospect of making it a crime to kiss a sleeping partner.  The real problem, he said, is that permitting advance consent to sex could have dangerous implications for anyone who is incapacitated in any way. What about women who supposedly give permission before passing out drunk? he asked.

'They are totally subjected to the will of the person they are in the company of when they are unconscious,' Martin said.

The court should avoid regressing 30 years to the years of being able to secure spousal immunity against sex assault by arguing 'she's my wife and she consented before,' said Susan Chapman, lawyer for the Womens Legal Education and Action Fund.  'This is a thinly disguised attempt to resurrect spousal immunity and I respectfully request you not to buy into it,' she said.  Several judges appeared nervous at the prospect of validating prior consent, on grounds that unconscious people cannot make decisions on whether they want the sex to continue.

'It seems to me when you've got a situation of unconsciousness, they've waived their right to consent,' said Justice Marshall Rothstein.  The case reaches the Supreme Court almost 12 years after it ruled that there is no such thing as implied consent, upholding Parliament's 1992 changes to the Criminal Code that confirmed "no means no" and put the onus on the initiator of sex to reasonably secure consent.

In written legal arguments, J.A.'s lawyer, Howard Krongold, invoked the words of former prime minister Pierre Trudeau, who in 1968 famously declared that 'there's no place for the state in the bedrooms of the nation . . . what is done in private between adults doesn't concern the Criminal Code.'

J.A.'s conviction was overturned last March when the majority on the Ontario Court of Appeal ruled that K.D. had given her consent by virtue of agreeing to be choked and 'to hold otherwise would be to deprive individuals of their personal autonomy by limiting their ability to make choices about who can touch their body and in what circumstances.'"
While you might reasonably argue that there are problems with the conviction of this defendant in this case, the idea that someone "consents" to being sexually assaulted while unconscious is bizarre at best.  The positive of this argument tortures logic and plain English beyond all meaning. 

As a former attorney representing rape and incest victims, I'd find it nearly inconceivable that "voluntary" consent was given by any woman in this sort of relationship.  But I guess that's my problem.  In this country, at least, a person can not consent to assault, battery, or homicide


  1. You can't consent to assault in Canada either. THe problem that the court is getting at is that kissing someone is considered sexual assault, so, if someone is asleep and you kiss them, then that would be assault.

    However, that seems like a red herring. Honestly, this is a huge issue and I'm following it with interest. I was sexually assaulted by my partner multiple times during our marriage. The first time, I thought he just couldn't have understood that I was not into anal sex while asleep (or awake, mind you). I freaked out at him and was traumatized, but I thought it just had to be a misunderstanding. But it kept happening. And it wasn't the only abuse in the marriage.

    The research on abusive relationships shows that this sort of abuse/assault is common. If Canada repeals the conviction for this man, then we're going to go way back in time, in terms of women's rights. Not that this only happens to women, of course.

  2. "The idea that someone consents to being sexually assaulted while asleep is bizarre at best".

    This is strangled logic.

    One cannot consent to be sexual assaulted, by definition. The absence of consent is an essential element, making it a sexual assault in the first place.

    Whether or not there is a affirmative communication of consent is a question of fact to be determined in each case.

    The activity included within the scope of that consent is also a question of fact. Thus, if there is reason to believe that scope of consent is exceeded, then the other person has a case for sexual assault.

    But that's not what this case was about. (The Court of Appeal unanimously found that the complainant gave consent to be touched while unconscious.)

    This case was about the state making decisions about what forms of sexual activity are appropriate, and what forms are not appropriate. It is a policy question about the role of the state in the bedrooms of freely consenting adults.

    Yes, it may be risky for a person to consent be touched while unconscious--because who knows what will happen once your asleep? But people take that risk all of the time (e.g. the innocent morning kiss, surgery, etc.).

    Who ever said that competent adults cannot consent to undertake risky activities?

    It seems to me that this debate has been highly distorted, and advance consent it has been incorrectly framed as detrimental to females, when I believe it does the opposite. It puts all of us under the patronizing and infantilizing microscope of the state:

    If you're nosy neighbour, peeping Tom, catches you kissing your partner before she wakes up, you may have to prepare to defend your sex life in court.


  3. "As a former attorney representing rape and incest victims, I'd find it nearly inconceivable that "voluntary" consent was given by any woman in this sort of relationship."

    Well... you do have sort of a skewed viewpoint, which is perfectly understandable. You've spent your time helping victims, and hearing about all of the worst things that people do to each other. The people you've met have had negative experiences that they didn't choose to have.

    Had you spent your life as a burlesque performer, for example, or a relationship counselor, you might have met different people with more positive experiences, who care about each other and practice their kinks responsibly.

    "a person can not consent to assault"

    No, but a person can consent to role-playing a simulated assault. I do it all the time :D