Consent Ends When Person is Asleep or Unconscious Canada SC Court Rules

sabrina 1

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Mon Jun-06-11 03:16 AM
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Consent Ends When Person is Asleep or Unconscious Canada SC Court Rules

Edited on Mon Jun-06-11 03:29 AM by sabrina 1

The ruling has sparked some controversy with some people believing it 'infantalizes' women, while others argue that it will help to prevent sexual assault.

Supreme Court of Canada: Consent Ends When Person Falls Asleep or Unconscious

In a 6-3 decision, the Supreme Court of Canada has ruled that having sex with someone who is unconscious or asleep is a sexual assault, even if the person gave consent prior to passing out. On the surface, this seems logical enough, but it stems from a complicated case that has people divided on the appropriateness and consequences of this decision:

One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long‑term partner K.D. and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for "less than three minutes." She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before.

The Supreme Court decision further explains that when K.D. regained consciousness, her hands were tied behind her back, and J.A. was performing certain unagreed-upon sexual acts on her, which he stopped when she regained conciousness. The two then continued with consensual sexual activities and, when they were finished, J.A. cut K.D.'s hands loose.

K.D. filed a complaint with police, which eventually led to J.A. being found guilty of sexual assault. That verdict was later overturned by the Ontario Court of Appeal prior to being reversed by the Supreme Court of Canada last week.

Those in favor of the decision, such as Elizabeth Sheehy, a lawyer for the Women's Legal Education and Action Fund, believe it is a victory for women. "The most important message that the court is communicating is that unconcious women are not sexually available."

Those against the decision, one of whom is Justice Morris Fish, believe it "would deprive women of their freedom to engage by choice in sexual adventures that involve no proven harm to them or to others".

Others who oppose it fear that the ruling could criminalize something as simple as a husband giving his wife a kiss on the cheek while she is sleeping.

Columnist Rosie DiManno from The Star eg, vehemently opposes the ruling:

Warning: This article is fairly sexually explicit. Not sure if DU rules require a warning for sexually explicit material, but just in case:

DiManno: Supreme Court�s consent ruling infantilizes women

Yes means no, by the Supreme Court�s reckoning, even when the complainant has said yes-no-yes and admitted under oath that the charge was provoked � two months after the incident �by a custody dispute between the couple.

......

A perfectly contradictory statement � the law excels at them � yet a concept that makes sense in circumstances pondered by the Supreme Court before: A woman�s right to withdraw consent at any time during a sexual act and the legal presumption that no consent can be given when an individual is unaware � asleep, blotto or unconscious.

......

But those circumstances were not quite applicable in these circumstances, as the Ontario Court of Appeal found when those tall foreheads reversed the conviction last year.

Indeed, the convoluted details were so specific to this couple�s relationship that there appears no good rationale for investing it with Supremo consequence for all when appeal was sought by the Crown and the Women�s Legal Education and Action Fund (LEAF), an intervenor in the case.

I don't think I like it either ....