"No consent in unconscious sex case: Supreme Court"

[Holly Taylor]

http://www.cbc.ca/news/canada/story/2011/05/27/pol-scoc-sex-consent.html

The Supreme Court says an unconscious woman can't give consent to sex. In a split 6-3 decision, the court restored the sexual assault conviction of a man who penetrated his female partner in the anus with a dildo in 2007.

The man was originally convicted of sexual assault but that was overturned by the Ontario Court of Appeal. The woman testified at trial that she consented to being choked unconscious and that she understood she might lose consciousness.

Chief Justice Beverley McLachlin, writing for the majority, said a person must be conscious during sexual activity to give consent.

Justice Morris Fish, writing for the dissenters, said that the woman consented to the sexual activity leading up to her unconsciousness and the unconsciousness itself.

The case, brought to the top court last year, centred on whether someone can give advance consent to sexual activity that takes place while unconscious.

The case reached the top court after Ontario’s appeal court acquitted a man, known as J.A., who had earlier been convicted of sexual assault against his partner, K.D. The couple practised kinky sex and engaged in erotic asphyxiation. The man would choke his partner until she fell unconscious and then have sex with her. In the instance that caused the complainant to go to the police, the woman accused the man of sexually assaulting her with a dildo in her posterior while she was passed out.

She told police she did not consent to that activity but later during the trial, she admitted she had consented to the activity and complained to police more than a month after the incident because of an argument she had with the man. The trial judge still ruled that the complainant could not legally consent in advance to sexual activity while unconscious and the man was convicted.

The Ontario Court of Appeal then overturned the conviction. The majority of judges concluded that there was no basis for the lower court judge to find that a person cannot legally consent in advance to sexual activity expected to occur while that person is unconscious. One judge gave a dissenting opinion.

I found this article very interesting. While "no means no", there are times (like this) when consent can be somewhat unclear. In fact, it almost sounds like this couple was playing with the idea of consent itself, like when couples engage in rape fantasy play.

I have to say that this example just reinforces my belief that communication beforehand is the best way to go. Outlining what acts can be done and what acts can't might have eliminated some of the issues here.

 

[papillion]

You're so right Holly, communication before hand is paramount
The thing I'd like to know about this case is why she told police she did not give consent for this activity, and later admitted under trial she had given consent- I believe they call that a lie, and she didn't lay charges until 4 weeks after the fact, after they'd gotten into an argument! ??

 

[treveller]

Interesting arguments if you apply them to consent for surgery while under general anestetic. Once unconscious the patient consent becomes invalid. There must be a way to reconsile the different standards, sexual activity vs surgery, but I can't imagine how.

 

[oh3421]

What if she sleeps in DURING sex?

Can the man still pull out at least? What an interesting legal conundrum

 

[FunSugarDaddy]

While I think it's problematic on a number of fronts, I believe similar to domestic violence cases, once the information is provided it's actually the Crown who lays the charges so as to prevent the charges from being dropped due to intimidation or other types of coercion.

The one scenario I have trouble understanding is when two people are drunk and engage in sex. My understanding is that the woman, if drunk, can't give consent. But if you follow that through logically how could the drunk accussed, have the capacity to know that he's committing a crime, especially, if that the time, both are willing participants in the activity?

That effectively has the potential to make a criminal out of anyone who picks up a woman at a bar and later has consentual sex with her. Or what if you and your wife got drunk and had sex? Theoretically the husband could be charged with sexual assault.

Sounds like we're heading towards making your sexual partner sign a contract before having sex. I say this tongue in cheek, but man. . . It's a crazy world we live in. The case seems a little flimsy that the girl later changed her accusation during the trial. It's pretty cold to convict a guy when the accusation changes mid trial. Especially since she came forward after a fight. That almost sounds like blackmail to me.

 

[treveller]

Alin, looking at your 02:26 post above, we seem to have different understandings of the Supreme Court decision. I understood the woman had consented to being rendered unconscious and had also consented the guy enjoying himself however he liked. The court said the consent became invalid when she became unconscious. If this is right then it would be the same as surgery.

Your description, "When a person consents to sex, has sex, then passes out - they haven't consented to waking up while a person is having sex with them." doesn't seem to apply.

The woman testified at trial that she consented to being choked unconscious and that she understood she might lose consciousness...
The case, brought to the top court last year, centred on whether someone can give advance consent to sexual activity that takes place while unconscious...
she admitted she had consented to the activity...
The trial judge still ruled that the complainant could not legally consent in advance to sexual activity while unconscious and the man was convicted.

 

[Tugela]

From the Supreme Court's written decision (emphasis is mine):

The argument that advance consent equals actual consent because the complainant cannot change her mind after being rendered unconscious runs contrary to this Court’s conclusion in R. v. Ewanchuk that the only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring. When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.

So, in other words, if you hug your spouse intimately while the two of you are sleeping together in bed, you have just committed sexual assault?

 

[Tugela]

This case removes rape as a bargaining chip in Domestic and Family Law. Because that is really why KD laid the charge in the first place. She was using the threat of a rape charge to gain a position she couldn't gain through negotiation or application of the Family Support Act. By refusing to vacate the rape charge and by taking the case all the way to the Supreme Court of Canada, Family Law lawyers have had a tool removed by the Crown Prosecutor.

I seriously doubt that was their motivation.

It will also not stop the use of strategic rape allegations, because the circumstances are pretty much allways such that the only evidence is the allegation itself, and if the person (once they have achieved their strategic goal) zips it, any case would be dead in the water since there would be no evidence. And as long as they don't get stupid and confess to making it up, there is little downside for them doing that. Even if they do get caught out in a lie, chances are they wont be charged with anything and if they are, the consequences would be minor. Nothing like the consequences the accused would face if convicted, or the shroud of guilt they would be forced to wear if the accuser shuts up and lets the case slide. The simple act of accusation when it comes to sexual crimes is enough to establish guilt in most peoples minds, so it would continue to be used as a weapon when relationships go sour. There is so much upside and so little downside for the accuser.

 

[Tugela]

Yes, if it is unwanted.

That point is covered in the dissent opinion written by Fish. However, as the majority opinion written by McLaughlin points out, law is for the benefit of the majority and the clear intent of Parliament was to remove as many "implied prior consent" loopholes as possible with C46. Since C46 has now been tested, it's the law.

So, when a couple gets divorced, a wife can say that she woke up with hubbys arm across her breasts, and therefore he is guilty of sexual assault. Him being asleep himself at the time would not be a defence since personal incapcitation is not accepted as a defence.

According to your logic a prosecutor would be obliged to pursue such charges and a court obliged to convict, since that is the law.

And whether or not it was wanted at the time is irrelevant since she could not consent while asleep.

 

[Tugela]

That also raises the issue of folks who are into BDSM. If one party is restrained or being "intimidated" then surely they could make a complaint on the basis that they were being coerced? If prior consent is no longer recognized by law, then consent cannot be recognized in a BDSM situation.

 

[Cock Throppled]

This is a strange decision.

it is 2 different things if it involves relative strangers or a couple in a relationship. These 2 were a long-term couple, their sex play was understood and they knew what to expect.

Obviously she never complained at the time, but when she needed a bargaining chip for a custody battle suddenly she claims to be assaulted.

What's the next ruling - a woman agrees to have sex, they have a few drinks or toke up, but she changes her mind a week later so it becomes an assault because she was not fully aware at the exact moment of penetration?

 

[uncleg]

So, I take it saying God said it was O.K. won't fly............................. ?

 

[Tugela]

Read the facts of the case, it's all there http://scc.lexum.org/en/2011/2011scc28/2011scc28.html

If that was their motivation then they are idiots because it will do nothing to address the problem. The kind of thinking you are putting forward relies on people being rational and responsible, but when those sorts of accusations are made, the people making them are anything but rational and responsible. It's all very well saying, "oh, its your fault, you shouldn't have done that, so now your ex is going to have his/her life destroyed no matter what". At the end of the day it is more important that justice and common sense prevail, not a puritanical adherence to the letter of the law.

It should be obvious to anyone with half a brain that if a couple enter into an activity fully expecting one party to pass out and that sex would happen, and when exactly that happens, that it isn't assault. The law created by parliament was intended to cover situations where one party was intoxicated or in some other way incapcitated, and then someone else came along and took advantage of the situation. Clearly consent would not have been given in that situation, but the victim would have no way to prove that. The law removed the need to prove it. However, I'm quite sure that they didnt have the situation in this case in mind when parliament passed that law. The purpose of the judge in court, especially at the appelate level, is to recognize the intentions of parliament and interpret the law accordingly. When the law is applied literally to a situation it was never intended to apply, then you have a situation where the judge is executing an injustice, which is an affront to the concept of natural law.

 

[Tugela]

The Criminal Code as amended in C 46 1997 had been intended to shield the personal information of rape victims, what it did - however - was create what Bijou has several threads on - Canada had a culture of rape from 1997 onwards. We went from being a country in which 1 in 20 people had personal experience with rape to being a country in which 1 in 5 people had personal experience with rape. In 2008 Canada was the nation that had the 6th highest incidence of rape. In 2010, we moved to being the 5th highest incidence of rape. We were only slightly behind nations where rape was being used as a weapon of war and led the other Western Nations by a very wide margin.

The incidence of rape/assault didnt change after 1997, Canada didn't become a country with a "rape culture". What happened is that it became easier to make reports, so more reports were made. Keep in mind this: usually rape/assault is motivated more as an expression of power, and the people who do this are fundamentally sociopathic. But, sociopathic behaviour is not exclusively male, females are just as susceptible. With changes in the law the social consequences of reporting are diminished, so it is reasonable to presume that the number of false accusations would also rise dramaticly, since a sociopath would have no problem using an accusation as a weapon to exert their power in much the same way that rape is used. So while on one hand we may be getting a truer representation of how many assaults do occurr, we are probably also seeing much more false accusations. Since most assaults occurr in situations where the two parties have some relationship, they are mostly he said/she said scenarios with little other evidence, and the person with the most conviction in their version of events is the one believed. Score for the sociopaths (of either gender), allthough it is easier for an accuser to pull this off than the accused. Allegations of rape are somewhat unusual because unlike other crimes, the state and (more importantly society) proceeds on the presumption of guilt rather than the presumption of innocent until proven otherwise. You just have to look at the IMF guy. The mere accusation, before any details were known at all, pretty much sealed the deal regarding his guilt in most of the media and public perception (you included, IIRC). I have no idea if he did or didn't do it, nor am I defending him, I'm just using the way his story played out initially as an example. Pretty much from the get go it was necessary for him to prove his innocence rather for the state to prove his guilt. And that is how the vast majority of accusations are handled by society, whether they have merit or not. When you talk about going from "a country in which 1 in 20 people had personal experience with rape to being a country in which 1 in 5 people had personal experience with rape" keep in mind that a good deal of that increase is not due to any change in the actual incidence of rape, but more to do with social and material benefits you could potentially gain by saying you are a victim.

I think your statement that "We were only slightly behind nations where rape was being used as a weapon of war and led the other Western Nations by a very wide margin." pretty much shows that there is an issue with how things are being done, because clearly that cannot be true.

 

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Would a contract that had been written just for that particular circumstance have been a valid defence in this case?

It seems it will be a good idea now to have a trusted and unbiased spotter (a notary public?) present at all times in all situations where any physical contact that may or may not lead to further sexual activities between people, so as to eliminate the 's/he said' scenarios; as well, if one of the participants of any sexual touching and activity were to lose consciousness at any time for any reason, the neutral spotter can step in and stop the activity. Everyone is protected, and false accusation cannot be made.

Does this also mean that more clients of SPs would become more uncomfortable giving out their personal information? Could this decision be abused by unscrupulous SPs and vice versa?

 

[sweetiepie1]

In one word, no. A contract would be prior consent, but the way consent has been defined by Parliament in this section of the criminal code, one has to be able to withdraw consent for the entire time the sex act is going on so written document or no, the moment one loses consciousness, consent disappears.

That's why its different from hugging your wife while she is sleeping. Being your wife and in your bed implies inital consent and she would wake up and tell you if it hurts or she changes her mind. If she's passed out and unlikely to wake up, then it could be assault. Re. the hospital one. That's different because you fill in the complete legal things in advance and there are checks and balances to ensure your safety. Speaking of safety, does anyone else think its wierd to allow someone to get your unconscious and have sex with you? Or to want to do that? I can see role playing something like that, but its downright dangerous to really do it and where's the fun in it?

 

[sweetiepie1]

The wording of definition in the legislation covering consent for surgery is different from wording in the definition for consent to sex in the Criminal Code. This Supreme Court decision is about how one interprets the words in the definition for consent to sex found in the Criminal code and is silent about the interpretation of the definition of consent in other pieces of legislation because the wording of those other pieces of legislation had no bearing on the case that was before them.

That makes sense.

 

[DavidMR]

The Criminal Code as amended in C 46 1997 had been intended to shield the personal information of rape victims, what it did - however - was create what Bijou has several threads on - Canada had a culture of rape from 1997 onwards. We went from being a country in which 1 in 20 people had personal experience with rape to being a country in which 1 in 5 people had personal experience with rape. In 2008 Canada was the nation that had the 6th highest incidence of rape. In 2010, we moved to being the 5th highest incidence of rape. We were only slightly behind nations where rape was being used as a weapon of war and led the other Western Nations by a very wide margin.

Alin, it's pretty clear you're very well informed on this subject. However, I really would like to know what the source is for these frequencies which I frankly state are quite unbelievable.

 

[DavidMR]

Let me just add this point, Alin. The figures in the Wiki piece for 2009 completely contradict the figures you cited earlier.

 

[Tugela]

I posted the stats here:
https://perb.cc/vbulletin/showthrea...elightenment&p=1153819&viewfull=1#post1153819


https://perb.cc/vbulletin/showthrea...elightenment&p=1153693&viewfull=1#post1153693

Actually, the US justice department did a very large multistate study on that topic in the 90s. It is referenced here, but it appears that is no longer on the DOJ site (I have read it before a few years back though, so I know it exists). Basically the short version was that allthough sex offenders have a higher probability of ending back in jail, mostly it is for other offences, not sex offences. The recidivism rate for sex offenders for new sex related crimes is about 2% per year, and about 10 times that for crimes in general. For criminals on parole for non sexual crimes, the recidivism rates involving sexual offences is about half of that for sex offenders, but is still very high for crimes in general. Half of them will be back in prison within 3 years.

It is true that most people convicted of sex offences end up back in jail, but usually it is for other crimes. However, that is also true for most criminals in general. The incidence of sex related crimes in the non-sex offenders group isnt all that different from the sex offenders group, and I think the conclusion is that violent criminals are likely to indulge in violent crime, no matter what they were originally convicted of.