R. v. J.A., 2011 SCC 28 deals with consent in sexual assault in curious circumstances. The specific issue seemed to be related to whether there can be consent to sexual activity while someone is unconscious -- and if so how, if at all, is that consent limited. This issue raised larger important questions of how consent is determined and what limits are put thereon.
The Court concludes:
[66] The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. 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.
12 comments:
So how could the guy know this? The man acted in good faith, had the consent of the woman to perform the acts, and is now convicted of sexual assault because she changed her mind afterward. How is this a fair or reasonable result under the law? This is a new interpretation that basically convicts this guy retroactively.
No, it's not a new interpretation. It's a fairly standard interpretation. And that's the problem, it's an antiquated view of sexuality.
Well, if it's not a new interpretation why did the Supreme Court take the case? Obviously someone who is unconscious can't consent to sex, the difference here is she DID consent to both the sex AND the loss of consciousness.
Anon is right -- doesn't break new ground.
So you embrace your sleeping partner that's a sexual assault? DUMB DUMB DUMB!!!
Embrace, no. Fondle, it would appear so. Dumb, definitely!
Once in a while, though it is rare, the Supreme Court shows itself to be completely out of touch with reality. This is one of those cases.
Am I reading this right? If one partner says "While unconscious, you may do X to me" and the other partner does precisely that and nothing more or less, it's sexual assault anyway?
Is this really not breaking new ground?
Obviously there's precendent establishing that one cannot consent if there, for instance, passed out drunk. It wouldn't surprise me if there was also precedent establishing that prior plans to have sex, say that same evening, do not constitute consent once one partner has passed out.
But is there really precedent establishing that if someone consents explicitly to sex while unconcious--say one partner consenting to the other initiating sex while the first is asleep--that this does not actually constitute consent as that consent must on going throughout sexual activity?
"they're", not there
Anon at 3:08;
If you are going to nitpick grammar you should use periods to end sentences and capital letters to start them.
I encourage people to read the original Ontario decision, the Court of Appeals and then the Supreme Court decision. From what I have read, the woman only ever discussed the possibility of anal sex and never consented to it. She consented to being choked and knew passing out was a possibility, but she had not, per se, consented to being choked to black out on purpose. Her partner didn't check to see if she was okay and did things she didn't consent to when she was asleep.
But, beyond that, the Supreme Court clarified that, if someone is asleep or unconscious, they can't consent anyway and thus consent ends at that point. In this case, the husband did things that the woman had not consented to either!
Many people - here and elsewhere - seem to have pointed out the woman said nothing for 2 months. If you read more, you will see the husband had 23 criminal convinctions, including 3 for domestic violence, 2 of those with her. On the night she called the police, I think I read he had come after her with a wine bottle and kicked in the door. So, yeah, when you call the police about that and they grill you about other stuff, you might then disclose. And then the police can go ahead and press charges even if you don't want them to.
Plus dissociation is really common after sexual assault. The woman may not have even been able to carry the thought in her mind at all times. Partner rape and betrayal traumas can be especially confusing. And it's also very common for women to be uncertain when a rape does not fit our "rape scripts". You see, our scripts tell us that rapes sound/look a certain way. They're carried out by strangers in a dark alley.
My ex raped and sexually assaulted me many times. I kept dissociating and not believing it. It was such a trauma and betrayal that I couldn't believe it was true. I split off things in my mind. It was only the very last time that I was somehow able to believe it, perhaps because I had enough support elsewhere or because my income was higher. I'm not sure. I'm not a stupid person. But I was traumatized and the information split into different "channels".
People point out that this woman only called police when they were separating. Well, perhaps up till that point, she was hopeful that she was wrong, that they could reconcile, that she could get over it. It doesn't make what he did less wrong because there's a custody dispute. He was also coming after her with a wine bottle.
My ex raped me in my sleep many times. Even all these years later, I still have a hard time believing it. That's why you don't see this stuff go to court very often. That and I need the child support for my kids and, more importantly, jail time would separate my kids from a dad who has never raised a hand to them. It's not worth the trauma to my kids to put their dad in jail.
Whatever the facts of the case are, the ruling essentially means that no "sexual" activity can occur when one partner is asleep. But what's the dividing line? Kissing? Spooning? Hugging, hand on breast?
I know I've done all those while my wife was asleep. So have every other couple in Canada. My wife has woken me up with oral sex a few times. She's now a criminal.
Post a Comment