Canuck court claims consciousness-less consent clearly crap.
May 27, 2011 12:44 PM   Subscribe

The Supreme Court of Canada ruled today, in a 6-3 decision, that a person cannot give advance consent to sexual activity while unconscious.

The case revolved around a couple with a known history of kinky sex play, in which the plaintiff alleged that her male partner used a sex toy on her while unconscious without consent. The details of the original complaint and defense illustrate some of the difficult questions surrounding issues of consent.

Further reading:
posted by greatgefilte (109 comments total) 15 users marked this as a favorite

 
Writing for the majority, Chief Justice Beverley McLachlin said consent ends once someone is unconscious or asleep.

Who hasn't falen asleep during sex?
posted by cjorgensen at 12:47 PM on May 27, 2011 [5 favorites]


I was so excited and then I realized I missed the "of Canada." Should have known :/
posted by MadamM at 12:48 PM on May 27, 2011 [2 favorites]


I'd like to be able to consent in advance to things that will happen to me when I'm subsequently unconscious, thank-you, or I'm going to have to undergo surgery without a general anaesthetic.

Reading the links, I think:

  • You should in principle be able to consent to things that happen after you pass out, but...
  • ...this relationship between these two people outside of this particular consensual event was abusive and violent, which has driven the legal and political response to it.

    Hard cases make bad law? Or a sound policy position that takes into account the majority of male-female relations? Too hard for me.

  • posted by alasdair at 12:56 PM on May 27, 2011 [13 favorites]



    This seems... weird. By the reasoning they used, you can't consent to surgery either, since you'll be unconsious and since "The definition of consent is an ongoing state of mind where individuals can ask" the surgeon to stop....

    Don't get me wrong, women people should be able to hold those who wrong them accountable, but I have to wonder if maybe this ruling goes a little too far.

    Maybe this only narrowly applies to sexual activity - I guess I don't know enough about the ruling.
    posted by Pogo_Fuzzybutt at 12:56 PM on May 27, 2011 [4 favorites]


    From the decision:

    She awoke to find herself on all fours, with her hands tied behind her back

    I think I understand what is meant here, but surely there must be a clearer way to state this.
    posted by ricochet biscuit at 12:56 PM on May 27, 2011 [3 favorites]


    Who hasn't falen asleep during sex?

    Joking aside, this was one of the arguments used:

    40. If consent to any form of sexual touching while unconscious is invalidated, it would
    constitute a sexual assault to rouse one’s intimate long-term partner with sexual touching,
    or even a kiss, even if the partner enthusiastically agreed to it. A person might consent to
    being awakened with fellatio, but his partner would be labelled a violent criminal sex
    offender for fulfilling his wish. A person whose partner falls asleep post-coital in a sexual
    position commits a crime since, on the Appellant’s argument, any loss of consciousness is a
    revocation of consent to be touched.
    posted by Kabanos at 12:58 PM on May 27, 2011 [1 favorite]


    Despite the fact that I've been in relationships with women who've said "wake me up with sex when you get home" (albeit usually in more graphic ways than that), I've not done it because I'm a lame lover like that and always found the idea kind of creepy. I recognize that some couples genuinely do enjoy this sort of play, but the good news is they don't have to press charges if they don't want to.

    This ruling seems to be fairly prudent, and not just because it gives me the chance to send it to my ex-girlfriends with a message that reads "See? See? I was right not to do that even when you asked."

    There's a reason I've never won any "lover of the year" awards. Or even "lover of the day."
    posted by Joey Michaels at 1:01 PM on May 27, 2011 [3 favorites]


    There goes Asleep Style.
    posted by theodolite at 1:03 PM on May 27, 2011 [1 favorite]


    I don't think the comparison with surgery really holds up. Even if you have been rendered unconscious in some kind of accident/emergency and need to undergo surgery, the procedure aims to save your life and you're being taken care of medical professionals. What are they supposed to do, let you die because you cannot consent?
    posted by Foci for Analysis at 1:04 PM on May 27, 2011


    Yeah, it looks like a hard case making bad law to me. While there was definitely something wrong in the particular case that made it before the Court, I'm not sure that extending a general rule out from it was really the best thing to do. As others have pointed out, there are many circumstances, including anesthesia, where a person may consent in advance knowing that they will be unable to do so in the future due to being unconscious, and that seems to go against their general theory of consent being an "ongoing state of mind."
    posted by Kadin2048 at 1:06 PM on May 27, 2011 [1 favorite]


    Jesus Christ, do people really think consent for surgery is the same thing as consent for sex?
    posted by kmz at 1:08 PM on May 27, 2011 [1 favorite]


    The article specifies "sexual activity" about 3,000 times

    BUT WHAT IF I WANT TO GARDEN YOUR GARDEN WHILE YOU'RE SLEEPING WHAT THEN HUH? HUH??!!
    posted by the young rope-rider at 1:12 PM on May 27, 2011 [13 favorites]


    kmz, you'd be better served to articulate what you think the important difference is. As I see it, both involve basically consent to be touched by another person at a time when you are unable to give immediate consent. I guess you can argue that some medical procedures are life preserving and thus should be treated under different rules, but that's not true of certain types of, for instance, plastic surgery, and we do let people consent to that before they go undress.
    posted by Bulgaroktonos at 1:14 PM on May 27, 2011 [1 favorite]


    This is a terrible decision. It seriously curtails couples' sexual freedom to explore any kinks that may be based on sleeping or erotic asphyxiation (which is a really, really stupid kink to explore because you might end up killing your partner, but that's not the point).

    Pogo's point about surgery was exactly the example cited in the dissent, and I think it's clearly analogous. I can consent to someone performing certain acts on me when I'm unconscious. If the person then does something radically different without good cause - if instead of removing my appendix the doctor amputates my leg; or if instead of having, say, stright sex with me with a condom on, my partner decides to have rough, unprotected anal sex with me - then they are breaking the terms of their partner's consent and the law.

    Surely the court could have crafted a judgment that provided for consent to acts while unconscious that were within the bounds contemplated by the consenting person? I get the feeling that this case was decided the way it was because the accused in this case was clearly a partner-abusing asshole who deserved to go to jail just for being who he is. But that's no way to craft the law of the land.

    A blanket prohibition on pre-consent to unconscious sexual activity is a serious infringement of individual liberty and autonomy. It's also pretty fucking prudish, IMHO.
    posted by Dasein at 1:15 PM on May 27, 2011 [13 favorites]


    So when my wife used to wake me up every so often with a little midnight surprise during our early honeymoon years, she was raping me under Canadian law? Cool. Now I've finally got the upper hand!
    posted by saulgoodman at 1:16 PM on May 27, 2011


    And another one of an ex-girlfriend's unusual sexual interests is now criminalized.

    You don't know her. She's from Canada.
    posted by adipocere at 1:20 PM on May 27, 2011 [4 favorites]


    Undress = under
    posted by Bulgaroktonos at 1:23 PM on May 27, 2011


    Forget RTFA..... Read the fucking posting. "Consent for sexual activity". AAARGH.
    posted by Dark Messiah at 1:28 PM on May 27, 2011


    Canuck court claims consciousness-less consent clearly crap.

    An amazing attempt at alliteration. Assembled audience? Astounded!
    posted by Cool Papa Bell at 1:28 PM on May 27, 2011 [12 favorites]


    Medical treatment by a licensed professional, usually with additional witnesses (nurses, aides, whatever) is completely different from sexual contact.

    In reality, even most rapists don't get charged or convicted, so I'm quite sure that your freedom to be awoken with a blowjob is functionally intact.

    Now women have one less hurdle to jump over when proving that they've been raped, and I think that's a good thing.

    my partner decides to have rough, unprotected anal sex with me - then they are breaking the terms of their partner's consent and the law.

    And the chances that anyone will actually do anything about it are very small indeed.
    posted by the young rope-rider at 1:29 PM on May 27, 2011 [4 favorites]


    "Surely the court could have crafted a judgment that provided for consent to acts while unconscious that were within the bounds contemplated by the consenting person?"

    the problem is that if you're unconscious, you do not have the opportunity to *withdraw* that consent, or change the terms of it. surely the law should err on the side of protecting the person's right to given and withdraw consent?
    posted by wayward vagabond at 1:30 PM on May 27, 2011 [1 favorite]


    That last link would make for a great FPP all on its own; thanks for posting it, greatgefilte.
    posted by brina at 1:30 PM on May 27, 2011


    I don't think anyone's arguing that his makes surgery illegal, just that it's inconsistent with a long standing rule in another sphere that allows for consent to activities that happen while you are unconscious. I see no reason to distinguish the two instances of consent, especially when that has the added effect of restricting harmless sexual activity.
    posted by Bulgaroktonos at 1:32 PM on May 27, 2011 [2 favorites]


    If you don't know someone well enough to be absolutely certain, "this person will not be upset and will not press charges against me if I wake her up with sex" or "this person will not be upset and will not press charges against me if she passes out while we're having sex and I keep going" then you should not do those things.
    posted by straight at 1:35 PM on May 27, 2011 [6 favorites]


    the problem is that if you're unconscious, you do not have the opportunity to *withdraw* that consent, or change the terms of it.

    You're right. I don't see that that's a problem, if for no other reason that that we typically want to change our consent because we don't like what's happening to us, whereas if we're asleep we're not not-liking anything. The second we wake up in any discomfort, we can withdraw consent. It would be easy to for the law to say, you can't consent to being physically harmed while asleep, or whatever. But why shouldn't someone be able to consent to their partner having sex with them while they're asleep? So long as everyone goes in knowing what's going to happen, why do you need an opportunity to withdraw that consent before you wake up?
    posted by Dasein at 1:39 PM on May 27, 2011


    I see no reason to distinguish the two instances of consent, especially when that has the added effect of restricting harmless sexual activity.

    Don't you have to sign a consent form in order for doctors to perform surgery? To make sure everything is legal and what not? I don't believe there is any legal system anywhere, that requires people to sign a consent form for any sexual activities, conscious or not.
    posted by nooneyouknow at 1:41 PM on May 27, 2011 [1 favorite]


    And the chances that anyone will actually do anything about it are very small indeed.
    posted by the young rope-rider at 1:29 PM on May 27 [+] [!]


    Did you read the details of the case? It doesn't seem to me so clear to me. This particular case sounds like she actively consented to these acts, became unconscious, then one month later reported the event to police because they were arguing a lot.
    posted by skewed at 1:43 PM on May 27, 2011 [2 favorites]


    If you don't know someone well enough to be absolutely certain, "this person will not be upset and will not press charges against me if I wake her up with sex" or "this person will not be upset and will not press charges against me if she passes out while we're having sex and I keep going" then you should not do those things.

    It's really not a healthy legal system if you're only 'legal' as long as someone isn't pressing charges. See Lawrence v. Texas.
    posted by 0xFCAF at 1:45 PM on May 27, 2011 [8 favorites]


    This seems... weird. By the reasoning they used, you can't consent to surgery either, since you'll be unconsious and since "The definition of consent is an ongoing state of mind where individuals can ask" the surgeon to stop....

    You sign a release form (usually several) when you go into surgery. And yes, you can sue for surgery you did not consent to; that's why they have release forms. That's why especially paranoid types write on their bodies "I AM HERE FOR AN APPENDECTOMY ONLY" with permanent marker before they go under.

    So if you want the unconscious sex, get some lawyers and draw up a release form. Tape everything so nothing is done you don't want done while you're out. Yeah, it's weird, but no weirder than someone sexing you while you're unconscious.
    posted by emjaybee at 1:46 PM on May 27, 2011 [3 favorites]


    it's inconsistent with a long standing rule in another sphere that allows for consent to activities that happen while you are unconscious. I see no reason to distinguish the two instances of consent,

    Exactly. It's in a completely different sphere. Other things medical professionals can do that no one else can include breaking bones, cutting you open with a knife, administering narcotics...all things that you need to have consented to in written form, and all things you can sue them over if they fuck up or do something you don't want them to.

    You also need to be anesthetized for various procedures to be safe and not traumatic or overly painful. There are procedures that cannot be reasonably preformed while a patient is awake. That has to be balanced against your ongoing ability to withdraw consent.

    None of this applies for sexual activity.
    posted by the young rope-rider at 1:46 PM on May 27, 2011 [1 favorite]


    if we're asleep we're not not-liking anything

    By that logic, why even bother getting prior consent?
    posted by kmz at 1:46 PM on May 27, 2011


    I think this ruling is overbroad, but it's probably better than nothing.

    Rape is difficult to prosecute because, unlike surgery, sex partners normally don't fill out forms to indicate what they're consenting to. Even in cases where they do, there aren't any legal standards for how specific the consent has to be in order to "count," leading to bizarre decisions like the Glen Marcus case in the US, where the defendant was convicted of sex trafficking and forced labor, but not of rape, even though he was the sex partner in the aforementioned trafficking. The victim had previously filled out a vaguely worded letter of total submission with no safeword, so apparently that introduced just enough ambiguity to make a rape charge unsustainable.

    Given how much the submissive party has to trust the dominant one in relationships like the one this article is about, and how much physical and emotional damage is possible, it seems appropriate that the dominant party has to trust that the submissive one won't arbitrarily change their mind and report it as a rape.

    All that said, I think it would make a great deal more sense to introduce multiple "degrees" of rape, as for degrees of murder, in order to better account for the many, many situations where consent is ambiguous.
    posted by LogicalDash at 1:49 PM on May 27, 2011 [1 favorite]


    So if you want the unconscious sex, get some lawyers and draw up a release form. Tape everything so nothing is done you don't want done while you're out. Yeah, it's weird, but no weirder than someone sexing you while you're unconscious.

    It seems under this ruling, the written consent, release forms, legal witnesses, etc. would not be enough. Once you're unconscious, no more consent.
    posted by skewed at 1:50 PM on May 27, 2011


    So you can sign a consent form to allow sleep sex?
    posted by smackfu at 1:52 PM on May 27, 2011


    (Oops that's what I get for not previewing.)
    posted by smackfu at 1:52 PM on May 27, 2011


    Did you read the details of the case? It doesn't seem to me so clear to me.

    I run in kinky circles, so yeah, I'm familiar. I was speaking about the difficulty of pursuing any kind of rape case, much less "my spouse/significant other raped me".

    I might be more conservative than other BDSMers, but I think that for the law to function in an appropriately protective capacity it might inadvertently limit some forms of consensual play, and I'm okay with that.
    posted by the young rope-rider at 1:53 PM on May 27, 2011 [1 favorite]


    It's not true, at least in the US, that only medical professionals can break bones, etc. I could, if I wanted, turn to the guy next to me and consent to have him break my arm.

    It's also not true that sexual activity does not require unconsciousness. While most sexual activity doesn't there is obviously a group of people for whom their desired sexual activity requires one party to be unconscious. Their preferred kink is now illegal.
    posted by Bulgaroktonos at 1:54 PM on May 27, 2011 [1 favorite]


    So will this make it easier to prosecute in rape cases involving alcohol consumption? Will it stop the victim-blaming?
    posted by sunshinesky at 1:55 PM on May 27, 2011 [2 favorites]


    Unconscious is a pretty bright-line test. Alcohol consumption is not, except for no alcohol at all.
    posted by smackfu at 1:57 PM on May 27, 2011 [1 favorite]


    I'm mostly dismayed by how apparently this wasn't common sense enough that it needed to be taken to the Supreme Court.
    posted by cmgonzalez at 2:02 PM on May 27, 2011 [2 favorites]


    I could, if I wanted, turn to the guy next to me and consent to have him break my arm.

    Not true--this is something else that comes up in BDSM circles quite a bit. He can still be charged with assault because you can't consent to grievous bodily harm with few exceptions (like surgery).

    This is where criminal lawyers will be much better than I at detailing the limitations of consent.
    posted by the young rope-rider at 2:03 PM on May 27, 2011 [2 favorites]


    Good post, greatgefilte. I was thinking about making one when I got home.

    I think the posters above who are talking about the analogies to medical treatment are wrong in their analogizing. It's pretty clear that surgery is different from sex. McLachlin CJ. talks about this around paragraphs 55-58, and I think she's correct. To use an equally-bad analogy, we protect surgeons from liability when they honestly believe that the patient needed it. It's implied consent, in a manner of speaking. Obviously, there is absolutely no implied consent for sexual activity, nor should there be.

    And Bulgaroktonos, here in Canada we can't really consent to serious bodily harm. Technically speaking, consent is vitiated at common law by that. That is narrowly construed, so the Court won't vitiate consent frequently, and in this case it doesn't matter. Fish J in dissent talks about it around para 130.*

    Personally, I think this dissent is wrong-headed, and the dissent nails it pretty clearly. it's overbroad and harmful to people with "alternative" sexual practices.

    A few good quotes from the dissent:
    "[p]rosecutorial deference cannot compensate for overextension of the criminal law; it merely replaces overbreadth and uncertainty at the judicial level with overbreadth and uncertainty at both the prosecutorial level and the judicial level” (Para 120)

    "the absence of consent is an essential element of the actus reus and must therefore be proved, beyond a reasonable doubt, by the Crown." [94]

    "In my respectful view, it is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy. And it is wrong on the facts of this case.
    That is what divides us. The rest is commentary." [82]

    *Side-effect of universal health care: gov't doesn't like having to pay for treatment ;)
    posted by Lemurrhea at 2:03 PM on May 27, 2011 [2 favorites]


    The "good morning sweetheart" wakeup blowjob is the best thing ever. But -- of course -- leave it to Canada to make this illegal.
    posted by slumberfiend at 2:06 PM on May 27, 2011 [1 favorite]


    Context does affect the rules of consent, according to Canadian law. Parliament has explicitly differentiated between situations of medical consent and sexual consent (and probably others – who knows, I'm no lawyer). From the the ruling:

    [55] J.A. submits that this is what the law has done in the medical field, where the common law recognizes that doctors may perform surgery on unconscious patients. This argument fails to appreciate, however, that consent functions differently in different contexts: G. P. Fletcher, Basic Concepts of Legal Thought (1996), at p. 112. A number of considerations make consent to sexual activity different from consent in other contexts such as medical interventions, and property transactions. Parliament has indicated that the notion of consent for sexual assault is distinct from consent in other contexts (Criminal Code, ss. 273.1 and 273.2). It has also enacted special protections for medical practitioners, exempting them “from criminal responsibility for performing a surgical operation on any person for the benefit of that person” (s. 45). Consequently, the fact that individuals may consent in advance to surgery does not determine if they may consent in advance to sexual activity. The body of pragmatic, context specific rules of consent to govern medical operations developed by Parliament and at common law does not permit this Court to overrule the requirements in the Criminal Code for consent to sexual acts. Moreover, the two situations are different. The pragmatic considerations that inform the definition of consent in the context of surgical operations differ from those that arise in the case of sexual activity. Surgical interventions are usually carefully planned, and appropriate consent is assured by consent forms and waivers — all to the end of limiting the risk of abuse. Such safeguards are rare, if perhaps non-existent, in the sexual arena. (Emphasis mine)
    posted by Kabanos at 2:06 PM on May 27, 2011


    If you don't know someone well enough to be absolutely certain, "this person will not be upset and will not press charges against me if I wake her up with sex" or "this person will not be upset and will not press charges against me if she passes out while we're having sex and I keep going" then you should not do those things.

    As skewed points out, this case is more like:
    If you don't know someone well enough to be absolutely certain, "in a few months during a custody dispute this person will not be upset and press changes against me." And I have no personal knowledge of those kinds of disputes, but everything I've seen, on AskMe and elsewhere, says that few people can be sure.
    posted by Lemurrhea at 2:07 PM on May 27, 2011 [4 favorites]



    Unconscious is a pretty bright-line test. Alcohol consumption is not, except for no alcohol at all.


    While alcohol consumption-related black-outs do not technically qualify as loss of consciousness, where do we really draw the line when over-consumption can quite plausibly have lead to a loss of consciousness, however brief? I don't think it's as obvious as you do under these circumstances.
    posted by sunshinesky at 2:07 PM on May 27, 2011


    The "good morning sweetheart" wakeup blowjob is the best thing ever. But -- of course -- leave it to Canada to make this illegal.

    You can just slap the handcuffs on him/her right after.
    posted by Kabanos at 2:08 PM on May 27, 2011


    I might be more conservative than other BDSMers, but I think that for the law to function in an appropriately protective capacity it might inadvertently limit some forms of consensual play, and I'm okay with that.

    As has been pointed out over and over in this thread, you shouldn't be.
    posted by kafziel at 2:08 PM on May 27, 2011


    What about if someone is getting a massage and falls asleep, could the customer then sue? Seems any touching (save for medical professionals specifically excluded in Kabanos' link) of an unconscious person is illegal.
    posted by roquetuen at 2:11 PM on May 27, 2011 [1 favorite]


    So will this make it easier to prosecute in rape cases involving alcohol consumption? Will it stop the victim-blaming?

    This is the big question, isn't it? My gut instinct is no [NB: law student in Canada, so I know just enough to be dangerously wrong]. It'll shift the defence from "she wanted it and passed out" to "she didn't pass out at all until afterwards, she was just too drunk to remember." Because that's still legal, as well it should be I think.

    So it still comes down to two sides giving conflicting testimony. Which is where victim-blaming comes from.
    posted by Lemurrhea at 2:12 PM on May 27, 2011 [1 favorite]


    If you don't know someone well enough to be absolutely certain, "this person will not be upset and will not press charges against me if I wake her up with sex" or "this person will not be upset and will not press charges against me if she passes out while we're having sex and I keep going" then you should not do those things.

    Read the article. She consented to the act, but reported it to the police a month and a half later after she had a heated argument with her partner [text NSFW]:
    The complainant testified that she had consented to J.A. choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. The complainant testified that she had previously given her consent to this activity when the parties had discussed what was allowed and not allowed in the context of their sexual relationship and laid out ground rules. She explained that she had complained to the police about the incident about a month and a half later as a result of an argument with the appellant.
    They had been together for seven years and had a son together. They regularly performed activities of this nature with consent, discussed the "ground rules" in advance, and had a safe word established for when she was conscious. I think most people in that situation would reasonably believe that their partner wouldn't be upset, let alone press charges, if the sex acts fell within the bounds of their previously discussed guidelines.
    posted by zachlipton at 2:13 PM on May 27, 2011 [5 favorites]


    This is from the decision

    K.D. made a complaint to the police two months later and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred. She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son. The trial judge convicted J.A. of sexual assault. A majority of the Court of Appeal allowed the appeal, set aside the conviction and dismissed the charges against J.A.

    So by this ruling a man who performed a sexual act with permission was convicted as a sex criminal, apparently as a way of weakening him in an unrelated dispute.
    posted by Winnemac at 2:13 PM on May 27, 2011 [3 favorites]


    "we typically want to change our consent because we don't like what's happening to us, whereas if we're asleep we're not not-liking anything. The second we wake up in any discomfort, we can withdraw consent."

    why should someone have to wait until their consent has been trespassed in order to revoke it or change it?? that completely nullifies the idea of consent in the first place.

    consent is granting someone a privilege which is defined by it's ability to be given or revoked - it is not a *right* the other party is entitled to. it cannot be consent unless you have the ability and opportunity to change your mind freely - that's obviously not possible when someone is unconscious.
    posted by wayward vagabond at 2:14 PM on May 27, 2011 [1 favorite]


    I might be more conservative than other BDSMers, but I think that for the law to function in an appropriately protective capacity it might inadvertently limit some forms of consensual play, and I'm okay with that.

    It's common for conservatives in any given community to believe that the status quo is ok, primarily b/c the status quo tends to give protection to their interests. Conservative BDSMers are not immune to this phenomena, it would seem.
    posted by modernnomad at 2:15 PM on May 27, 2011


    Lots of kinks are illegal.

    So by this ruling a man who performed a sexual act with permission was convicted as a sex criminal, apparently as a way of weakening him in an unrelated dispute.

    Or, she was always uncomfortable with the act, and it took several weeks to convince herself to go through the shitty, shitty, shitty process of prosecution.

    Not saying I'm right, but we don't have to be entirely uncharitable to the victim just because we disagree with the outcome.
    posted by muddgirl at 2:15 PM on May 27, 2011


    It's not clear to me that this ruling makes a kink illegal. There are an awful lot of rape fetishists who get by with role-play only. It's not terribly difficult to role-play being asleep.
    posted by LogicalDash at 2:16 PM on May 27, 2011 [2 favorites]


    Actually Winnemac, there was no evidence before the court that the complainant consented to being tied up and sodomized, only that she consented to being choked into unconsciousness.
    posted by modernnomad at 2:16 PM on May 27, 2011


    But that's not even relevant since she couldn't consent to anything.
    posted by smackfu at 2:17 PM on May 27, 2011


    I was overstated my case somewhat by using the broken bone example, but plenty of things that were identified as things only doctors can do like administer drugs are legal in some states if done with consent by anyone. My phone is a bad way to do legal research, but the idea that doctors are the only people allowed to touch me harmful with my consent is wrong.
    posted by Bulgaroktonos at 2:23 PM on May 27, 2011


    Actually Winnemac, there was no evidence before the court that the complainant consented to being tied up and sodomized, only that she consented to being choked into unconsciousness.

    "She later recanted her allegations"

    I guess I don't understand how much she recanted then. The framing of this was that there was consent but that it doesn't count if only in advance.

    But that's not even relevant since she couldn't consent to anything.
    Well, obviously now that's the case.
    posted by Winnemac at 2:23 PM on May 27, 2011


    Actually Winnemac, there was no evidence before the court that the complainant consented to being tied up and sodomized, only that she consented to being choked into unconsciousness.

    Apparently that's a somewhat confusing question. Again, from the article (NSFW):
    On the night in question, the complainant agreed that she knew there was a possibility that she would lose consciousness. She confirmed that she consented to this behaviour and did lapse into unconsciousness. She awoke to find herself on all fours, with her hands tied behind her back and the appellant penetrating her in the anus with a dildo. This conduct continued for approximately ten seconds and the couple then had vaginal intercourse. Once they were finished, the complainant said her “safe word” and the appellant cut her ties.

    The complainant confirmed that having her hands tied behind her back was not uncommon. In examination-in-chief the complainant explained that being penetrated in the anus with a dildo was something new they were trying. In cross-examination she initially confirmed that the appellant had never previously inserted a dildo in her anus, but indicated that she did not object to it. Later, however, she adopted her prior testimony at the appellant’s bail hearing that anal penetration with a dildo had happened before and confirmed that she consented.
    So it's her undisputed testimony that she considered being tied up and choked to be in-bounds. She initially testified that the dildo was also in-bounds and that she had consented to that, later testified that it had never happened before but that she "did not object to it," and then again testified that they had done it before and she consented. It seems from her testimony, assuming this summary is accurate, that she gave prior consent to all three of these acts, consent that would be, according to the court, automatically revoked when she lapsed into unconsciousness.

    I'm curious how this applies to other situations where a partner is conscious but unable to withdraw consent. What if you're tied and gagged? Obviously a safeword is good practice, but should it really be legally mandated?
    posted by zachlipton at 2:25 PM on May 27, 2011


    Or, she was always uncomfortable with the act, and it took several weeks to convince herself to go through the shitty, shitty, shitty process of prosecution.

    Not saying I'm right, but we don't have to be entirely uncharitable to the victim just because we disagree with the outcome.


    That's entirely possible, and I don't doubt that she felt upset with her partner and could well have been uncomfortable with the act. The problem is that consent can't really be something you change your mind about a month and a half later when you get into a argument about custody of your son. If you can withdraw consent retroactively, that puts your partner into a bit of a pickle unless he's got a time machine.

    Certainly, if she was under some kind of duress or her consent was coerced in any way, that's not true consent and she should have every right to file charges for rape. But if she freely and voluntarily consented, it's hard to see why she should get to revoke that consent retroactively later because she was uncomfortable with her decision. It's unfortunate if someone regrets their decision, but as grownups we have the right to make free and informed decisions that we're uncomfortable with or we'll regret.
    posted by zachlipton at 2:35 PM on May 27, 2011 [3 favorites]


    The problem is that consent can't really be something you change your mind about a month and a half later when you get into a argument about custody of your son.

    I don't see any clear evidence that this is what happened - according to the court, he never had consent to perform those acts, and it merely took a month and a half for the victim to decide to press charges. Maybe things are different in Canada, but in the US the victim's willingness to press charges, or extenuating circumstances thereof, doesn't actually matter. She reported a crime, it was prosecuted.

    as grownups we have the right to make free and informed decisions

    She couldn't make a free and informed decision because she was passed out.
    posted by muddgirl at 2:43 PM on May 27, 2011


    There's one aspect of this case that makes me think maybe the decision wasn't so bad. As it stands with the new case, consent is very very strictly an "in-the-moment" event. Consent can't be revoked later*, and now it can't be given before. It is only at the exact time of incident, and must be renewed for a "new type" of incident.

    Although I don't think it outweighs the reasons to allow this scenario, I think there's a benefit to being very hard-line on that issue. Consent is immediate. I can understand worry that opening the door in one direction opens it in both.
    posted by Lemurrhea at 2:47 PM on May 27, 2011


    She couldn't make a free and informed decision because she was passed out

    But you honestly think it's not possible to agree to something like that beforehand? I can't consent to let someone do something in the future? Thats just bizarre to me.

    As zachlipton says, this also would seem to mean that any heavy restraint play would be illegal -- if you can't communicate consent at every moment, does that make it not consent? Even if you immediately beforehand give explicit consent? I don't see why it needs to be that strict, as long as whats happening is within the explicitly consented to acts.
    posted by wildcrdj at 2:48 PM on May 27, 2011


    Ok, a question to those of us who agree with the decision:

    Suppose there had been no anal dildo, no tying-up. She consented to being choked and vaginal sex, and nothing else happened. Still rape?
    posted by Lemurrhea at 2:48 PM on May 27, 2011


    Suppose there had been no anal dildo, no tying-up. She consented to being choked and vaginal sex, and nothing else happened. Still rape?

    I wondered this myself, since I assumed that there was still penetration happening at the moment she lost consciousness.
    posted by sunshinesky at 2:52 PM on May 27, 2011


    It's not clear to me that this ruling makes a kink illegal. There are an awful lot of rape fetishists who get by with role-play only. It's not terribly difficult to role-play being asleep.

    Except I think the kink here is erotic asphyxiation, where the asphyxiation is what leads to a higher state of arousal. It's dangerous and classified as a paraphilia in the DSM (not that this classification means much at all, since the DSM classified homosexuality as a disorder until not all that long ago and still can consider various forms of sadomasochism as disordered, although DSM-5 is examining this issue), but it's a kink and some people are obviously into it.

    It's not necessarily such an awful idea to say that this particular kink should be illegal because it's dangerous and because consent can't be withdrawn once your partner is unconscious, but it would still be making a kink illegal. If you role-play being asphyxiated, I imagine that rather takes the fun out of it, although I can't say I've ever tried.
    posted by zachlipton at 2:52 PM on May 27, 2011


    it cannot be consent unless you have the ability and opportunity to change your mind freely

    Why not? Really, why not? How is it possible for me to consent to medical procedures under anesthetic if this is the case?

    I truly don't understand why I am unable to consent to a specific action or set of actions with a particular person in a particular place in the near future, when I am unconscious. If I know who is going to do what to me when, I don't see why I should have to be awake when the thing happens for my consent to be valid.

    Don't get too caught up in the facts of the case - it may well be that in this case, the accused went beyond the bounds of the victim's consent. That's not the point. The point is that the court has said that it is impossible to lawfully consent to any sexual activity when you're unconscious. They could have said that such consent is possible, but on the facts of this case the accused needs to be convicted. They didn't do that. Instead, they let the law take a giant leap into the bedrooms of the nation.
    posted by Dasein at 2:57 PM on May 27, 2011 [4 favorites]


    I don't see any clear evidence that this is what happened - according to the court, he never had consent to perform those acts, and it merely took a month and a half for the victim to decide to press charges. Maybe things are different in Canada, but in the US the victim's willingness to press charges, or extenuating circumstances thereof, doesn't actually matter. She reported a crime, it was prosecuted.

    You can't say "the courts say he didn't have consent and therefore he didn't have consent." That's the issue here. He clearly believed he had consent, and she clearly believed he had consent for six weeks. And the appellate court believed he had consent, at least. This is not a simple issue, which is why this thread exists.
    posted by TypographicalError at 3:04 PM on May 27, 2011 [2 favorites]


    I don't see any clear evidence that this is what happened - according to the court, he never had consent to perform those acts, and it merely took a month and a half for the victim to decide to press charges.

    That's not what seems to have happened here. If it were a matter of "I consented to X and he did Y" then it would clearly be rape or assault or whatever. The whole point of the case is whether or not consenting to X acts before unconsciousness counts as consent while unconscious. Or am I missing something?
    posted by skewed at 3:09 PM on May 27, 2011


    It's not clear to me that this ruling makes a kink illegal. There are an awful lot of rape fetishists who get by with role-play only. It's not terribly difficult to role-play being asleep.

    If my kink is having sex with an asleep person, then role playing works great. If my kink is having someone else have sex with me while I am asleep, role playing is going to be pretty unsatisfying.

    I'm all for consent, but some aspects of this seem very problematic to me. I don't like the surgery comparison, but no wakeup sex? Really? It just seems to me that there needs to be some mechanism for giving (limited and conditional) consent ahead of time in some kinds of situations.
    posted by Forktine at 3:12 PM on May 27, 2011 [2 favorites]


    Canada's supreme court: too much philosophy, not enough common sense. (Unlike America's: too much politics masquerading as common sense)
    posted by Philosopher's Beard at 3:20 PM on May 27, 2011 [2 favorites]


    I praise the strengthening of consent guidelines but I have to object when that strengthening means that consent cannot be given by a sound adult. And, like Lemurrhea, I like the idea of treating consent as a moment-by-moment concept, but having no mechanism for a willing adult to say, "I want this specific thing, knowing that at the moment it happens I will not be able to affirm that, and so I am affirming it now" is troubling to me.

    Ad I guess it's troubling to me because, outside of the situation presented, which (and I very well may be reading this uncharitably to the victim - I obviously wasn't there) appears to be one of prior consent given for an act that the couple had repeatedly played around with, and consent confirmed upon waking, and then brought up in the context of testing the law to make what previously wasn't rape in letter or spirit into rape by ... "technicality" isn't the right word, but I'm going to use it here anyway... well... it's hard to think of another situation where this could come up with an aggrieved victim where other elements of rape would also be present.

    If the acts, intensity, persons present, etc. change from what was consented to beforehand during the period of unconsciousness, then there was no consent for those. That is rape. If a partner wakes up and says, "no," and the other partner doesn't cease immediately, that's rape. Basically, any situation I can think of that isn't this one seems pretty clearly like rape to me, by reasoning that doesn't require this ruling, but not this one in particular. This seems like, and I hate to say it, it was of turning consensual activites into rape after the fact, and for reasons not related to the act itself.

    Again, I might be wrong on that reading. I'm not trying to blame the victim here, for one thing because that's abhorrent, but also because I don't think there's any blame to be cast here. To my eyes, they played around with a consensual kink. Also, I should add that I am aware that what I described in my previous paragraph is not exactly how the world works, and that sexual assault cases are horribly unprosecuted and thrown out and dismissed for awful reasons usually related to a neanderthal view of consent.

    This needs to be fixed, I just don't believe that rulings like this are the proper way to fix it. I believe that what we need is a shift in mindsets towards an "enthusiastic consent" model and that well-intentioned law like this works against that shift.

    I also think that erotic asphyxiation is stupidly dangerous and not worth the risks involved, but that's another story.

    (I know I might catch some shit for these opinions, so let me state right now that I am open to having my mind changed by civil discussion, and am really, really not trying to flame-bait or offend anyone. This one is tricky.)
    posted by Navelgazer at 3:21 PM on May 27, 2011 [8 favorites]


    So apparently the issue of safewords for the deaf came up before in an AskMe of all places, and many of those answers address the bound and gagged scenario (you can still hold a small doorbell that you press or a tennis ball that you drop). That still doesn't help you if you're actually unconscious of course, but it does help answer my question above.

    it cannot be consent unless you have the ability and opportunity to change your mind freely

    The issue here is that she consented to waive that very opportunity during the period she was unconscious. But that's not how consent really works in basically any other context. Besides the surgery example discussed above, we encounter lots of situations when we consent to things, some trivial and some life-or-death, when we won't reasonably be able to change our minds. I can give someone consent to make decisions on my behalf if I end up in a persistent vegetative state, and that decision could well involve the withdrawal of life support. I can also put my money in an irrevocable trust and give someone else permanent consent to manage it according to a fixed set of directions. I can give someone power of attorney so that they can manage virtually all of my affairs when I have dementia and am legally incapable of revoking consent. Less critically, I can give the hotel operator my consent to harass me at 5:30am with a wake-up-call, or I can give my neighbor consent to enter my home and feed my cat while I'm out of contact because I'm on an airplane or scuba diving or blasting off to the International Space Station. If I'm playing in an American football game, I mostly likely have no reasonable opportunity to withdraw my consent to be tackled according to the rules of the game during the time period between the snap and the end of the play.

    Now, maybe we decide as a society that sex is different and that there's a higher standard. After all, someone with power of attorney can generally sell my house and send me to a nursing home against my will, but they can't consent on my behalf to have sex, for obvious good reason. But if we let you consent in advance to letting someone pull the plug on you, do we really want to say that you can't consent in advance to sexual activity.
    posted by zachlipton at 3:30 PM on May 27, 2011 [9 favorites]


    K.D. is a selfish asshole (non-sexist pejorative deliberately chosen) who has made her own kink more dangerous for herself and everyone like her in the future.

    If there's one thing that is far more dangerous than asking your partner to choke you, it's doing it yourself, because your partner will probably let you breathe when you pass out but your cool self-bondage rig might not. Canada has just made it a very bad idea to help anyone like this fulfill their fantasies in a safer way. Congrats, Canada, this is sure to expand the ranks of the David Carradine Special Darwin Award winners.
    posted by localroger at 3:52 PM on May 27, 2011


    Other things medical professionals can do that no one else can include breaking bones, cutting you open with a knife

    Are you so certain it would be illegal for someone to hit my arm with a baseball bat if I give them clear and unequivocal consent?
    posted by Justinian at 4:01 PM on May 27, 2011


    slumberfiend: "The "good morning sweetheart" wakeup blowjob is the best thing ever. But -- of course -- leave it to Canada to make this illegal."

    Epony... yeah.
    posted by symbioid at 4:02 PM on May 27, 2011 [2 favorites]


    (Also, FWIW, I know it's not a sound analogy, but the surgery argument does actually speak to me. I am paranoid about someone else having control over my body, and Doctors are the pinnacle of this fear, rationally or not. Doctors have a HUGE unofficial power imbalance in gaining consent for what they will do to your person and even if you are fully conscious may feel secure enough in their greater knowledge as to ignore requests for them to stop doing something, and many don't exactly have the most reassuring bedside manner about the fears that patients may have about going under and leaving themselves to their devices. We let them do it anyway because Doctor Knows Best. By comparison, I lived with a woman years ago who would regularly wake me up fucking me. This was NOT a "good morning blowjob," but rather clearly that she needed to get laid before going off to work and didn't give a shit if I was awake or not. Still, I adored this, not despite my phobia, but because of it. Here was a woman I loved and trusted enough to allow unfettered access to me, and that felt great, emotionally. This is all anecdotal, of course, but dismissing the medical analogy out of hand, imperfect though it may be, doesn't sit well with me.)
    posted by Navelgazer at 4:10 PM on May 27, 2011 [1 favorite]


    slumberfiend writes "The 'good morning sweetheart' wakeup blowjob is the best thing ever. But -- of course -- leave it to Canada to make this illegal."

    What's surprising about this is it really isn't an obviously Canadian stance; the government is fairly hands off when it comes to consensual sexual activity (“There's no place for the state in the bedrooms of the nation” and "what's done in private between adults doesn't concern the Criminal Code."). Obviously the issue at hand is whether it was consensual but the ruling appears overly broad.

    straight writes "If you don't know someone well enough to be absolutely certain, 'this person will not be upset and will not press charges against me if I wake her up with sex' or 'this person will not be upset and will not press charges against me if she passes out while we're having sex and I keep going' then you should not do those things."

    Needing to trust someone not to report an activity between consenting adults that happens to be illegal is a horrible way for society run and law to be enforced. For one thing it is rife with possible abuse during custody and divorce proceedings.
    posted by Mitheral at 4:12 PM on May 27, 2011 [1 favorite]


    Are you so certain it would be illegal for someone to hit my arm with a baseball bat if I give them clear and unequivocal consent?

    I touched on this above, but in Canada, yeah. In the absence of a particular scenario (say a hockey arena where a hard check is not unexpected), and if bodily harm is both intended and caused, then consent doesn't fly.

    From R v Paice, 2005 SCC 22, it's pretty clear that you just can't consent to serious damage. That case was about a consensual fist fight (starting in a bar), which ended in death. Manslaughter was acceptable for such a thing, even though the deceased consented.

    But that's a tangent here, since seemingly no bodily harm occurred, and there was certainly no intention to do so even if there was.

    Also, I'm not sure I approve of this jurisprudence, since it really blocks the adoption of assisted suicide, but that's an even bigger tangent. It's the law, no question about it.

    posted by Lemurrhea at 4:12 PM on May 27, 2011


    What's surprising about this is it really isn't an obviously Canadian stance; the government is fairly hands off when it comes to consensual sexual activity

    Sadly, the dissent agreed with you completely.
    [116] Respect for the privacy and sexual autonomy of consenting adults has long been embraced by Parliament as a fundamental social value and an overarching statutory objective: “Keeping the state out of the bedrooms of the nation” is a legislative policy, and not just a political slogan.
    Fish seems pretty vehement about this ruling. A number of times he talks about worries that he'd be mistaken, he's being very careful to denote what exactly he's saying.

    I'm very sad to see Abella on the majority in this. While it wouldn't matter, her and Binnie are the two justices I respect the most. And now Binnie is leaving.
    posted by Lemurrhea at 4:17 PM on May 27, 2011 [1 favorite]


    Also, I'm not sure I approve of this jurisprudence, since it really blocks the adoption of assisted suicide, but that's an even bigger tangent. It's the law, no question about it.

    Does it? It'd block off consent to be euthanized, but not consent to have someone set up the kit to which you will then push the button. (Yes, other things may well block that, but not this decision.)

    Nevertheless, I agree with you and others that this decision is unfortunate. I'm liking the quoted dissenting judge a lot.
    posted by clauclauclaudia at 4:33 PM on May 27, 2011


    mudgirl: according to the court, he never had consent to perform those acts, and it merely took a month and a half for the victim to decide to press charges.

    Can you provide a cite for this. I haven't read beyond this thread, but all the quotes and hard information provided in thread here suggest that you are incorrect.
    posted by Chuckles at 4:33 PM on May 27, 2011


    What one person consents to, an other might not. It's better to err on the side of caution.

    You can't undo a rape, but you can reschedule or renegotiate sexual contact while asleep.
    posted by FunkyHelix at 4:47 PM on May 27, 2011


    What one person consents to, an other might not

    But one of the things we're discussing here is whether you can give specific, clear prior consent to something that will happen while you are unconscious or otherwise unable to remove consent. This is not about differences between people at all.

    I'm talking about negotiated consent to specific activities between two specific people. Some in this thread clearly still think that should not be legal. I sort of understand their position, but I strongly disagree. I would actually look at this as removing the right for me to consent to something (if I lived in Canada, as it is it's an interesting thing to discuss but does not affect me directly).

    I think this is a much stronger issue for those in the BDSM community, where consent is the foundation of everything. There are definitely subs who do not want safewords or other ability to withdraw consent during a scene. If that is negotiated clearly in advance, and the parameters are agreed to be all involved, it seems OK to me (although I personally would be wary about playing with someone who felt that way, it's not something I would prevent others from doing).
    posted by wildcrdj at 4:55 PM on May 27, 2011 [1 favorite]


    What one person consents to, an other might not. It's better to err on the side of caution.

    You can't undo a rape, but you can reschedule or renegotiate sexual contact while asleep.


    How is that being cautious? Who benefits from this new legal framework? In cases where consent is not validly rendered, it makes no difference that one party was unconscious. In cases where consent is validly rendered, certain actions are legally prohibited even between consenting adults.
    posted by skewed at 5:02 PM on May 27, 2011


    There are definitely subs who do not want safewords or other ability to withdraw consent during a scene. If that is negotiated clearly in advance, and the parameters are agreed to be all involved, it seems OK to me

    Not I: What you're talking about is tantamount to indentured servitude. If you can negotiate away your right to withdraw consent for something for one hour, you can do it for one year.
    posted by Justinian at 5:03 PM on May 27, 2011 [1 favorite]


    Not I: What you're talking about is tantamount to indentured servitude. If you can negotiate away your right to withdraw consent for something for one hour, you can do it for one year.

    Good point. I wonder what the legal outcome would be if a safeword-less sub/dom couple agreed on a no-holds-barred event, but during the act the sub wanted to withdraw consent and said something like "I'm serious, I swear to fucking Christ, if you don't stop touching me, this is rape."

    Sounds like rape to me if the dom doesn't stop. The whole safeword thing always seemed weird to me.
    posted by skewed at 5:09 PM on May 27, 2011


    I will add that I'm pleased with the tone of conversation here, and am at least glad that this was a Canadian decision. I fear that in the U.S. the judicial thinking would be less "strengthening the meaning of consent" vs. "keeping the state out of our bedrooms" and more "sexual freedom is icky and deviant and unworthy of protection" vs. "she was asking for it."

    In other words, while I disagree with where the ruling landed, I respect the priorities that it arose from.
    posted by Navelgazer at 5:11 PM on May 27, 2011 [3 favorites]


    Not I: What you're talking about is tantamount to indentured servitude. If you can negotiate away your right to withdraw consent for something for one hour, you can do it for one year.

    To me the difference is that indentured servitude usually implies something unpleasant. In what I'm referring to this is something the person giving up control actively desires and wants. So I ask -- if someone is really, actually happy to be an indentured servant, why is that bad?

    The phrase normally refers to someone who is doing it either as punishment for a crime or out of desperation for money/food/whatever. So I think it's a little misleading in this context.
    posted by wildcrdj at 5:20 PM on May 27, 2011


    Thinking about it more, what makes the most sense to me is an understood duty of care in these circumstances. Basically, as I wrote above, most bad consequences of unconscious sex would arise from the conscious partner deviating from the agreed-upon terms. But it is possible that some harm could come from, say, the man in the case cited being too rough with the dildo, or what have you. Doing something previously-consented-to but executing it in a manner injurious in some way to the unconscious partner.

    In either case here, a "duty of care" could bring a tort claim, and deviating from the consent could also bring sexual assault charges.
    posted by Navelgazer at 5:28 PM on May 27, 2011 [2 favorites]


    Good point. I wonder what the legal outcome would be if a safeword-less sub/dom couple agreed on a no-holds-barred event, but during the act the sub wanted to withdraw consent and said something like "I'm serious, I swear to fucking Christ, if you don't stop touching me, this is rape."

    This is a matter of some concern to me since my wife absolutely cannot have a safe word; she will abuse it when she doesn't really mean to and then beat herself up for three hours for ruining something that was going really well. But we've been together almost 30 years and I find it very easy to tell when she "really means it." If a dom is at all sensitive to how much fun a sub is having, it's not hard to tell the difference between "damn that whip really STINGS" and something like an actual muscle cramp that just destroys the mood.

    This is obviously not as easy if you are strangers. But the people in question had been going together for 7 years. I find it far more believable that idiot asshole girlfriend got pissed about something totally unrelated and decided to use their kink to her advantage, to the detriment of everybody else like her.

    Bringing the law into this was a selfish mistake and the ruling is an even bigger mistake. A world in which I can't arrange for a trusted friend to test my limits according to my own desires is a world in which I am not free.

    I'd say thank God I'm not Canadian, except for the whole health care thing. Poached Bob on a fuckstick what a fucked up world.
    posted by localroger at 5:30 PM on May 27, 2011 [1 favorite]



    To me the difference is that indentured servitude usually implies something unpleasant. In what I'm referring to this is something the person giving up control actively desires and wants. So I ask -- if someone is really, actually happy to be an indentured servant, why is that bad?


    It's not a bad thing for you to want to be (or pretend to be) an indentured servant. But not all of one's legal rights can be easily given up. You can say that you are my slave and enjoy being treated that way -- but if I sold you to a guy who wanted to use you for labor on his roofing crew and you were to say "hey, that's not what I had in mind!" that faux-slavery thing would turn out to be not particularly enforceable. You would be free to walk away, and any attempt to restrain you could be a big no-no. So a lot of the time, with bdsm stuff, people are playing at giving up control and consent -- but the real context is one where the person being whipped or prodded still retains legal consent and control.

    However, I think it is important to continue to allow people to consent to what are quite extreme situations that might be risky or even just a full-on Bad Idea. They need to retain all their legal rights (including to walk away, or to file charges if things turn ugly), but they also need the right to make choices. Sort of like the old anti-sodomy laws, this ruling says "Nope, even though you are an adult and in full mental capacity, you don't have the right to consent to this," and that doesn't really sit right with me.
    posted by Forktine at 6:06 PM on May 27, 2011 [2 favorites]


    Yeah, I mean in most normal scenarios it would be hard to go very long without being capable of withdrawing consent. The scenarios here are not so much about giving up the idea of consent but granting consent ahead of time for a fixed period where they will be incapable of giving it up.

    I'm not sure how exactly the law should be worded to account for this. But I think the judge's claim that "The definition of consent is an ongoing state of mind where individuals can ask their partner to stop" is overly restrictive.
    posted by wildcrdj at 6:13 PM on May 27, 2011


    This seems... weird. By the reasoning they used, you can't consent to surgery either, since you'll be unconsious and since "The definition of consent is an ongoing state of mind where individuals can ask" the surgeon to stop....


    Oh, for pity's sake, that's why we have consent forms, living wills, and other such ways to let the world know what you want in the case you are not in a state to say it.

    And just as I was feeling pretty darned optimistic about humanity today...
    posted by Alexandra Kitty at 6:22 PM on May 27, 2011


    "What you're talking about is tantamount to indentured servitude. If you can negotiate away your right to withdraw consent for something for one hour, you can do it for one year"

    Except indentured servitude implies irrevocably. If I've given my wife permission to get frisky with me while I'm sleeping I can revoke that right as soon as I wake up. I suppose if she was acting to keep me asleep this might be more analogous. A situation were someone consents to be drugged into a coma and kept in that state for sex would be problematic.
    posted by Mitheral at 6:23 PM on May 27, 2011


    I don't believe people should be allowed to legally be lifelong indentured servants, sex slaves, whatever.

    Role playing is one thing, do you really think anyone would be happy being treated like shit and tied up in someones basement for eternity? I can't imagine a society where we would defend the right of someone to consent to be tied up in a basement and skrewed by whoever for the rest of their lives without any possibility of revoking consent.

    And it's a real issue because there are people into that sort of thing. I personally will not be defending personal liberty to endure a lifetime of suffering with no hope of escape. It terrifies me that we would side with an indentured servant owner over someone who wants out because they made some agreement to never escape 8 years ago.
    posted by xarnop at 6:29 PM on May 27, 2011


    To me the difference is that indentured servitude usually implies something unpleasant. In what I'm referring to this is something the person giving up control actively desires and wants. So I ask -- if someone is really, actually happy to be an indentured servant, why is that bad?

    Sadomasochists like to blur the boundaries between pain and pleasure, don't they? It's rare for a masochist to enjoy all pain, all the time, in every context.

    There are any number of things that could change in an hour-long scene that would change the context so that what once was Good Pain is now Bad Pain. You don't necessarily know what those changes are beforehand, just as you can't know that a date will go well, even if you've been to the same restaurant with the same person before.

    So I don't think the analogy with indentured servitude is far off. If you agree to waive your right to withdraw consent and leave, then the only situation where that agreement means anything is if you are unhappy about what you've gotten into. The only situation where the agreement means anything is the situation where it hurts you.
    posted by LogicalDash at 6:47 PM on May 27, 2011


    Oh, for pity's sake, that's why we have consent forms, living wills, and other such ways to let the world know what you want in the case you are not in a state to say it.

    And just as I was feeling pretty darned optimistic about humanity today...


    Consent forms, contracts and other such ways wouldn't matter a wit according to this ruling, and that's the point of the surgery analogy. Once you're asleep, any consent you rendered to sexual activity is void. Why that should hold true for sex but not for say, a liposuction procedure is not clear. What about if a mechanic asks me if he can do an expensive repair on my car, but I fall asleep in his waiting room before he gets started. Should he have to wake me up and reaffirm that I want my timing belt replaced? Or is this standard only valid for sex. Why does sex get the diifferent consent criteria?

    I think it's interesting that those who think the surgery analogy is specious are so quickly dismissive, and as far as I can see, it's on the grounds that it's just obviously way different.
    posted by skewed at 7:01 PM on May 27, 2011 [2 favorites]


    Consent forms, contracts and other such ways wouldn't matter a wit according to this ruling, and that's the point of the surgery analogy.

    Yes. Exactly. People don't seem to be getting that in this thread (or judgment). For the majority, you can consent to certain activities (medical ones) when you are unconscious, but not to other (sexual) ones. Why do we need to be awake to consent to sexual touching, but not awake to consent to medical procedures? I can't understand the court's philosophical grounding here.
    posted by Dasein at 7:20 PM on May 27, 2011 [1 favorite]


    Why do we need to be awake to consent to sexual touching, but not awake to consent to medical procedures? I can't understand the court's philosophical grounding here.

    The court was squicked and it made a very, very bad decision. Judges are human.
    posted by localroger at 7:24 PM on May 27, 2011 [2 favorites]


    Sadomasochists like to blur the boundaries between pain and pleasure, don't they?.

    Way to fail it. It's not that we "like" to blur those boundaries, it's because for us those boundaries start off blurred. It's not like we're trying to piss on your Wheaties by being what we are.
    posted by localroger at 7:28 PM on May 27, 2011


    Why do we need to be awake to consent to sexual touching, but not awake to consent to medical procedures? I can't understand the court's philosophical grounding here.

    Part of it is that there is a more expansive content-system for medical procedures. We have implied consent, we have emergency consent (or rather, protection from liability in emergency scenarios, but same thing) in surgery, and the majority wants to bar those doors in the sexual sphere. Which they're right to want, of course.

    Part of it is that the history of medical procedures and the history of sexual assault are exceedingly different. The law in its current form was enacted to cut out a lot of the possibility of "she wanted it" or victim-blaming or all that crap.* This is traditionally not a serious issue in medical procedures, and so the worries that come from extending consent or the mistaken belief in consent for sexual situations doesn't exist for medical procedures. Again, utterly reasonable in theory.

    And part of it is "The court was squicked and it made a very, very bad decision. Judges are human.", as localroger put it. Not so much on the reasonable.

    Those are the obvious ones, there are others that are based on statutory interpretation and the history of various acts, the intentions of Parliament, all that jazz. But philosophically, there is something there. I don't think it's enough, but in my mind the decision fall into the 'wrong' category, rather than the 'wtf' category.**

    *Not commenting on the effectiveness of the law, naturally.
    **Admittedly, I'm not part of the bdsm community and so this doesn't affect me, and that changes the import I put on this.

    posted by Lemurrhea at 8:10 PM on May 27, 2011 [1 favorite]


    I don't think sadomasochists are trying to piss on my Wheaties. I think that wanting to blur the boundaries between pain and pleasure is a legit desire, and one that most people have in some form; it's common to enjoy horror stories.

    The question of whether the boundaries between pleasure and pain start out blurred, or you blur them by testing them, is kind of philosophical. Anyway, it doesn't make a difference to the rest of my argument, back there.
    posted by LogicalDash at 8:23 PM on May 27, 2011


    Read the ruling.

    In convicting J.A. of sexual assault, the trial judge found that the complainant did not consent to being penetrated anally with a dildo.

    It was simply something they had discussed and it doesn't even say she had discussed having that happen while she was unconscious. She hadn't given consent to it - regardless of whether she was in a position to consent or not. That she had consented *in the past* did not mean she was consenting to it this time.

    From other articles I'd read, it sounds like there was a history of abuse. And having done something to cause someone fear of assault if they don't consent to sexual activity with you can be interpreted as sexual assault under Section 265-2-b of the Criminal Code.

    Section 273 (a) already provided for the interpretation of sexual assault if "the complainant is incapable of consenting to the activity". If you're asleep, you can't consent. 273 also says you have to take reasonable steps to make sure the person is consenting "at the time".

    It's also common for a survivor of sexual assault to do whatever she needs to do to manage after the assault. That might be continuing on with sexual relations, staying in the relationship or even attempting to reconcile. If a later altercation resulted in a call to police, she might have disclosed at that time because they asked questions that led her to disclose. It may have all come pouring out.

    Also, in Canada, if you disclose abuse to police, they can go ahead and press charges, regardless of whether the survivor asks them to do so. The woman in this situation may not have even initially pursued the courts.

    From what I understand, the law already said that you cannot commence sex with someone who is asleep. There have been previous cases about that. The issue, in this case, was whether, in discussing the mere idea of using the toy, the woman had given advance consent. But, as part of this, the courts worked out that any consent given - had that even happened - would have disappeared at the moment she was no longer capable of consenting.

    So it was already sexual assault to have sex with someone who was asleep. The issue here was complex. It was about whether merely talking about doing something they had done once before (and which she may not have liked) was consent for that to happen at a future time. It wasn't even that the woman said, "Hey, choke me to unconsciousness and then do that to me." And, if I understand it, she hadn't said, "Have sex with me when I am unconscious." It was that she consented to choking and knew she might become unconscious. And then the guy carried out an activity they had tried once before and discussed at some point - but that she had not said yes to. And the courts found that, had she even provided such consent, it would have been nullified by the lack of consciousness.

    If you read academic literature on marital rape, you will find that sexual assault in one's sleep is not infrequently cited.

    I am not a lawyer and this is just my interpretation of what I had read.
    posted by acoutu at 12:51 AM on May 28, 2011 [3 favorites]


    Well, my spouse is asleep and I'm pretty tired. I'm not chancing it. Little Johnny will have to remain an only child.
    posted by bystander at 8:33 AM on May 28, 2011


    Read the ruling.

    I really don't feel like it, but... There are a lot of contradictions here that I am curious to see sorted out. Depending on your reading of the facts, it would appear that either she was abused and finally found a way out, or she made a play for custody by lying to the police.

    I don't really care about the implications for the BDSM community. I am concerned with the legal system's ability to convict people who employ date rape drugs, and with the implications of rehashing past sexual encounters when establishing custody rights.
    posted by Chuckles at 11:46 AM on May 28, 2011 [1 favorite]


    Chuckles, in Canada, the court favours joint or shared custody unless "the court finds that shared parental responsibility would be detrimental to the child". However, they do find that abuse is considered detrimental.

    This woman may have been struggling to deal with what happened and then, when the discussion of separation ensued, her ex informed her he would seek sole custody. She may very well have feared for her child, given that this would mean she would only have a limited opportunity to see how her ex was parenting the child. It's also possible that, when she disclosed to police, they informed her of her legal rights and also told her that they can press charges without her.

    Also, during separation and divorce, a woman and her children are most likely to be assaulted by her partner. This may have heightened her fear and her counsellor, doctor, lawyer and other advocates may have pointed this out. Moreover, in talking to those people, she may have been better able to identify, discuss and validate her sexual trauma, outline her fears about her ex, and develop a safety plan for her and her child. That safety plan would very much be of concern if her ex had suddenly asked for sole custody - a controlling move, given the courts favour shared custody. I also didn't read anywhere that she was even moving for sole custody herself.

    Most survivors of sexual trauma struggle with validating what happened to them. Most never report to police, let alone press charges. That this woman was willing to take this all the way to the Supreme Court and be the only witness suggests that there was a great degree of certainty in the evidence and not that she'd just rehashed a past encounter.
    posted by acoutu at 12:06 PM on May 28, 2011 [1 favorite]


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