"[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)*Side-effect of universal health care: gov't doesn't like having to pay for treatment ;)
"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]
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.
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.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.
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.
[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.
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Who hasn't falen asleep during sex?
posted by cjorgensen at 12:47 PM on May 27, 2011 [5 favorites]