Canada: Court ponders whether unconscious means 'no'

Can you consent to sex when you're voluntarily choked unconscious?


The Supreme Court of Canada on Monday will consider whether an Ottawa woman, who had admittedly kinky sex with her longtime partner, was a victim of sexual assault when he sodomized her against her will while she was passed out, even though she had agreed to asphyxiation.


The case, which will test the sexual autonomy of couples behind closed doors, centres on whether a person can give "advance" consent to sex, a prospect that a leading women's group says would roll back Canada's sex-assault laws about 20 years.


"A vital part of the meaning of consent is the right to say 'no' at any point," said Joanna Birenbaum, legal director of the Women's Legal Education and Action Fund. "Any change in law to recognize 'advance' consent would be dangerous and regressive."


The Ontario Crown is bringing the appeal to the Supreme Court after the province's appeal court ruled earlier this year that a man, identified only as J.A., was not committing sexual assault when he and his on-again, off-again partner of seven years engaged in "erotic asphyxiation" one night in May 2007.


"To hold otherwise would be to deprive individuals of their personal autonomy by limiting their ability to make choices about who can touch their body and in what circumstances," said the majority decision.


The case reaches the Supreme Court more than a decade after it ruled that there is no such thing as implied consent.


In written legal arguments, J.A.'s lawyer invokes the words of former prime minister Pierre Trudeau, who in 1968 famously declared that "there's no place for the state in the bedrooms of the nation ... what is done in private between adults doesn't concern the Criminal Code."


The woman took her complaint to Ottawa police two months after the alleged assault, when she was seeking custody of the couple's toddler.


At trial, she testified that she agreed to be choked unconscious to "spice up" their sex life. After being knocked out for about three minutes, she came to and discovered J.A. had inserted a dildo in her anus, an act she said she had not agreed to in advance. She later recanted her testimony.


J.A. was originally sentenced to 18 months after an Ottawa judge said it was against the law to have sex with an unconscious person.


Restoring his conviction would effectively render "every touching of a sexual nature that occurs while a person is sleeping or unconscious a criminal act, notwithstanding the consent of the supposed victim," J.A.'s lawyer, Howard Krongold, argues in his court submission.


"If consent to any form of sexual touching while unconscious is invalidated, it would constitute a sexual assault to arouse one's intimate long-term partner with sexual touching, or even a kiss, even if the partner enthusiastically agreed to it," he wrote. Krongold, by way of analogy, says that a person can consent in advance to surgery that is to occur while unconscious.


The Ontario Crown, however, argues that the two scenarios are not alike, and in this case unconsciousness negates a person's ability to consent.

(To read original article, visit this Ottawa Citizen link.)

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