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The Supreme Court of Canada in is shown on October 7, 2010. (Adrian Wyld/THE CANADIAN PRESS)
The Supreme Court of Canada in is shown on October 7, 2010. (Adrian Wyld/THE CANADIAN PRESS)

No consent in unconscious sex case, Supreme Court rules Add to ...

People cannot consent in advance to sexual activity that takes place while they are unconscious, the Supreme Court ruled Friday.

The closely watched case involved an Ottawa man and his live-in partner of nine years who engaged in erotic asphyxiation.

In a split 6-3 decision issued Friday, the court restored the man's conviction for sexual assault for performing a sex act on his girlfriend while she was unconscious.

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"Parliament's definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious," Chief Justice Beverley McLachlin wrote for the majority.

"The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point."

The decision protects women vulnerable to sexual assault, such as those rendered unconscious due to alcohol use or disability, said Joanna Birenbaum, director of litigation for the Women's Legal Education and Action Fund, which intervened in the case.

"The decision confirmed what is already clear in the Criminal Code and what, in our view, should be common sense - which is that when a woman is unconscious, she's not sexually available," she said.

However, lawyer Lorne Goldstein, who represented the defendant, expressed concern about the possible legal ramifications of the decision. A husband who kisses his sleeping wife, he argued, would technically be a sex offender.

"If the law allows for that kind of activity to be deemed criminal activity, then there's something wrong," he said.

For the Ottawa couple, things went too far in May, 2007. Several weeks later, the woman reported to police that her partner had inserted a dildo into her anus while she had been out cold. She said she had not consented to the sexual act, but later recanted the allegation.

The boyfriend was charged and convicted of sexual assault.

The trial judge sentenced the defendant - a career criminal identified only as J.A. - to 18 months in jail. She said that he was dangerous, incorrigible and presented a continuing threat to his partner and their young son. The man was also ordered to see his son only under supervised access.

Among J.A.'s 23 previous criminal convictions are three for domestic violence - including twice against the woman in the case, who is identified as K.D. In one of these assaults, he kicked in her door, attempted to hit her with a wine bottle and called her a "whore, bitch, skank."

His conviction was later overturned by the Ontario Court of Appeal in a 2-1 ruling.

The majority reasoned that an individual who consents to being sexually manipulated once unconscious has exercised "personal autonomy," and that the possibility of withdrawing consent does not exist once one slips into unconsciousness.

"The only state of mind ever experienced by the person is that of consent," the majority said, comparing consenting to future sexual activity as being roughly equivalent to a patient who consents to surgery, knowing that it will be conducted while she is under anesthetic.

Feminists and legal scholars feared the case could open the door to accused rapists claiming to have mistakenly believed a complainant agreed to sex before falling asleep or being rendered unconscious by alcohol or drugs.

However, Mr. Goldstein and colleague Howard Krongold argued that sexual freedom lay at the heart of the case. They said that it stood for the notion that individuals can exercise free control over their bodies.

They also stressed the fact that the complainant approached the police only after a domestic squabble. She later recanted, which they claimed ought to have ended the matter. To the Crown, however, a recantation is a red flag often signalling that a woman has been pressured to drop her allegations.

Read the full Supreme Court decision.

 

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