It might not be everybody's idea of sexual foreplay, but for an Ottawa man and his live-in partner, being bound and choked into unconsciousness was a favoured way of life.
The couple have an eight-year relationship, and are parents of a two-and-a-half-year-old son.
However, things went too far during one of the couple's asphyxial trysts in early 2007. Several weeks afterward, the woman reported to police that, while she had been out cold, her partner used a dildo to violate her.
The boyfriend was charged and convicted of sexual assault.
In late March, however, his conviction was overturned by the Ontario Court of Appeal in a 2-1 ruling, which may set up one of the more bizarre hearings the Supreme Court of Canada has hosted in recent years.
Assuming that the Ontario Crown appeals - and most observers believe that this will happen - the nine-judge bench will depart from its usual dry fare to decide whether an unconscious person can consent in advance to supplying sexual gratification for others.
The stakes go beyond the rights of a few kinky-sex enthusiasts.
Consent ends when the active, independent, operating will ceases. Justice Harry Laforme
The Court of Appeal ruling sent a shudder through the ranks of feminist legal scholars, who see it as a serious erosion of a requirement that consent to sexual activity be revocable at any time.
They fear that it will 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.
University of Ottawa law professor Elizabeth Sheehy, an expert in sexual assault, said the ruling creates a sexual playground where inert bodies can be used for sexual purposes on the basis that consent was granted at some earlier date. "You are basically saying: 'I'm your sex slave. You can have sex with me when I'm not there,' " Prof. Sheehy said.
But there is another side.
Lorne Goldstein and Howard Krongold, the two Ottawa lawyers who represented the 43-year-old defendant (who can be identified only by the initials J.A. because of a publication ban), argue that sexual freedom lies at the heart of the case.
"It affirms that we should all be free to exercise control over our own bodies," Mr. Krongold said.
In the original decision, the presiding Judge Dianne Nicholas, of the Ontario Court, had said: "It is my belief that the reasonable man would conclude that choking someone to the point of unconsciousness does interfere with that person's 'health or comfort,' and can, in some cases, endanger life."
But Mr. Krongold said, after the Court of Appeal ruling, "The facts here were unusual, but the principle applies to us all. The state's reach should not extend into the most intimate sphere of Canadians' lives when no one is being harmed."
The defence lawyers also stressed the fact that the complainant approached the police only after a domestic squabble. She later recanted, which they claim ought to have ended the matter.
To the Crown, however, a recantation is a red flag signalling that a woman has been pressured to drop her allegations.
The Court of Appeal majority reasoned that an individual who consents to being sexually manipulated once unconscious has exercised "personal autonomy." The majority noted 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."
Writing in dissent, Mr. Justice Harry Laforme countered that the complainant's consent was negated the moment that she passed out.
"Consent ends when the active, independent, operating will ceases," he said.
The Court of Appeal majority also compared consenting to future sexual activity as being roughly equivalent to a patient who consents to surgery, knowing that it will be conducted while she under anesthetic.
"That is a totally inappropriate analogy," Prof. Sheehy said. "Consent to surgery, which is to occur when they are unconscious, is a one-time consent to a very specific procedure. No one gives a free-floating consent to be operated on any time, anywhere, with respect to any kind of surgery.
"It's a very poor analogy that doesn't even come close to what we are talking about," she said.
Mr. Goldstein applauded the ruling for reversing a legal system that has "infantilized women." He said its main beneficiaries will be couples who agree that sex may take place while one of them is asleep.
"The ruling says that where a fully informed, conscious, sober woman decides she is open to certain acts, the law cannot step in and tell her, as it would a child: 'No, you may not consent,' " Mr. Goldstein said.
"You don't have to, now, wake the person up, wait until she is fully awake, and then ensure that a list of permitted and prohibited acts are discussed. You can cuddle up next to your loved one without fear that, if you have a fight the next day, she is going to charge you with sexual assault."
But Prof. Sheehy said sexual activity is the product of an ongoing, consensual relationship. "The question is, are we really prepared to say that people can consent to having their bodies used in those ways?" she said. "I think it degrades our humanity."
Kirk Makin is the Globe and Mail's justice reporter.Report Typo/Error