Top court peeks into bedrooms of the nation with sexual-consent case
A view of the Supreme Court of Canada in Ottawa.
The Ottawa Citizen OTTAWA —
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, J.D., 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." K.D. 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 Supreme 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, says there is no relationship between the two scenarios. "The performance of the act of the surgery is for the benefit of the patient, not the physician," says a written submission from Crown lawyer Christine Bartlett-Hughes.
"Moreover, the surgery cannot usually be performed without rendering the patient unconscious." The Crown argues that unconsciousness negates a person's ability to consent. The same conclusion was reached by the lone dissenting judge in the Ontario Court of Appeal, Harry LaForme, who concluded:
"There simply is no active operating will while an individual is asleep or unconscious." The Crown also says that siding with J.A. will "widen the potential for sexual exploitation of women" because those who are sexually assaulted while unconscious, such as those who pass out from drunkenness, "will have to prove beyond a reasonable doubt that they did not consent in advance to the specific sexual acts perpetrated."
The Legal Education and Action Fund, an intervener in the case, takes the argument a step further, writing in a court submission that the outcome could impact the legal rights of any woman who is rendered incapable for whatever reason — "through sleep, medication, voluntary or involuntary intoxication, accident, illness or disability."