Someone who is unconscious cannot consent in advance to supplying sexual gratification to others, the Supreme Court ruled Friday.
The case – closely watched by feminists and legal scholars – involved an Ottawa man and his live-in partner of nine years.
In a split 6-3 decision, the court restored the man’s conviction for sexual assault.
The definition of consent “requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance,” Chief Justice Beverley McLachlin wrote for the majority.
For the couple, being bound and choked into unconsciousness had been a favourite practice. However, things went too far in early 2007. Several weeks after a night of sexual activity, 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 based on evidence that, while her hands were tied behind her back and she was unconscious, a dildo had been inserted into the woman's anus.
She testified that she had agreed to being choked, which led to her losing consciousness during intercourse.
“Her evidence that she consented to it – or was okay with it – when she regained consciousness has no bearing,” Ontario Court Judge Dianne Nicholas concluded. “There is no implied consent to sexual activity. It is a criminal activity to engage in sexual activity with a person who is unconscious.”
Judge Nicholas 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.
J.A. 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 his current partner. 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 under anesthetic.
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.
Feminists and legal scholars saw the case as a serious erosion of a requirement that consent to sexual activity be revocable at any time.
They feared that it 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.
University of Ottawa law professor Elizabeth Sheehy, an expert in sexual assault, said the ruling created 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,'“ Prof. Sheehy said. “You can have sex with me when I'm not there.'“
However, defence counsel Lorne Goldstein and Howard Krongold, who represented the 43-year-old defendant, 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.
The defence 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 signalling that a woman has been pressured to drop her allegations.
“Sexual activity is the product of an ongoing, consensual relationship, Prof. Sheehy said. “The question is, are we really prepared to say that people can consent to having their bodies used in those ways? I think it degrades our humanity.”
