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Old 05-27-2011, 11:37 AM   #1
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No consent in unconscious sex case

This case has been big news in Canada over the last couple of years. Today, the Supreme Court made a ruling largely down gender lines (all four female justices + 2 males) reinstating the initial conviction.

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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.”
No consent in unconscious sex case, Supreme Court rules - The Globe and Mail
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Old 05-27-2011, 03:10 PM   #2
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This couple's idea of "favourite sexual practice" is so creepy I found it hard to keep reading all the way through. I understand how it happens that someone whose own consciousness is altered by drugs or alcohol might continue to see their now-passed-out-drunk partner as a tempting sexual opportunity (rightful illegality aside), but what the hell kind of sober person WANTS to choke their partner unconscious then f* them? And what the hell kind of sober person WANTS their partner to choke them unconscious then f* them?

Anyway, glad the court found it inherently nonconsensual...

I thought at first this was somehow going to be about that case in NYC involving the cop and the drunk woman.
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Old 05-27-2011, 04:04 PM   #3
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There are so many things wrong with this couple and so many angles to approach this case from, my wheels have been spinning since I read it this morning. All other thoughts aside, I can boil my opinion down to:
"Don't have sex with crazy people, and if you aren't certain about their craziness level, don't have sex with them."



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Old 05-27-2011, 07:05 PM   #4
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Among J.A.’s 23 previous criminal convictions are three for domestic violence – including twice against his current partner.
This bit would be a red flag for me....
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Old 05-27-2011, 08:25 PM   #5
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YouTube - ‪Louis C.K. Rough Sex‬‏
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Old 05-28-2011, 01:48 AM   #6
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hahaha, that's exactly what came to my mind as well
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Old 05-28-2011, 01:41 PM   #7
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Originally Posted by anitram View Post
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.
This is key. How anyone in their right mind can feel comfortable enough to engage in sexual activity with an unconscious person, even with prior 'consent' (consent for what?), is beyond me.
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Old 05-28-2011, 07:43 PM   #8
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Originally Posted by indra View Post
This bit would be a red flag for me....
You mean with regard to consent? I wondered about that too, but after skimming several articles about the case, I didn't get the impression that any of the officers or lawyers involved at any point ever considered her consent to the 'erotic asphyxiation' to be in question. (I assume if they had thought that, that the case against him would've looked quite different.) She described the choking as something they felt "spiced up" their sex lives (her words), and brought up this particular incident only in passing when making a subsequent complaint about an unrelated altercation; I guess as another example of his going over the line (in that she hadn't consented to what specifically happened while she was out).

Still find it hard to think about. But I can see why the ruling is of broader interest with regard to sexual assault cases where the alleged victim was too drunk or high to consent at the time the assault occurred.
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Old 05-28-2011, 08:40 PM   #9
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Originally Posted by yolland View Post
You mean with regard to consent? I wondered about that too, but after skimming several articles about the case, I didn't get the impression that any of the officers or lawyers involved at any point ever considered her consent to the 'erotic asphyxiation' to be in question. (I assume if they had thought that, that the case against him would've looked quite different.) She described the choking as something they felt "spiced up" their sex lives (her words), and brought up this particular incident only in passing when making a subsequent complaint about an unrelated altercation; I guess as another example of his going over the line (in that she hadn't consented to what specifically happened while she was out).

Still find it hard to think about. But I can see why the ruling is of broader interest with regard to sexual assault cases where the alleged victim was too drunk or high to consent at the time the assault occurred.
To the relationship at all (on her part). My comment wasn't in regard to the case.

The guy had 23 criminal convictions, including two domestic violence ones on her. Geez, lady, get a shred of self respect and ditch the loser.
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Old 05-28-2011, 10:06 PM   #10
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Ah, gotcha. Well, not that it's an original insight, but people who're attracted to abusive and/or otherwise criminal people are often pretty f*ed up and lacking in respect for both themselves and others to begin with. No way to know for sure if that's the case here, granted.
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Old 05-28-2011, 11:41 PM   #11
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FWIW:

Quote:
The erotic interest in asphyxiation is classified as a paraphilia in the Diagnostic and Statistical Manual of the American Psychiatric Association. Psychiatrist Joseph Merlino stated that it meets the criteria for a disorder "because it has the potential for lethality or serious injury."[1]

Erotic asphyxiation - Wikipedia, the free encyclopedia
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Old 05-29-2011, 05:12 AM   #12
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"in case she's into that kinda shit"

is this the same guy that played nice cop Dave in Parks & Rec?
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Old 05-29-2011, 11:08 AM   #13
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I must not be understanding this case. This adult woman and her adult partner decide that he would choke her out and then have sex with her (which is weird as hell) and then after the fact she presses charges and he gets charged with rape? How does that work?
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Old 05-29-2011, 12:08 PM   #14
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Originally Posted by Dalton View Post
I must not be understanding this case. This adult woman and her adult partner decide that he would choke her out and then have sex with her (which is weird as hell) and then after the fact she presses charges and he gets charged with rape? How does that work?
Not quite.

She claims that she had consented to him having sex with her while she is unconscious but she did not consent to him putting a dildo up her ass. She woke up with her hands bound and the dildo and that was what she made the complaint about.

Also he was charged with sexual assault, not rape.
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Old 05-29-2011, 03:22 PM   #15
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But according to the ruling, even if he didn't put a dildo up her ass, it would still be sexual assault regardless of her saying it was ok to do it right before she passed out.

Way to ruin erotic asphyxiation for all of us, supreme court!
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