The sex is while unconscious, the consent is from the period of consciousness before unconsciousness.
This case, from Canada. From the Supreme Court, no less.
The man and the woman, according to the Supreme Court Judgement (available here) had sex and experimented with erotic asphixiation, which they had apparently done before. She had said that she knew she might go unconscious and didn’t mind, so she did and came around a few minutes later, they had sex. Two months later she “cries rape”, but later recants saying she lied about not consenting because she wanted to use the “rape” as a weapon in a custody case. She recanted, but he’s still going to jail because he admitted to humping her while she was unconscious.
That’s from the minority report in the court, a 6-3 decision. The facts aren’t in dispute in this case, and the facts are that he’s now going to prison for having sex with a consenting woman.
Now, I wouldn’t want to have sex with an unconscious woman, but he didn’t find an unconscious woman and rape her, he made her unconscious with her consent to both the unconsciousness and the sex and at her request (her request was for the throttling, knowing it may lead to unconsciousness).
What we have is a false allegation of rape, and the man falsely accused going to prison despite the recantation of his accuser.
Rape law requires an absence of non-consent rather than affirmative consent. Given that such an expression of non-consent is impossible when unconscious, the law includes being unable to give non-consent as an expression of non-consent.
Consent can also be revoked at any time - if a man is having consensual sex with a woman and she tells him in the middle to stop, continuing is rape. Once again, if the person is unconscious, the consent cannot be revoked. A person saying “you can do anything you want to me for the next year” does not have any legal standing as to consent.
But I don’t think that’s the same as a specific grant of consent to the continuation of a sex act during unconsciousness, which is what we have here. I mean, she couldn’t withdraw consent if she was tied and gagged, but S&M practitioners do that all the time and don’t get accused of rape. The fact is that she knew that their sex games might result in her becoming unconscious and granted consent for that eventuality accordingly, and specifically. I think that ought to be respected.
There’s also the issue of whether a rape prosecution ought to continue against the wishes of the alleged victim.
Actually S & M practitioners do get accused of rape and other crimes regularly. And safe signals etc are used to replace safewords when gagged - such as holding on to something and dropping it if wanting to withdraw consent.
But the bottom line is that the current legal system doesn’t require affirmative consent - it requires an absence of non-consent. Once in a position where you cannot express that non-consent, then any previous consent becomes legally moot.
I think it’s ridiculous. TMI time: one of my kinks involves being made love to while I sleep. Or at least, starting out that way. So I’ve given my SO clear instructions that if I’m sleeping and he’s in the mood, please do continue!
Now, I understand that this is a sticky legal situation. Certainly, I believe that consent can and should be revokable at any time. I don’t think it’s exactly a good idea to say that if you choke a person to unconsciousness, you can then have their way with them with no repercussions. I also don’t think it’s impossible for a person to rape their spouse - clearly it is possible, and it should be prosecuted like any other rape. But I also think it’s ridiculous to claim my SO is a rapist when I’ve *asked *him to touch me sexually when I’m asleep.
I don’t know the legal whatnots, but it sounds like this is a form of statutory rape, no? That is, it’s rape because the law says it’s rape, regardless of what the partners have consented to, the same way sex between a consenting 15 year old and their consenting 17 year old girl/boyfriend is rape in many states. I think that’s bullshit. I’m all for prosecuting forcible rape and date rape (which may be emotionally or situationally coercive, even if it doesn’t include brute force), but statutory rape pings my “get the law the fuck out of people’s bedrooms” meter.
And I think this woman is a lying scumbag, regardless of whether what her partner did was legally rape or not.
I understand the legality. She asked to be made unconscious and knew that sex would not stop once she was made unconscious. After she regained consciousness she continued to have consentual sex knowing what had happened while she was out.
Also according to the court so much as kissing your wife while she is asleep constitutes rape.
From a legal standpoint I get it, but from a standpoint of justice the law sound wrong to me.
It sounds absolutely right to me. I think it’s asinine to argue that sex with an unconscious person can be anything but rape (and don’t give me a bunch of horsehit about kissing somebody while they’re asleep. That’s a much different situation).
It’s not my kink, but if a person wants someone to have sex with them while they are unconscious it shouldn’t be illegal. It does seem to have been this woman’s kink.
And the kissing thing is relevant, it’s in the decision.
And the kissing thing is a bullshit, slippery slope red herring. The chances of something like that ever prosecuted are zero. The chances of it ever even being complained about are all butnon-existent.
The kissing thing is an explicit example in the decision. It is not a slippery slope red herring. The defense argued that the principle of consent being argued for by the Crown led to the ridiculous result that kissing a sleeping spouse constitutes sexual assault. The Supreme Court said yes, it does, but that’s what Parliament’s definition of consent leads to, and it’s not so ridiculous. I linked the decision and specified the relevant paragraphs in the Pit thread.
Clearly, it’s not just. You simply need to keep in mind that Western case law regarding rape tends to be based on hysteria rather than rationality, justice, or even common sense. This Canadian decision seems to be as moronic as that infamous US miscarriage of justice, Michael M. v. Superior Court of Sonoma County.
This is an asinine comparison. Being taken off life support is simply declning to accept medical care, not assenting to being killed.
If someone says they want to be killed and eaten, should it be legal to kill and eat them?
