# Canuck Supreme Court/Do not fondle your sleeping wife's boobs **URL:** \ **Category:** The BBQ Pit\ **Created:** [May 27, 2011, 5:01pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446 "2011-05-27T17:01:13Z")\ **Posts on this page:** 13\ **Page:** 12
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [May 30, 2011, 8:42pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/221 "2011-05-30T20:42:14Z")
> [@Boyo\_Jim](#): > > From what we know of the facts, this would not change whether the guy in the OP could be convicted, unless I missed the victim claiming that consent was given. The victim did give consent for sex, in the event that she became unconscious, to continue. Not to the insertion of the dildo, but the court doesn’t seem to have noticed that either. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [May 30, 2011, 8:44pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/222 "2011-05-30T20:44:53Z")
> [@D\_Odds](#): > > I also think the question is exactly what are you consenting to? If you consent to let your partner get started having sex while you are unconscious, does that include sticking a dildo up your ass? What if you don’t regularly have anal sex? What if you tried it once, didn’t like it, but it turned on your partner and he wanted to do it again and chose to do so while you couldn’t complain? If my partner isn’t sure I’ve consented to it, they shouldn’t be doing it. The thing is, the only situations I can imagine this happening in are where there’s been prior discussion about what is or isn’t acceptable - that’s pretty much par for the course in BDSM. If someone’s told their partner they don’t want anal sex, to render them unconscious and anally penetrate them is rape. If someone specifically tells their partner to choke them out and anally penetrate them, it’s sex. > [@](#): > > The Supreme Court’s interpretation of the law, IMO, does go too far towards requiring active consent. But consenting to sexual intercourse before incapacitation does not nor should it imply consent to anal intercourse or any other of a variety of kinks. If one is going to take advantage of an unconscious partner, then one should be very very very certain as to what is consented to, and anything else is strictly off limits. Absolutely. I’ll note again, however, that the (later withdrawn) rape complaint that started this thread was not for the anal dildo penetration, it was for later sex whilst she was fully conscious. There’s no actual reason to believe she didn’t consent to it. I just want to clarify something else here. It seems that you are assuming that he choking and anal penetration here were for the benefit of the guy doing it. That may be the case, but it’s equally possible, if not more likely, that it was for the pleasure of the recipient. That’s another thing that is often the case with BDSM - the Dom’s actions are for the pleasure of the sub, not primarily their own. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [May 30, 2011, 9:08pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/223 "2011-05-30T21:08:17Z")
> [@blindboyard](#): > > The victim did give consent for sex, in the event that she became unconscious, to continue. Not to the insertion of the dildo, but the court doesn’t seem to have noticed that either. Not that I can see. According to the OP link and the full Supreme Court ruling, the victim consented to the choking but did not consent to the sexual acts which followed. Here is the relevant part of the text from the OP link: > [@](#): > > Several weeks later, the woman reported to police that her partner had inserted a dildo into her anus while she had been out cold. She said she had not consented to the sexual act, but later recanted the allegation. This is from the Court ruling: > [@](#): > > K.D. made a complaint to the police two months later and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred. ---
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [May 30, 2011, 9:31pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/224 "2011-05-30T21:31:41Z")
> [@Boyo\_Jim](#): > > This is from the Court ruling: That’s followed by > [@](#): > > She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son. As the only claim to the contrary had been revoked, I take that as consent having been given. The dissent also says of the facts of the case: > [@](#): > > It is a fundamental principle of the law governing sexual assault in Canada that no means “no” and only yes means “yes”. In this case, K.D. said yes, not no. She engaged with J.A. in sexual activity to which she had freely consented in advance, while conscious. To convict J.A. of sexual assault in these circumstances is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy. And it is wrong on the facts of this case. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 30, 2011, 9:59pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/225 "2011-05-30T21:59:06Z")
Recantations are commonplace for DV victims. It means nothing. There is no convincing evidence of prior consent here - not that it matters. ---
**Author:** ![Gleena](https://avatars.discourse-cdn.com/v4/letter/g/b3f665/32.png) [@Gleena](https://boards.straightdope.com/u/Gleena)\ **Post date:** [May 30, 2011, 11:05pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/226 "2011-05-30T23:05:27Z")
> [@Muffin](#): > > I wish I had Dio’s expert opinion the last time I did a sleeping beauty trial. > > No, actually, that’s not true. I really wouldn’t want to have his expert opinion, because he is no expert, and his opinion is utter rubbish with respect to Canadian law. > > Our law ([_Criminal Code of Canada_](http://laws-lois.justice.gc.ca/eng/acts/C-46/) s. 265) … Thank you! You said exactly what I was trying to say, only about 1000 times better. Read my law assignments for me? Please? 🙂 ---
**Author:** ![D\_Odds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/d_odds/32/2882_2.png) [@D\_Odds](https://boards.straightdope.com/u/D_Odds)\ **Post date:** [May 30, 2011, 11:22pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/227 "2011-05-30T23:22:16Z")
> [@Steophan](#): > > If my partner isn’t sure I’ve consented to it, they shouldn’t be doing it. The thing is, the only situations I can imagine this happening in are where there’s been prior discussion about what is or isn’t acceptable - that’s pretty much par for the course in BDSM. If someone’s told their partner they don’t want anal sex, to render them unconscious and anally penetrate them is rape. If someone specifically tells their partner to choke them out and anally penetrate them, it’s sex. Considering the train wreck of a relationship this already was, we can’t assume that they followed typical standards and practices of healthy BDSM relationships. Perhaps the guy with nearly 2 dozen convictions, including 3 for domestic abuse, got his shit together when practicing BDSM with his partner (who was the victim for 2 of the abuse convictions), but I’m going to go out on a limb and guess that he doesn’t think that far in advance. I’m going out on another limb here because the victim’s testimony indicated either she had not ever had any type of anal intercourse (which is what the initial court believed) or she had tried it just once. I believe it was for the benefit of the DOM. Purely supposition on my part, but I’d put even money the wife engaged in this just show she wouldn’t “lose” her man, not because she is truly a SUB. I’ll also note that the initial court’s ruling were that she gave consent to sex, but not anal penetration, which is why the conviction was only for the anal penetration. The intermediate court said consent was implied, but the Supreme Court said not only that consent wasn’t implied, but that she could not have consented to any sex. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [May 30, 2011, 11:34pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/228 "2011-05-30T23:34:23Z")
> [@blindboyard](#): > > That’s followed by > > As the only claim to the contrary had been revoked, I take that as consent having been given. > > The dissent also says of the facts of the case: She recanted her claim. That is not even close to admitting she gave consent to what he did while she was unconscious. It is equally or more likely to be a claim that the incident never even happened, or that at least some parts of it were invented. The quote from the dissent was ambiguous. Here is a more complete summary of the victim’s claim, and her subsequent revised statement, That’s followed by As the only claim to the contrary had been revoked, I take that as consent having been given. The dissent also says of the facts of the case: [/QUOTE] She recanted her claim. That is not even close to admitting she gave consent to what he did while she was unconscious. It is equally or more likely to be a claim that the incident never even happened, or that at least some parts of it were invented. The quote from the dissent was ambiguous. The only unambiguous and explicit claim regarding the incident was what she said first, that she did not consent to the sex acts he performed after she was unconscious. [URL=“http://scc.lexum.org/en/2011/2011scc28/2011scc28.html”]taken from the court record: > [@](#): > > [4] On May 22, 2007, the respondent J.A. and his long-time partner K.D. spent an evening together at home. While watching a movie on the couch, they started to kiss and engage in foreplay. After some time, they went upstairs to their bedroom and became more intimate. They both undressed, and started kissing on the bed. > > [5] While K.D. was lying on her back, J.A. placed his hands around her throat and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for “less than three minutes.” She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before. > > [6] When K.D. regained consciousness, she was on her knees at the edge of the bed with her hands tied behind her back, and J.A. was inserting a dildo into her anus. K.D. gave conflicting testimony about whether this was the first time J.A. had inserted a dildo into her anus. During her examination in chief, she stated that this was a first, and initially maintained this answer during cross-examination by defence counsel: > > [Mr. Goldstein]: In terms of having what you referred to as a dildo inserted — you had said in your butt, is that something that had happened before? > > [K.D.]: No, we hadn’t done that. We discussed the possibility of it. At the moment I just went with it in the spirit of experimentation. > > [7] However, when confronted with the transcript of her testimony at J.A.’s bail hearing, K.D. changed her answer: > > [K.D.]: … we had tried it one time prior. > > [Mr.Goldstein]: Okay… . > > [K.D.]: Somewhat of a drunken evening a while ago. I do apologize. > > ``` > K.D. testified that J.A. removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse. When they had finished, J.A. cut K.D.’s hands loose. > > ``` > > [9] K.D. made a complaint to the police on July 11. In a videotaped statement, she told the police that she had not consented to the sexual activity that had occurred. She later recanted her allegation, and claimed that she made a false complaint to the police because J.A. had threatened to seek sole custody of their two-year old son. J.A. was charged with aggravated assault, sexual assault, attempting to render the complainant unconscious in order to sexually assault her, and with breaching his probation order. She does not claim she gave consent to the use of a dildo at the time. She does say they discussed it. She also makes this more ambiguous statement: > [@](#): > > At the moment I just went with it in the spirit of experimentation. While it’s possible she said that in advance, it’s also possible she meant it as an explanation why why she didn’t make an immediate claim to the police. IOW, she decided to tolerate it once she woke up. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [May 30, 2011, 11:42pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/229 "2011-05-30T23:42:51Z")
> [@D\_Odds](#): > > Considering the train wreck of a relationship this already was, we can’t assume that they followed typical standards and practices of healthy BDSM relationships. Perhaps the guy with nearly 2 dozen convictions, including 3 for domestic abuse, got his shit together when practicing BDSM with his partner (who was the victim for 2 of the abuse convictions), but I’m going to go out on a limb and guess that he doesn’t think that far in advance. > > I’m going out on another limb here because the victim’s testimony indicated either she had not ever had any type of anal intercourse (which is what the initial court believed) or she had tried it just once. I believe it was for the benefit of the DOM. Purely supposition on my part, but I’d put even money the wife engaged in this just show she wouldn’t “lose” her man, not because she is truly a SUB. > > I’ll also note that the initial court’s ruling were that she gave consent to sex, but not anal penetration, which is why the conviction was only for the anal penetration. The intermediate court said consent was implied, but the Supreme Court said not only that consent wasn’t implied, but that she could not have consented to any sex. I’m starting to change my mind about this particular case. Thanks for filling in the gaps. If the relationship is as you’ve described that’s not a Dom/sub relationship, but an abusive one. If there was rape, the guy should be in prison. I do find a rape conviction where the victim claims it didn’t happen, or that it was consensual, problematic though. One problem with this thread has been the back-and-forth between the original case, and a number of hypothetical cases that the particular ruling will affect. **Dio** , who most of my posts have been in response to, seems to have a problem with following this, and also with the idea of consensual BDSM. I stand by the view that this activity between consenting adults is fine. ---
**Author:** ![D\_Odds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/d_odds/32/2882_2.png) [@D\_Odds](https://boards.straightdope.com/u/D_Odds)\ **Post date:** [May 31, 2011, 12:04am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/230 "2011-05-31T00:04:21Z")
> [@Steophan](#): > > **Dio** , who most of my posts have been in response to… There’s your mistake. No good ever comes of that. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [May 31, 2011, 12:07am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/231 "2011-05-31T00:07:42Z")
> [@D\_Odds](#): > > There’s your mistake. No good ever comes of that. Yes, yes I know. ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [May 31, 2011, 2:52am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/232 "2011-05-31T02:52:14Z")
Scroll down to [Rhymes With Witch](http://www.somethingpositive.net/). ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [May 31, 2011, 1:10pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/233 "2011-05-31T13:10:25Z")
> [@Diogenes\_the\_Cynic](#): > > Is the remedy to legalize anal penetration of unconscious, asphyxiation victims? Don’t be ass. [Previous page](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446.md?page=11)