# 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:** 20\ **Page:** 8
**Author:** ![VinylTurnip](https://avatars.discourse-cdn.com/v4/letter/v/b2d939/32.png) [@VinylTurnip](https://boards.straightdope.com/u/VinylTurnip)\ **Post date:** [May 29, 2011, 4:44pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/141 "2011-05-29T16:44:55Z")
> [@Paranoid\_Randroid](#): > > If I felt that this place were simply overrun with sociopathic rape apologists, I would leave faster than someone could caution me not to let the door hit my ass on the way out. What does it say about you that you prefer to stay? With enough persistence, he might one day convince us that _he’s_ just fine---- _we’re_ the ones with the ugly pig faces! ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 29, 2011, 5:48pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/142 "2011-05-29T17:48:12Z")
> [@Diogenes\_the\_Cynic](#): > > The hell it isn’t. Anyone who wants to strangle a person into unconsciousness and then ass rape them is disturbing. I’d agree, but that’s not what we’re discussing. We’re discussing the implications of the ruling for people who say “yes, I would LOVE it if you would choke me unconscious and then fuck me in the ass.” ---
**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 29, 2011, 5:49pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/143 "2011-05-29T17:49:28Z")
What if someone says they would love to be burned alive? ETA the victim in this case did not ask to be fucked in the ass, nor can an unconscious person consent to anything anyway. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [May 29, 2011, 5:57pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/144 "2011-05-29T17:57:56Z")
It seems that she obviously complained about the probing least there be no case, so apparently, that particular act was not within the activities she consented to. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 29, 2011, 5:59pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/145 "2011-05-29T17:59:31Z")
> [@Diogenes\_the\_Cynic](#): > > What if someone says they would love to be burned alive? Frankly, as long as they’re not mentally ill, I don’t care. There’s obviously a spectrum where you’d want greater diligence in some cases–“voluntarily being rendered unconscious” is similar to a great many activities we already allow consent to (as mentioned before, boxing and other martial arts sports), and I don’t honestly see much of a distinction between that and erotic play. > [@](#): > > ETA the victim in this case did not ask to be fucked in the ass, nor can an unconscious person consent to anything anyway. We’re not discussing the victim in this case, we are discussing the implications of this ruling on people who ARE doing these things with prior consent agreements. ---
**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 29, 2011, 10:24pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/146 "2011-05-29T22:24:44Z")
> [@MichaelEmouse](#): > > I don’t think we have the same conception of what witnesses can get away with. > > If the defendant testifies on his own behalf (which in such a situation is nearly always the only way he’d be able ot present evidence) he has to answer questions. He can’t just shut up. You have a right to silence in Canada and cannot be compelled to tesfify against yourself _except_ if you testify. Then you’re fair game. Otherwise, defendants could say any bullshit they wanted on the stand and the DA couldn’t contradict them. > > If you’re subpoenaed, you don’t get away with answering all relevant questions “I don’t recall”, that would be rather too easy a way for a witness to avoid testifying. Let’s ignore the defendant. He won’t testify at all, unless his attorney is completely and totally incompetent. What the prosecutor would be dealing with is an uncooperative witness to a crime with no other witnesses. No witness has to testify, and a DA will not really want to put an uncooperative witness on the stand if that all he has to go on. Just to ensure we are discussing the same issue, a poster claimed that a third party overhearing that he had kissed his wife after she fell asleep would be grounds for arrest and possible conviction. You and others are trying to do gymnastics to make a case where this could really happen. I’m saying that even though technically illegal, without the “molested” party actively testifying against the “molestor”, it is an **impossible** case to pursue and win. The testimony of the third party would be considered hearsay, and assuming that the molested party does not want to see his or her spouse incarcerated, they would work in concert against the prosecution. Just how do you propose a prosecutor get witness testimony? It is a phantom fear of the same type of man who lives in fear of a sexual partner “crying rape” on him. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [May 29, 2011, 11:13pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/147 "2011-05-29T23:13:20Z")
> [@D\_Odds](#): > > You and others are trying to do gymnastics to make a case where this could really happen. No, you and others are trying to do gymnastics to say that is our argument. It doesn’t matter that the chance of the law being enforced is nil, it is still illegal to kiss your partner while asleep. I hope you use this same argument about gay people trying to get sodomy laws removed from the books. IMHO, stupid laws shouldn’t exist because they weaken the perception that the justice system is run by competent people. And if it is okay to ignore one of the laws how about any others I feel don’t pertain to me, too? ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [May 29, 2011, 11:20pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/148 "2011-05-29T23:20:23Z")
Re. Sleep. I once had to wake a guy who was to replace me on watch. After shaking him repeatedly, I eventually had to drag him outside the tent (didn’t wake him even though the outside temp was below -30C), dump him out of his sleeping bag and shove his face in the snow. I’ve know other people who you could march a band through their bedroom before they’d wake up. Dio, are you saying that intercourse with such a person is perfectly okay if they have given consent beforehand? They may not wake up during the act at all! What the hell is your definition of sleep? Is it not a lack of consciousness? ---
**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 29, 2011, 11:27pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/149 "2011-05-29T23:27:21Z")
> [@D\_Odds](#): > > Let’s ignore the defendant. He won’t testify at all, unless his attorney is completely and totally incompetent. > > What the prosecutor would be dealing with is an uncooperative witness to a crime with no other witnesses. No witness has to testify, and a DA will not really want to put an uncooperative witness on the stand if that all he has to go on. > > Just to ensure we are discussing the same issue, a poster claimed that a third party overhearing that he had kissed his wife after she fell asleep would be grounds for arrest and possible conviction. You and others are trying to do gymnastics to make a case where this could really happen. I’m saying that even though technically illegal, without the “molested” party actively testifying against the “molestor”, it is an **impossible** case to pursue and win. The testimony of the third party would be considered hearsay, and assuming that the molested party does not want to see his or her spouse incarcerated, they would work in concert against the prosecution. Just how do you propose a prosecutor get witness testimony? > … So what you’re saying there is no case if the victim/witness either refuses to answer questions on the witness stand (and is cited for contempt), or commits perjury in answering them. Well, I can’t argue with that. ---
**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 29, 2011, 11:36pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/150 "2011-05-29T23:36:06Z")
> [@Uzi](#): > > No, you and others are trying to do gymnastics to say that is our argument. It doesn’t matter that the chance of the law being enforced is nil, it is still illegal to kiss your partner while asleep. This has not been demonstrated. The ruling did not say that. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [May 29, 2011, 11:42pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/151 "2011-05-29T23:42:48Z")
> [@Diogenes\_the\_Cynic](#): > > What if someone says they would love to be burned alive? What if I asked someone to paint me blue, sprinkle me with gold glitter, and then glue my hand to my cheek? ---
**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 29, 2011, 11:44pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/152 "2011-05-29T23:44:34Z")
How the fuck is that responsive? If someone wants to killed, should it be a crime to accomodate them, yes or no? ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 29, 2011, 11:58pm UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/153 "2011-05-29T23:58:31Z")
> [@Diogenes\_the\_Cynic](#): > > How the fuck is that responsive? If someone wants to killed, should it be a crime to accomodate them, yes or no? No, it shouldn’t. If I am in favor of assisted suicide (as I am), it’s an easy question. I’m not sure I’d want to draw a line involving method of death, either, as that feels too much like the righty-tighies banning partial birth abortion just to make it more annoying to do something legal and necessary. ---
**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, 12:03am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/154 "2011-05-30T00:03:31Z")
That’s an extremely radical and bizarre length to go to to try to win a rhetorical point, but at least it’s consistent. So just so we have this straight, in your perfect world, anybody can kill anybody by any method for any reason, and as long as they say the magic words, “she wanted it,” that killer gets to walk? ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 30, 2011, 12:05am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/155 "2011-05-30T00:05:26Z")
> [@Zeriel](#): > > No, it shouldn’t. If I am in favor of assisted suicide (as I am), it’s an easy question. I’m not sure I’d want to draw a line involving method of death, either, as that feels too much like the righty-tighies banning partial birth abortion just to make it more annoying to do something legal and necessary. The courts have drawn a line between assisted suicide and euthanasia. Assisted suicide is a doctor giving a patient the meds to do it himself. Euthanasia is different. Last I checked, I can’t choke myself and then shove a dildo up my ass while unconscious. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [May 30, 2011, 12:09am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/156 "2011-05-30T00:09:52Z")
> [@Boyo\_Jim](#): > > So what you’re saying there is no case if the victim/witness either refuses to answer questions on the witness stand (and is cited for contempt), or commits perjury in answering them. Well, I can’t argue with that. Not exactly. Assuming that the hearsay is even enough evidence for an arrest (and it probably isn’t) ,there’s virtually no chance of conviction if the alleged victim refuses to appear , or refuses to answer questions, or commits perjury or testifies entirely truthfully making it clear that he/she did not complain to the police/prosecutor and does not support the prosecution of this case. Which means that the prosecution will never begin, as no prosecutor has sufficient resources to pursue unwinnable cases. Even in the case of anal sex after being choked into unconsciousness, there probably wouldn’t have been a prosecution if the woman had never made a complaint, rather than made a complaint and later recanted. This doesn’t mean that the law shouldn’t be changed by the appropriate body so as to allow kissing a sleeping spouse but to prohibit sexual activity with an unconscious person. It does mean that fear of prosecution due to an offhand comment about a kiss while asleep is an overreaction. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 30, 2011, 12:19am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/157 "2011-05-30T00:19:34Z")
> [@Diogenes\_the\_Cynic](#): > > So just so we have this straight, in your perfect world, anybody can kill anybody by any method for any reason, and as long as they say the magic words, “she wanted it,” that killer gets to walk? I would expect a high standard of proof of consent, such as a witnessed affidavit similar to existing documents that serve similar functions (like living wills). **Dio** , I am not talking about this case. I am talking about the precedent this case sets. Let me amplify that–the fact that the defendant in this case is a complete scumbag and deserves to go to prison for a long long time, preferably with a sign around his neck that says “dildo ass-rapist”, doesn’t change the idea that the majority opinion’s summary of law has some serious potential implications. ---
**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, 12:20am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/158 "2011-05-30T00:20:40Z")
> [@doreen](#): > > Not exactly. Assuming that the hearsay is even enough evidence for an arrest (and it probably isn’t) ,there’s virtually no chance of conviction if the alleged victim refuses to appear , or refuses to answer questions, or commits perjury or testifies entirely truthfully making it clear that he/she did not complain to the police/prosecutor and does not support the prosecution of this case. Which means that the prosecution will never begin, as no prosecutor has sufficient resources to pursue unwinnable cases. Even in the case of anal sex after being choked into unconsciousness, there probably wouldn’t have been a prosecution if the woman had never made a complaint, rather than made a complaint and later recanted. > This doesn’t mean that the law shouldn’t be changed by the appropriate body so as to allow kissing a sleeping spouse but to prohibit sexual activity with an unconscious person. It does mean that fear of prosecution due to an offhand comment about a kiss while asleep is an overreaction. In an earlier post, I posited that the “victim” tells the truth to cops or prosecutor in an interview before any charges are made. Perhaps the victim wouldn’t even realize she is spelling out the elements of a crime when she does so. And as for the the victim making statements opposing a prosecution, that happens a lot, and while it might influence the prosecutor’s decision, it certainly wouldn’t mean there is “no case”. There is probably a weaker case. I have a suspicion that in the particular case of the OP, the authorities wanted to get this guy by whatever means are available. And now they have some more tools to use, because IMO the court decision is overly broad. ---
**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, 12:28am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/159 "2011-05-30T00:28:35Z")
> [@Diogenes\_the\_Cynic](#): > > This has not been demonstrated. The ruling did not say that. Let me restate the question – if your partner asks you in advance to performs sexual acts on her while she’s asleep, is it ok to do so? I personally think it is, but IMO the court says it isn’t in this passage: > [@](#): > > The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point I don’t think we need to get into a question on whether sleep is the same as being unconscious. Do you agree that being asleep is being _not conscious_? ---
**Author:** ![MichaelEmouse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/michaelemouse/32/101_2.png) [@MichaelEmouse](https://boards.straightdope.com/u/MichaelEmouse)\ **Post date:** [May 30, 2011, 12:57am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/160 "2011-05-30T00:57:46Z")
> [@D\_Odds](#): > > Let’s ignore the defendant. He won’t testify at all, unless his attorney is completely and totally incompetent. > > What the prosecutor would be dealing with is an uncooperative witness to a crime with no other witnesses. No witness has to testify, and a DA will not really want to put an uncooperative witness on the stand if that all he has to go on. > > Just to ensure we are discussing the same issue, a poster claimed that a third party overhearing that he had kissed his wife after she fell asleep would be grounds for arrest and possible conviction. You and others are trying to do gymnastics to make a case where this could really happen. I’m saying that even though technically illegal, without the “molested” party actively testifying against the “molestor”, it is an **impossible** case to pursue and win. The testimony of the third party would be considered hearsay, and assuming that the molested party does not want to see his or her spouse incarcerated, they would work in concert against the prosecution. Just how do you propose a prosecutor get witness testimony? > > It is a phantom fear of the same type of man who lives in fear of a sexual partner “crying rape” on him. “He won’t testify at all, unless his attorney is completely and totally incompetent.” In such a situation, having the defendant testify may be the only way for the defense to present evidence. “No witness has to testify” So the subpoena I wrote to someone last week did not obligate her to testify? What do you think subpoenas do? “What the prosecutor would be dealing with is an uncooperative witness to a crime with no other witnesses” In the case presented in the OP, the complaignant had recanted. Having recanted, she must have been an uncooperative witness. The defendant still got convicted. A cooperative witness helps but is not necessary. And, as Uzi points to, if you want something to be criminal, you should be ready to send people to prison for it. not rely on “yeah it’s illegal but don’t worry it won’t be enforced according to its plain meaning”. If you’re not in favour of sending people to prison when that’s what the rule implies, change the rule. In this case, the court should have used the common interpretation principle that the legislator cannot have meant something absurd and gone with another interpretation. The defendant might still have been convicted under another, reasonable interpretation of the law. Note: The misogyny comment was not aimed at you. You’re reasonable and wouldn’t have gone for that kind of tactic. It was there for “you’re pro rape and hate women” arguers here. [Previous page](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446.md?page=7) [Next page](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446.md?page=9)