# 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:** 9
**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, 1:25am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/161 "2011-05-30T01:25:36Z")
> [@Boyo\_Jim](#): > > 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 wouldn’t be comfortable with it, but I don’t see how she could know it was happening anyway, so the request makes no sense. Now if she wanted to be _awakened_ by something, no problem. Once she awakes, she can stop me. Asleep is not unconscious, though. That ability to respond makes all the difference. I actually don’t see how it would be possible to have full on sex with a sleeping person and not wake them up (unless they are further incapcited by something else like alcohol or drugs, in which case I’d put them into the “unconscious” category, which is defined as the inability to respond. > [@](#): > > 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_? Medically speaking, no. I don’t agree. A sleeping person can wake up. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [May 30, 2011, 1:50am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/162 "2011-05-30T01:50:52Z")
> [@Diogenes\_the\_Cynic](#): > > A sleeping person can wake up. And an unconcious person can’t regain conciousness? Or are you suggesting that there is nothing that could be done externally to the person that would facilitate them regaining conciousness? Frankly, your argument about there being a difference when it comes to consent between sleep and unconciousness makes little sense. Now we have to determine was the victim unconcious or just a heavy sleeper? Why make the distinction (if there is any which I don’t agree there is)? ---
**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, 1:54am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/163 "2011-05-30T01:54:50Z")
> [@Diogenes\_the\_Cynic](#): > > I wouldn’t be comfortable with it, but I don’t see how she could know it was happening anyway, so the request makes no sense. Now if she wanted to be _awakened_ by something, no problem. Once she awakes, she can stop me. > > Asleep is not unconscious, though. That ability to respond makes all the difference. I actually don’t see how it would be possible to have full on sex with a sleeping person and not wake them up (unless they are further incapcited by something else like alcohol or drugs, in which case I’d put them into the “unconscious” category, which is defined as the inability to respond. > > Medically speaking, no. I don’t agree. A sleeping person can wake up. For the sake of argument and because of my own ignorance of the conditions, I accept that a sleeping person is not “unconscious”. But, is a sleeping person conscious or not? The passage I quoted did not use the term ‘unconscious’, it stated “ongoing, conscious consent” is necessary for consensual sexual activity. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 30, 2011, 2:35am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/164 "2011-05-30T02:35:55Z")
> [@Diogenes\_the\_Cynic](#): > > I wouldn’t be comfortable with it, but I don’t see how she could know it was happening anyway, so the request makes no sense. Now if she wanted to be _awakened_ by something, no problem. Once she awakes, she can stop me. But that’s clearly not the point. After all, if a friend is crashing on my couch and I go over and engage in sexual behavior with her while she’s asleep, I’m assaulting her–and the fact that I stop when she wakes up and screams at me doesn’t mean I didn’t assault her. The permission given to act **while the person is unable to withdraw consent** is what’s relevant. ---
**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, 3:40am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/165 "2011-05-30T03:40:24Z")
> [@Uzi](#): > > And an unconcious person can’t regain conciousness? The definition of unconsciousness is inability to respond to stimuli. A sleeping person responds easily to stimuli. A sleeping person is not unconscious. They are not close to the same thing. The comparsion is bullshit. ---
**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, 3:42am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/166 "2011-05-30T03:42:10Z")
> [@Boyo\_Jim](#): > > For the sake of argument and because of my own ignorance of the conditions, I accept that a sleeping person is not “unconscious”. > > But, is a sleeping person conscious or not? If they are able to respond to stimuli, then yes. ---
**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, 3:46am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/167 "2011-05-30T03:46:28Z")
> [@Left\_Hand\_of\_Dorkness](#): > > But that’s clearly not the point. After all, if a friend is crashing on my couch and I go over and engage in sexual behavior with her while she’s asleep, I’m assaulting her–and the fact that I stop when she wakes up and screams at me doesn’t mean I didn’t assault her. > > The permission given to act **while the person is unable to withdraw consent** is what’s relevant. This comparison does not parse. First of all, no consent is no consent regardless. If a person asked to be awakened by sex, then that is different from “consenting” to sex during a state in which they have no ability to awaken and respond. You can’t have full on, complete sex with a person without waking them up (unless some other factor is preventing them from being able to be awakened, in which case, they are unconscious by definition), so that scenario requires no response. The sleeping scenarios are all contrived bullshit, and are not realistic comsequences of this ruling. You can take any law and stretch it to most absurdly contrived interpretations. ---
**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, 4:40am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/168 "2011-05-30T04:40:55Z")
> [@Diogenes\_the\_Cynic](#): > > The sleeping scenarios are all contrived bullshit, and are not realistic comsequences of this ruling. You can take any law and stretch it to most absurdly contrived interpretations. Except that they are, the Supreme Court of Canada recognises that they are, and said so in the judgement in question at [65], which I quoted on page 3 of this thread. Quite apart from any thing else you think about the actual fact situation before the court, you cannot deny that this is exactly a situation which can occur, and that the justices have 1.) called out to Parliament to fix the law, and; 2.) telegraphed how they will rule if such a case is brought before them if Parliament choses not to act. The argument against this is _de minimus non curat lex_, which is what you seem to be arguing - that the law does not concern itself with trivialities, which MacLaclin CJ addresses in that judgement. However, if a SC Chief Justice takes the time in a judgement to flat out say that Parliament needs to look at the wording of a law, you can bet your socks (HAH and I almost typoed ‘cocks’ there, Mr. Freud) that he thinks it’s NOT _de minimus_. What you fail to understand is that sometimes the law can - and does - come to absurd conclusions because a statute is poorly or misleadingly worded. Judges are not free (except in very limited instances) to simply rewite the statue OR determine based on what they think a statute should have said. In this very instance, if she was unconcious or sleeping when he did what he did doesn’t matter. She was unable to give consent and that means it was rape regardless of what she said prior to giving consent to be made unconcious. It is exactly the same fact pattern as if you were kissing your wife, and she fell asleep, and you continued with the sexual touching without her permission. She is unable to give consent (due to sleep) to that sexual touch, and therefore you could be charged. The Chief Justice said as much, for christ’s sweet fucking sake. TL;DR, you’re full of shit, that is the law in Canada right now and the SC wants it changed for that reason. ---
**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, 4:59am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/169 "2011-05-30T04:59:12Z")
> [@Gleena](#): > > Except that they are, the Supreme Court of Canada recognises that they are recognises that they are, and said so in the judgement/ This is factually incorrect. The judgement references the _defendant_ as arguing this is a possible conclusion, and that sentiment is echoed in the dissent, but the judgement itself does not endorse the potential for that interpretation, and in fact, that interpretation is asinine. ---
**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, 5:03am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/170 "2011-05-30T05:03:16Z")
> [@Diogenes\_the\_Cynic](#): > > This is factually incorrect. The judgement references the _defendant_ as arguing this is a possible conclusion, and that sentiment is echoed in the dissent, but the judgement itself does not endorse the potential for that interpretation, and in fact, that interpretation is asinine. McLachlin CJ actually says at much, at 65: In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this 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, 5:09am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/171 "2011-05-30T05:09:15Z")
You forgot to quote the part that said kissing a sleeping spouse is rape. ---
**Author:** ![The\_Flying\_Dutchman](https://avatars.discourse-cdn.com/v4/letter/t/9fc348/32.png) [@The\_Flying\_Dutchman](https://boards.straightdope.com/u/The_Flying_Dutchman)\ **Post date:** [May 30, 2011, 5:09am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/172 "2011-05-30T05:09:45Z")
> [@Gleena](#): > > Judges are not free (except in very limited instances) to simply rewite the statue OR determine based on what they think a statute should have said. > > … that is the law in Canada right now and the SC wants it changed for that reason. I shouldn’t have called the decision retarded in my OP. After all, the best we can hope from our judges is to interpret the law correctly. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [May 30, 2011, 5:14am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/173 "2011-05-30T05:14:04Z")
> [@Diogenes\_the\_Cynic](#): > > You forgot to quote the part that said kissing a sleeping spouse is rape. There’s no such crime in Canada as rape. ---
**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, 5:16am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/174 "2011-05-30T05:16:15Z")
Kissing your spouse while they sleep is not a crime under ANY Canadian law, including this one. The court did not say it was. The defendant said it was, and the dissent said it was, but the judgement did not. ---
**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, 5:22am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/175 "2011-05-30T05:22:30Z")
> [@Diogenes\_the\_Cynic](#): > > You forgot to quote the part that said kissing a sleeping spouse is rape. Sexual touching on a person who cannot consent is rape, no matter what prior consent was given by the person who was touched. That is the ratio of this judgement. You agree that shoving a dildo up the anus of an unconcious person who could not give consent was rape. Therefore you agree that sexually touching (with that dildo) and unconcious person (who could not therefore consent) was rape no matter if she consented prior to becoming unconcious or not. Unless I misunderstand your position, we are on the same page here. The law, unless instructed to do so by statute, does not recognise degree. Ergo, kissing (sexually touching) a person who cannot consent (for reasons of sleep) is rape no matter what consent they gave prior, implied or not. It is, in fact, an absurd conclusion. This is what the CJ is calling out. I knew better than to pound my head on this wall, and did it anyway. Presume you are correct - why then would the CJ of the SC of Canada say: "In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary. " in your opinion? Why would he bother to call out that the law as written can produce an unrealistic result? Would you agree that calling rape the kissing your sleeping wife, or fondling her boobies, or any of the other innocently sexual touching you do without express consent of your partner while they sleep is “unrealistic”? Presuming you would call that ‘unrealistic’, in Canada, the SC agrees with you, and wishes Parliament to spell this out. ---
**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, 5:23am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/176 "2011-05-30T05:23:35Z")
> [@Gorsnak](#): > > There’s no such crime in Canada as rape. Good call. Sexaul assault is correct, and my apologies for repeatedly mangling it. ---
**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, 5:24am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/177 "2011-05-30T05:24:12Z")
A sleeping person is not unconscious, so no dice. ---
**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, 5:26am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/178 "2011-05-30T05:26:57Z")
> [@Diogenes\_the\_Cynic](#): > > A sleeping person is not unconscious, so no dice. :rolleyes: If you say so, but you are not correct. We will now devolve into the usual Dio Show of “Is too!” “Is not”. I’ll skip that bit. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [May 30, 2011, 5:47am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/179 "2011-05-30T05:47:28Z")
> [@Diogenes\_the\_Cynic](#): > > A sleeping person is not unconscious, so no dice. You’re arguing that a sleeping person can give consent then? ---
**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, 6:55am UTC](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446/180 "2011-05-30T06:55:33Z")
A sleeping person will wake up and respond. An unconscious person cannot. Kissing is not shoving a dildo up the ass anyway. This hypothetical is retarded from the word go. [Previous page](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446.md?page=8) [Next page](https://boards.straightdope.com/t/canuck-supreme-court-do-not-fondle-your-sleeping-wifes-boobs/583446.md?page=10)