Canuck Supreme Court/Do not fondle your sleeping wife's boobs

The BBQ Pit
201

If I’m understand you correctly, you therefore agree with me and disagree with the law as written. I’m saying that lack of prior consent makes it not okay, and that, conversely, one may consent to an act that will occur while one is unconscious (rousably or no), and if that act occurs during unconsciousness, the actor has not assaulted you. (Or, if the actor has, it would have been assault had you be conscious at the time anyway).

In other words: acts committed with a conscious person are okay in the absence of non-consent. Acts committed with an unconscious person are okay in the presence of prior consent. If a person transitions from unconscious to conscious, or vice versa, the standard immediately changes.

Example: I’m giving a friend a backrub, and she doesn’t shy away. Backrub is okay. She falls asleep. Because there’s no prior consent to any other act, I may not escalate things.
Example: Two guys are sleeping together (like, unconscious sleeping, but they’re a couple). One guy wakes up and starts playing with the other, something they’ve talked about previously. That’s okay. The other guy wakes up and asks for it to stop. It needs to stop right away, because the prior consent for behavior while unconscious is trumped by the conscious withdrawal of consent.

Exceptions are made for acts that are not okay whether or not consent is given.

This standard seems very workable to me. It does not appear to be the current law.

202

No, that’s one of the issues in this thread. Prior consent is not sufficient. Remember the phrase “ongoing, conscious consent”. So any sexual activity with a sleeping person is a sexual assault.

203

Yes.

No (with the caveat that asleep is not unconscious).

Yes.

Right.

Right.

I think there are two factors that need clear legislative definition - one is about what constitutes consent (especiallywhat constitutes prior or implied consnet), and what constitutes “unconscious.” Clearly a peron who cannot be roused is in a much more vulnerable condition than one who can be.

The kissing a sleeping spouse scenario and the choke out/ass rape with a dildo scenarios are not equivalent, and I’m not willing to leglize the latter. The law in Canada can be better written, I suppose, but the conviction is still righteous in this case.

204

A sleeping person can wake up and say stop.

That person has to complain for it to even be an issue anyway.

205

First, I won’t argue the “unconscious” issue with you because you’re in full-on Dio mode, in which you just blatantly ignore any facts you’re offered in favor of stupid assertions, as if repeating them contradicts the evidence.

Now, I included the “exceptions” in my business above because it’s totally reasonable to say, “Any sex act that has a reasonable likelihood of lethality or permanent injury is not made legal by consent.” There are plenty of things we don’t allow folks to consent to, and this could be another one. A law that “choking out” a person was illegal would be sufficient to make this incident illegal. I don’t think anal dildo play should be illegal, however, and I don’t think that it falls into a special category of things that are okay with a conscious partner but not okay with an unconscious partner even with prior consent.

206

Not necessarily. What if my sleeping houseguest were a heavy sleeper, and I knew that, and took advantage of that fact to fondle her very gently? Would the fact that she could wake up and tell me to stop, and that I’d stop as soon as she woke up, excuse my actions?

207

Me either. We’re talking about anally raping an unconscious victim.

There was no prior consent in this case, and unconscious people can’t withdraw consent. Plus ass buggery has a potential for physical injury, especially when victim has no ability to respond or give indications of physical pain.

So no, it’s not ok to bugger a choked out victim with a dildo, even if they gave you permission to do it.

208

It depends on whether you have prior or implied consent. Lack of any prior consent makes it not ok regardless.

209

Ya’, know I have looked at a dozen definitions of sleep, and every single one of them refers to a lack of consciousness, in some cases if not all. Which means in different stages of sleep, many or all people are not conscious.

So I’m going to need a cite, aside from your personal claim that a sleeping person is conscious.

And the idea that a sleeping person can wake up and provide or refuse consent is the same thing as a conscious person giving or refusing consent is just too ridiculous for words.

210

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 s. 265) is that “A person commits an assault when (a) with the consent of another person, he applies force intentionally to that other person, directly or indirectly; . . . .” When it comes to consenting to sexual assault, s. 273.1(2)(b) and (e) sets out, et ali, that “No consent is obtained . . . where . . . the complainant is incapable of consenting to the activity; . . . or the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.”

At para. 41 through 43 of the judgment, the Chief Justice, for the majority, interprets the above to mean that a person must consciously consent to each and every sexual act, must be able to withdraw her consent at any time, and can not be capable of withdrawing consent if unconscious. At para. 57, she notes that the common law defences to assault do not apply to sexual assault (e.g. consenting to handshakes or hockey contact). At para. 59, she notes that a person being one’s partner is not a defence if one kisses one’s partner when that partner is asleep. She concludes at para 66.: “The definition of consent for sexual assault 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. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.” The only crack in the door that the Court leaves open is de minimus (at para. 63), but even then the Chief Justice notes that even mild non-consensual sexual touching can have profound implications, which indicates that the de minimus crack is itself very minimal.

Whether one agrees or disagrees with the majority’s decision, the simple fact remains that Dio’s all important difference between being asleep or unconscious is utterly immaterial to Canadian sexual assault law.

What this binding precedent is about is whether or not prior consent to sexual contact still holds once a person no longer has the ability to withdraw that consent. The Court has found that it does not. That leaves us with the problem of a law which intends to protect sexual assault victims being so broad as to apply to a range of conduct that might not have been considered by Parliament when making the law, be it kissing one’s sleeping spouse or kissing one’s Alzheimer’s stricken spouse (a defendant would have to defend based on the kiss being non-sexual), to a mutually drunk couple having sex after a heavy night on the town (a defendant would have to argue lack of mens rea", to the erotic asphyxiation followed by anal penetration in the case at hand.

211

For the sake of peace, I’m going to concede on the sleep/unconsciousness issue. I was taught there was a clear distinction as part of the medical training for my job, and I still maintain that IS an obvious distinction, but I’m not going to argue it anymore. I think we all understand that there’s a difference, but arguing the semantics of “conscious” vs. “unconscious” is not getting me anywhere.

212

Is the remedy to legalize anal penetration of unconscious, asphyxiation victims?

213

That’s not conceding. That’s just saying you’re not going to argue your point anymore.

214

No. However no-one is discussing a victim here, they are discussing why one is not allowed to be choked out and anally penetrated by request.

Like most sensible people here, I think it’s fucking ridiculous that I can’t consent to that if I choose.

I’ll try again. Rape is bad, people. Don’t be a-rapin’. Have you managed to read me say this yet, Dio?

215

No. The remedy is that prior consent to certain sexual acts intended to be performed on one’s sleeping/not conscious partner should be sufficient to preclude prosecution.

Apparently that necessitates amending the law.

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.

216

I respectfully have to disagree - at least insofar as the unconsciousness is not easily rousable.

217

Sure, there is a difference, but it is not germane to this discussion. A meaningful concession would be that a sleeping person is not always conscious. Not conscious is also different from unconscious. But according to how the court is interpreting the law, prior consent to sexual acts before either condition cannot be granted.

218

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?

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.

219

I quoted the relevant section from the Supreme Court’s statement of facts in an earlier post. The initial court determined consent was NOT given for anal penetration, and that the recanted statement was typical of a partner in an abusive relationship.

220

I understand what you’re saying, and I am imagining a hilarious Parliamentary debate as they try to amend the law:

“Mr, Chairman, I am of the opinion that prior consent must include the exact nature of the the acts consented to.”

“I rise to add an amendment to the bill that requires specific consent for sex toys such as dildos.”

“I think we should exclude vibrators form the consent requirement. They sell them at Walmart, after all.”

“Mr. Chairman, on behalf of one of my constituents, ZPG Zealot, I am introducing an amendment to include handshakes among those activities precluded without specific prior consent.” :stuck_out_tongue: