She consented to that.
At para 5 of the SCC Judgement
The Feminists were decrying the Intermediate Appellate Court ruling.
This is the result of rape laws being based on requiring the victim to presume absence of consent, rather than acquiring affirmative consent. If (as is the case in most other crimes where consent is at issue) there was an affirmative consent standard, it would be possible to write into such laws the idea that in an ongoing relationship, consent was a continuing thing that could, of course, be actively withdrawn. Giving one’s wife or husband a kiss while they were asleep would not then be considered to be assault.
However, that isn’t the legal situation we are in, and it is one which many people have fought strongly against. If we are to continue in a situation where (a) we presume that marital rape is to be criminalized (and it took us hundreds of years to get to the point that it is) and (b) the present situation of requiring a active display of non-consent is required, then we are going to have cases like this.
Now, in an affirmative consent world, we would ask the question of whether the wife consented to being choked unconscious in the understanding she would be sodomized with a dildo while unconscious. To cry foul when someone gets convicted for that, and at the same time expect the unconscious woman to express non-consent for said sodomy strikes me as a little misguided.
I don’t know Canadian law, but I know in some (many, most?) US jurisdictions you cannot consent to that. I think you should be able to, but it certainly doesn’t imply consent to the anal penetration after. And even if there was prior consent to the anal penetration, that consent has no real legal standing, because for consent to be valid, it has to be revokable. Once unconscious, it clearly isn’t revocable.
No comment on Canadian law, but at Common Law there are certain things you cannot consent to; really horrific torture for instance; See R v Brown and Laskey v United Kingdom (ECtHR).
I don’t think this would come under that heading.
I’m just going to stand in awe of this paragraph. I don’t have any comment on it other than: that’s a paragraph right there, that is.
The problem is with Marital Rape and the current laws on consent. I am not advocating a return to marriage being a defense to rape or creating something akin to a doctrine of implied consent, but an acknowledgment that during the subsistence of a marriage or long term partnership, there are many circumstances where a partner or indeed any reasonable person in his/her position would believe that consent is given and that this is not the case in other relationships/interactions.
I can agree to that - but if we want to stay with expression of non-consent then we get this problem. I don’t see an issue with implied consent within longstanding relationships when the legal standard is affirmative consent.
Maybe tomorrow morning, just to celebrate being American, I will wake up the old ball-and-chain by slipping a dildo up her bum - just because I can.
Or maybe not.
Regards,
Shodan
I am also available for weddings and bar mitzvahs. At very reasonable rates.
Joke’s on you when you find one already there.
Jesus fucking Christ, both my first wife and I would be serving time now if this dumb ruling was enforced. I’d sometimes wake up in the night to find my nearest and dearest straddling me and guiding me home, so to speak. I’d return the favor some nights. We both found something intensely erotic about a sleeper being gradually aroused in their sleep. Legally, were we both guilty of rape in those moments before the sleeper awoke? Maybe so, but the judges can kiss my hairy ass if they think it’s any of their damn business. As competent adults it was for my wife and I to decide if and when we’d been raped, not some damn lawyer.
As an incidental note, if being rendered unconscious and then anally penetrated is illegal, that pretty much bans most rectal surgeries.
I think she just should have waited and did the same thing to him. There. Problem solved.
She obviously wasn’t too worked up over when it happened, hence the 2 month delay.
She should have been thinking to herself “I’ll show you a dildo surprise fucker”, and bought an even larger one for him. And left it in, so he could wake up with it in.
And then leave, cause he’s an abusive shit anyway, but what an awesome way to leave.
Well that’s the thing - the wife in this situation did decide if and when she’d been raped, not some damn lawyer.
Interesting point. What is the difference between the verbal consent the wife gave and the written consent you give a doctor? Or is it that the doctor isn’t doing it for fun?
Tomorrow, my (imaginary) girlfriend wakes me up with a blowjob. I accuse her of sexual assault.
Using the ratio decidendi of the court, what legal defense means does she have?
I gotta member, sodomize THEN choke!.
The Court has attempted to (very properly) distinguish between law and evidence. In other words that you say that a single sexual touch is capable of in law being illegal, whether it actually was as a matter of evidence (in other words did the receiving party consent?)
That could have been tolerable, what makes the Courts decision dangerous is the opinion that consent can never be given by a sleeping person; even if consent was given before falling asleep since it can never be withdrawn. It just makes it impossible.