Seems like a self-evidently reasonable ruling. As far as the precedent this sets? Sheesh. My advice? If you have the type of relationship where your wife would run to the police if you woke her by grabbing her ass, don’t wake her by grabbing her ass.
Seriously, in 99.9999% of relationships, are there really such blurry boundaries and shaky relationships? Are there really married posters in this thread who worry that this now gives the old ball and chain just the ammunition she needs? Well, if so, my advice again: leave her alone when she’s unconscious. I know that’ a horrible burden, but try to be a brave little soldier.
“Well your honor you see, After she passed out I panicked and tried to get her to wake up, So I went through the standard medical procedures. A tap on the shoulder, a slap on the cheek, a cup of cold water, a dildo up the ass.”
If I’m not mistaken, it doesn’t matter what you and your wife think or agree to, it is sexual assault. Even if you both agree to the action, all it would take is one of you making a joking comment, “I wake my husband up to a blowjob”, in the presence of the wrong person and the offending party is dealing with the police.
Does anyone else recognise the somewhat clinical, and needlessly descriptive use of the word “relaxed” in that sentence as something of a red flag? You’re really not quite right in the head, are you Dutchman?
Your mistaken (unless Canadian law is radically different). If the husband doesn’t file a complaint and agree to testify, there is no case. It doesn’t matter if you tell the DA himself. I’m fairly certain even an insane DA can’t put him on the stand as a plaintiff against his will.
Perhaps I’ve misunderstood, but I thought that in the case cited by the OP in the first post, the woman had withdrawn her complaint.
DAs can put whoever they want on the stand as a witness as long as it’s relevant and barring some exceptions (E.g.: you likely can’t force the Prime Minister to testify).
Also, it would post an evidentiary problem, not a problem in law. To take my example again, let’s say my girlfriend wakes me up with a blowjob. I can accuse her of sexual assault and she can be convicted. That is the implication I see in the court’s reasoning. Do you see something in that situation which would prevent criminal liabilty from being triggered?
What country do you live in? A crime is a crime no matter what a third party says, even a spouse. There are tons of cases of assault that have been pressed against wife batterers even when the wife refuses to cooperate.
The odds of getting a conviction may go way down, but there is certainly a crime and a case should a prosecutor decide to pursue it.
This whole issue reminds me of the nutjobs who are trying to rebrand rape as “surprise sex”. If you don’t KNOW that your partner is OK with having a particular sex act performed on him/her, then ASK. It’s not that hard. “Honey, do you mind if I shove this dildo up your ass while you’re passed out?” Now, if someone is awakened by NSFW 8 legs of love, [spoiler]http://www.oglaf.com/8legs/[/spoiler], the fact that the loving arachnid usually paralyzes poor Ivan should be a hint that Ivan might not consent. On the other hand, Ivan might be so desperate for any sort of sex that he’d be OK with being fellated, as long as he’s blindfolded.
Seriously, if the relationship is such that one partner does stuff to another partner and the active partner is not 100% sure that the other partner is OK with what s/he’s doing, that relationship is in big trouble.
I’d have to say that having to TELL someone “It’s not OK for you to sodomize me when I’m passed out” is probably not a good sign.
How so? Were you under the impression that marital rape was legal before and now it isn’t?
If a wife wants to falsely accuse her husband of rape, she can already do it (not that I think false rape accusations happen at anywhere near the rate that a lot of people on this board seem to want to suggest. Actual rape is a far, far FAR more prevalent problem than the imaginary epidemic of false rape accusations that people always seem to want to complain about around here). This ruling makes no difference. It you thought it was previously ok for a man to ass-rape his wife while she was unconscious, you are wrong.
Except that if you read the decision you’ll see that asking this and receiving consent would have changed nothing. The decision explicitly rules that pre-unconsciousness consent doesn’t count. So even if you beg and plead for your husband to wake you with oral sex, he doesn’t have your (legal) consent to do so and is legally culpable of sexual assault if he does. In this country, at least.
Would you be ok with her fucking your ass with a dildo while asleep?
There is a big difference between normal vaginal sex since that tends to be what married couples typically have, and having a dildo shoved up your ass without dorect consent.
mrAru would be getting a divorce if he randomly shoved a dildo up my ass without direct consent. The issue of previous anal sex nonwithstanding, there are times when I just do NOT want anal [as many women who were pregnant at one time or another, I have occasional bouts of hemorrhoids. Nothing goes up my ass at those times, it gets very painful. Try it and you might get hit upside the head with a brick once I caught up to you.]
You’re right, it’s not a warranted inference. It’s explicitly spelled out in black and white in the decision.Paragraphs 58-65. Kissing your sleeping spouse is sexual assault. And yes, the wife would have to complain. That’s what happened here. The woman was apparently fine with what happened for two months, then used it as ammo during a custody battle.
Since you disagree that’s the ratio decidendi of the decision, could you point me to relevant paragraphs which contain it? There’s usually a few that show the reasoning of the court and allow inferences based on different facts.
What I took from the decision is that pre-unconsciousness consent to do something during unconsciousness is not valid consent during unconsciousness.
I get that. I’m saying I don’t believe as a practical matter it will ever come up. This was an instance where the wife filed a complaint, then recanted, involving a dirt bag with a questionable history. I will go out on a limb and say that this will never be prosecuted in the circumstances most people see the slippery slope leading to.
You and your wife have an understanding? Unless the Canadian authorities plan on installing video cameras in everyone’s bedrooms, it just ain’t gonna be an issue. You have a relationship where your wife stubbornly believes she gets to decide when dildos get shoved up her ass, files a complaint when you decide it’s up to you, then she recants? Yeah, that might be a problem. Does anyone think the other scenarios will lead to the same outcome, except in hypothetical-land? No complaint gets filed–as a practical matter, not as a strictly technical matter of law–and it ain’t ever going to be an issue, IMO.
