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

[Steophan]

@Diogenes_the_Cynic

No she didn’t agree to it, asshole. Fucking inform yourself. She did NOT agree to having a dildo shoved up her ass while she was unconscious. She did not agree to that BEFORE she was unconscious. That particular act was not sometyhing she consented to. It was rape. It doesn’t matter what she said after the fact. She’s also a domestic violence victim, so she was probably afraid to go along with the prosecution.

@Steophan

*If she did not consent, it is of course rape, and should be severely punished.

@Uzi

You should have put this in the largest font and sent someone with a stick over to his house to slap him with it. He’d still ignore it, though.:rolleyes:

Full marks, Uzi.

[Zeriel]

@Diogenes_the_Cynic

Fuck no. Are you actually serious with this question?

So you’re of the opinion that boxing and UFC should be illegal?

Asleep is not unconscious.

Would you call yourself conscious when asleep then?

@Diogenes_the_Cynic

I believe a majority of this board would defend that as a legitimate defense.

This may actually be the most insane thing you’ve ever typed.

I’m advising you to do what you said you were going to in your last pit thread and step back before you flame out AGAIN.

[Diogenes_the_Cynic]

@Zeriel

So you’re of the opinion that boxing and UFC should be illegal?

You could make a case for it, especially with what we now know about the brain injuries associated with violent sports. Even those do not involve asphyxiation, though, which is a whole different order of dangerous.

Would you call yourself conscious when asleep then?

In medical terms, yes. In medical terms, “unconsciousness,” does not mean merely asleep, but indicates a lack of ability to respond to stimuli. A person who can wake up is responding to stimuli.

[D_Odds]

@Uzi

So, you are saying it isn’t illegal then?

I did not say that. I said they haven’t a hope in hell of getting a conviction without active participation from the sleeping party. Committing the illegal act of kissing your sleeping child on the forehead in Canada, even if you ‘brag’ about it, is not going to bring the RCMP breaking down your door to arrest you. Having the legislature fixing the law on the books would be a good thing.

@MichaelEmouse

Whether the DA gets any answers from the accused depends on whether the accused decides to testify. If he testifies, he can be cross examined. When you testify, you have to answer.

As for the alledged victim, the DA can subpoena that person and again, that person would have to answer.

People who testify don’t get to choose what they do or do not answer.

The defendant isn’t going to say a word. Even a defense attorney who got his degree from a piece of Bazooka Joe would see to that (assuming that Canadian law protects the defendant the same as US law). The “victim” just needs to say “I don’t recall.” Assuming the case where neither the husband nor wife is complaining, that’s all either has to say. Or “I misspoke.” Do you believe that they will be separated from accusation to trial and not be able to come up with this, as they are together in bed and avoiding kissing one another after falling asleep?

Without a complaint, there is no prosecution, true. That complaint can be made by a third party or by the alledged victim.

If the victim says nothing, the third party, unless they are in the room, have nothing more than hearsay. If I told you that I am the mullet bandit, sure, I could be questioned, but not arrested and certainly not prosecuted without anything to corroborate the story.

An alledged victim would never do such a thing, you say? What if a man once performed oral sex on his girlfriend to wake her up and she laters accuses him because they’re having an acrimonious child custody dispute. Or is it misogyny to think a woman could accuse her former partner of sexual assault because they’re having an acrimonious child custody dispute?

I never said that, if this was directed towards me. The claim was that if one told a third party that one kissed his or her sleeping spouse, that third party could have the kisser arrested (unlikely, but possible) and prosecuted (damn near impossible without the victim testifying). If the spouse is complaining, then a case can certainly be brought to bear. It is called marital rape and it is a real thing. However, if my wife and I are role-playing a rape scenario and my neighbor overhears and calls the cops, I will not be arrested unless my wife complains (maybe she’s sleeping with the neighbor and set this whole thing up to get me out of the way for a few days…who knows). It is unlikely that I will be arrested, or even brought out of my house, based on what the neighbor overheard.

[D_Odds]

@Otara

“she agreed to be anally penetrated”

I read the decision and couldnt see anywhere this was agreed as the case. It was more decided as irrelevant, ie even if she did agree ahead of time it didnt matter once she lost consciousness.

In the actual case it reads more as she viewed it as something she hadnt consented to and he had decided to do while she was unconscious, which is why she reported it to the police initially, then withdrew the claim as is common in DV cases.

If she had simply been making it up for custody issues, a far less complicated story would probably have done the job considering his history. Its more likely she just got scared by how big it was all getting.

Otara

Exactly. That is why withdrawing a complaint against a serial offender is treated differently than not making a complaint at all.

I’m also happy that you saved me the effort of going to the case and seeing where consent for the act of anal penetration was given. The news articles did not say. I don’t know why some people jumped to that conclusion.

[Zeriel]

@Diogenes_the_Cynic

You could make a case for it, especially with what we now know about the brain injuries associated with violent sports. Even those do not involve asphyxiation, though, which is a whole different order of dangerous.

I’m not sure I’d consider asphyxiation chokes more dangerous than the “cutting-off-blood-flow” chokes one sees in UFC, but I am not sure of the difference.

In medical terms, yes. In medical terms, “unconsciousness,” does not mean merely asleep, but indicates a lack of ability to respond to stimuli. A person who can wake up is responding to stimuli.

Unfortunately this court ruling doesn’t appear to be using that definition, given sections 58-64. Do you think the court ruling is sensible?

[Guinastasia]

@Diogenes_the_Cynic

I believe a majority of this board would defend that as a legitimate defense.

Get help.

[Paranoid_Randroid]

@Diogenes_the_Cynic

Maybe I think that way because so many people on this board routinely twist themselves into pretzels trying to defend rape in any and all of its forms (including child rape).

You are fucking insane. I mean, seriously, you are fucking insane – someone could argue against a too-common callous and unrealistic view towards rape, and I would in fact agree with that. But the above statement lies so far beyond the actual state of affairs that I simply can’t imagine what, beyond insanity (or possibly trolling), would compel you to say it.

You genuinely believe, 100% and without equivocation, that a sizable proportion (perhaps a majority!) of individuals on this board enthusiastically defend rape in “all its forms” – including (an example your wording encompasses) the violent molestation of small children? This is why that one outspoken pedophile got such a rousing reception here in the past year or two?

[Steophan]

@D_Odds

Exactly. That is why withdrawing a complaint against a serial offender is treated differently than not making a complaint at all.

I’m also happy that you saved me the effort of going to the case and seeing where consent for the act of anal penetration was given. The news articles did not say. I don’t know why some people jumped to that conclusion.

The reason for assuming the consent was that it was not part of her original rape complaint, if I’m understanding it correctly - the original complaint was about the sex they later had when she regained consciousness.

[Gleena]

@AK84

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.

R v Brown is S&M, isn’t it? Can’t consent to battery no matter what.

I agree with whoever said they are begging Parliament to fix the law. From McLachlin CJ’s judgement: “I conclude that the **Code makes it clear that an individual must be conscious throughout the sexual activity in order to provide the requisite consent. ** Parliament 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 would therefore allow the appeal and restore the conviction of the respondent.” (Emphasis added.)

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. (Emphasis added).

It’s not excusing rape. It’s the court’s hands being tied by the law. The woman in question said, herself, that she was not raped, that she was in fact ok with what happened while she was out. Neither of these people are all that reliable witnesses, so the Court has chosen to follow the law and call it out to Parliament.

[Farmer_Jane]

I am alarmed at how many people on SD say, “cry rape”. I’m also mildly concerned, though not surprised, that some people still think men have a right to their wives’ bodies, regardless of what she may or may not be consenting to.

[Uzi]

And who would those ‘some’ people be, btw? I haven’t seen any in this thread.

[blindboyard]

@aldiboronti

That was a dildo too far.

Why is everyone so fascinated by the dildo? The original complaint made to the police by the woman was about the sex that happened after she regained consciousness, not about the dildo. When she recanted they continued the prosecution on the grounds of sex during unconsciousness, again nothing to do with the dildo. The dildo is irrelevant.

Just to restate the facts, she requested to be choked during sex and she was choked during sex, accidentally causing unconsciousness. They’d done exactly the same thing before and she had given her consent for it to happen again. He fucked her, he choked her, she went unconscious. Nothing wrong with any of that as far as I’m concerned, or as far as the victim’s original complaint is concerned, or as far as the court is concerned.

When she went unconscious he continued fucking her, which he’s been convicted of, stopped choking her and apparently found time before she came around to tie her up and stick a dildo up her arse. Prior consent to such unclear. I could see the dildo thing being rape if consent wasn’t given, but not the continued sex for which consent was quite explicitly given, and which is what he’s been convicted for.

After she regained consciousness the dildo was removed, they had sex (again or still is not entirely clear) and then he untied her. At no time did she object to anything going on or revoke consent after she regained consciousness. Several weeks later, as part of a custody dispute, it was this part which she decided had been rape. Later she decided it hadn’t been rape after all.

Those are the facts on which the decision was made. Claim if you want that she was a domestic violence victim being intimidated into recanting, it didn’t scare her out of going to the police, or of giving the testimony which eventually put him in prison as to their having sex while she wasn’t conscious. Rather, a false accusation used as a weapon seems to most likely explanation.

Anyway, might in future be a good idea not to fall asleep during sex or to let your partner do so.

[MichaelEmouse]

@D_Odds

The defendant isn’t going to say a word. Even a defense attorney who got his degree from a piece of Bazooka Joe would see to that (assuming that Canadian law protects the defendant the same as US law). The “victim” just needs to say “I don’t recall.” Assuming the case where neither the husband nor wife is complaining, that’s all either has to say. Or “I misspoke.” Do you believe that they will be separated from accusation to trial and not be able to come up with this, as they are together in bed and avoiding kissing one another after falling asleep?

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.

[Diogenes_the_Cynic]

@Steophan

The reason for assuming the consent was that it was not part of her original rape complaint,

This is not a reason for assuming consent. It has not been demonstrated anywhere that there was any consent - not that it would have mattered anyway. If you buttfuck an unconscious person you are committing rape, full stop. Don’t do it. It’s not ok.

[Steophan]

@Diogenes_the_Cynic

This is not a reason for assuming consent. It has not been demonstrated anywhere that there was any consent - not that it would have mattered anyway. If you buttfuck an unconscious person you are committing rape, full stop. Don’t do it. It’s not ok.

As long as you never kiss your sleeping wife, I’ll never buttfuck someone who’s asked me to. Deal?

[Diogenes_the_Cynic]

A sleeping person is not unconscious, and kissing is not buttfucking. That comparison is stupid on every level.

[Zeriel]

@Diogenes_the_Cynic

A sleeping person is not unconscious, and kissing is not buttfucking. That comparison is stupid on every level.

Not according to the court judgement under discussion. Which would be the whole point of the analogies.

[Steophan]

@Diogenes_the_Cynic

A sleeping person is not unconscious, and kissing is not buttfucking. That comparison is stupid on every level.

Do you have some sort of problem with anal sex? Several people enjoy it, you know.

As for the sleeping/unconsciousness part, the court that made the decision we are discussing here thinks otherwise.

It’s not a stupid comparison - if I have a partner that wants me to have anal sex with them whilst they are unconscious, it’s no more immoral for me to do so than for you to kiss your wife when she sleeps, assuming she wants you to. It’s also no less legal for me to do so in Canada.

So what is your actual problem with? Anal sex? BDSM? People having consensual sex of a form you wouldn’t personally like?

[PlainJain]

@Zeriel

Not according to the court judgement under discussion. Which would be the whole point of the analogies.

Dio has his opinions and personal anecdotes, silly, he doesn’t need to be bothered with what some stupid court judgement says.