It’s an example of a possible “absurd conclusion” raised by the defendant and the echoed in the dissent. It is not functionally a real possibility, though. It’s just the most extreme hypothetical interpretation of the law. It’s sheer demagoguery.
She has the ability to wake up and withdraw consent, but if she decides to complain about it, then she has, indeed, been assaulted.
I was once with a girl who told me it was OK if I had my way with her while she was sleeping. I wouldn’t have been comfortable doing it, but I guess some people are into that.
But you would say that it makes elective surgery with general anesthesia a rather dicey proposition for the surgeon though, because the person can always revoke their consent to the surgery after the fact and sue the pants off the doctor for assaulting them. Because a person who is unconscious can’t want a boob job.
As to your other point, a person who wants to be killed and eaten is not of sound mind and should not be capable of giving consent to anything. If you are arguing that the desire for unconscious sex is a mental illness that’s a different argument entirely and not one I am really prepared to argue.
Nope. Retarded comparison, That isn’t being done for the sexual gratification of the surgeon, but as a medical necessity help the patient.
Sorry, but I’m never going to agree that you have a right to choke women unconscious and them rape them up the ass.
A person who wants to be choked out and ass raped is not of sound mind either, and the “conset” would be just as meaningless.
The cannibal scenario was real, by the way. That’s a case that really happened.
That’s why I picked boob job. It isn’t necessary medically and it’s something that many people I know personally have regretted after the fact. It also involves cutting people with knives and touching them in (potentially) sexually exciting places, clearly potentially an assault. And it requires consent forms so that the people can’t turn around and sue after the fact.
That’s fine. If that’s your argument I won’t fight you.
I know. I wish I didn’t, but I know the whole story. Cannibalism squicks me out in ways that I can’t quite describe so of course my friends tell me every cannibal story they can get their hands on. That the guy wasn’t able to give consent to being eaten is my honest opinion, he was mentally ill.
Who is of more sound mind: the person that wants to do this, or the person that wants it done to them?
If someone encourages their partner to do this, and it’s a crime to do it, is the person who encourages it inciting their partner to criminal activity?
As villa already said, the surgeon example doesn’t fit because a surgeon is never allowed to presume that he has consent to operate. If you fall asleep in the waiting room, a plastic surgeon can’t just decide that because of the relationship you’ve got with him, he has consent to cut you open. He needs affirmative consent to do anything. That isn’t how sexual assault law works. A surgeon’s patient can give affirmative consent in advance, so that even when they’re unconscious and unable to withdraw it, we recognize consent.
Sexual assault law says that sex can be consensual without any affirmative consent given by either party – and it says that, in large part, because lots of people get really upset and ask “How can that be just” and say “get the government out of my bedroom” when the suggestion is made that it could work that way.
It’s a complicated problem. It’s hard to come up with rules that apply fairly from one extreme to the other. I can see frustrations on both sides of the question. I don’t think it helps that a lot of the response has been based on some inaccurate assumptions, as far as I can see.
[QUOTE=blindboyard]
Now, I wouldn’t want to have sex with an unconscious woman, but he didn’t find an unconscious woman and rape her, he made her unconscious with her consent to both the unconsciousness and the sex and at her request (her request was for the throttling, knowing it may lead to unconsciousness).
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Consent to what sex? Not sex while she was unconscious. Not for a dildo in her anus, which is what constituted the assault. She consented to being choked; that’s all we know.
According to the applicable law, what “we” have is a true allegation of sexual assault, and the man who was actually guilty of the assault being convicted for it. He isn’t guilty because he choked her, and he isn’t guilty of “sex,” which you say she consented to. He’s guilty of assault for penetrating her with a dildo while she was unconscious and unable to give or retract consent. Since you said the facts aren’t in dispute, I’ll just point out that there’s nothing in the opinion that says she consented to the dildo. I agree that it wouldn’t have mattered, according to the court, but a few people seem to think it’s important. She said that they had tried it once, but not that she consented to it happening again. Even if the rule was that he could only do what she specifically consented to, there’s no reason to think the result would change.
Asked him to do what, though? If he had just choked her, and she had complained that that was assault under the exact same facts otherwise, this decision wouldn’t exist. And again, it doesn’t look like anybody said she consented in advance to anything to happen while she was unconscious.
[QUOTE=WhyNot]
But I also think it’s ridiculous to claim my SO is a rapist when I’ve asked him to touch me sexually when I’m asleep.
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You probably would not think it was ridiculous in the situation where you went to the police and told them you didn’t consent to whatever it was that he did while you were sleeping (and where that was true). I am sure that there is something that could be done to you while you were asleep that you would not appreciate. If this weren’t the way the court interpreted consent in this context, your SO could do literally anything to you while you slept, so long as it could roughly be interpreted as sexual and didn’t put you at serious risk. Your SO could just say “My bad! She didn’t say no.” Of course, you probably wouldn’t go to the police in real life, because in real life you trust your SO and your SO is probably only doing those things that are actually OK. Which is, I think, almost a complete solution to the problem here. Really, all we need is for either the unconscious or the conscious partner to be somewhat reasonable, and it’ll take care of itself.
[QUOTE=Gorsnak]
The kissing thing is an explicit example in the decision. It is not a slippery slope red herring. The defense argued that the principle of consent being argued for by the Crown led to the ridiculous result that kissing a sleeping spouse constitutes sexual assault. The Supreme Court said yes, it does, but that’s what Parliament’s definition of consent leads to, and it’s not so ridiculous. I linked the decision and specified the relevant paragraphs in the Pit thread.
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That’s not exactly what the court said, though. The court said, yeah, it does seem an unrealistic approach in some situations, but the alternatives proposed in this case weren’t any more workable and wouldn’t even provide the relief being sought, so it declined to create any new categories just now. That doesn’t mean that the court would really uphold a conviction for an actual kiss. It just means that the court didn’t want to rewrite the entire criminal code because of the possibility that such a case could arise (and “in the absence of a constitutional challenge”). As I said in the other thread, I think it’s pretty clear that the court is shouting out to Parliament to redraft its legislative approach to deal with this situation so the court doesn’t have to take that upon itself.
You know, any kind of touching can be an assault, just like any kind of sexual touching can be sexual assault, and any kind of taking can be larceny, and so on. I don’t think that means we need to look at every case that deals with a rather serious touching or taking and assume that the exact same result would happen if everything was the same but with the mildest possible version of that action.
In case it doesn’t go without saying, I think the other point of view - that this is categorically the right decision, isn’t even a particularly difficult one, and could never in any circumstances be seen as infringing on shades of gray that are better left untouched – is a silly and unrealistic one. All in all I think it wasn’t a bad job by the court, though.
Yes, I agree with that. But I still find it troubling. The court has held that it isn’t possible to provide affirmative consent in advance to any sexual activity during transitory unconsciousness (aka sleep). I would like to think that I’m competent to consent to being woken up by a blow job.
The Court found that that’s the way the law is currently written, not that it necessarily agrees with it.
According to Dio people being operated on are being assaulted with a deadly weapon.
Cite?
Right there.
I’m not faulting the Court, at least until someone more learned can comment on whether the ruling is congruent with written law and precedent. I’m saying that I’m troubled by the outcome. If the appropriate remedy is Parliament amending the law, so be it.
I’nm not troubled by THIS outcome. This was clearly a sexual assault, and was not in some gray area of implied consent to touching.
Consider two situations:
- A person says, “When I fall asleep, I want you to have sex with me. If you do, I’ll make it totally worth your while.”
- A person says, “When that girl on the couch over there falls asleep, I want you to have sex with her. If you do, I’ll make it totally worth your while.”
Is there a moral difference between these two situations? Is the first person in the clear, whereas the second person is not?
What about a legal difference? Can the second person be held legally accountable? What about the first?
If I cannot give consent for my future sleeping self, then it seems to me that legally there should be no difference between encouraging someone to rape my future sleeping self and encouraging someone to rape a sleeping stranger. The only way any distinction there makes sense is if I CAN give consent for my future sleeping self.
Edit: I’m aware that my hypotheticals may not reflect the specifics of this court case.
Why, when a dentist renders me unconscious with nitrous oxide, then pulls out my tooth, is the pulling of the tooth not an act of assault?
No, it is not an act of assault.
So would I. I mean, not about you. About myself.
One way to resolve it would be to simply make the rule that prior affirmative consent is valid when a person is unconscious. Then you could just say you were OK with that, and you and the law would be on the same side. You’d still have to actually say it; otherwise you’d be in the same situation despite the law recognizing your competence in that regard. The court couldn’t really do that in this case, though, without tearing up the criminal code, because that’s really really not what the law says. Even if it had done so, it wouldn’t have changed the result, since it does not appear that she said she wanted to be penetrated anally while unconscious. So that would have been a lot of trouble to go to. You’d probably have to keep rewriting it for every unique set of facts that you hadn’t considered, too.
Another way would be to say that affirmative consent is the consent required for all sex. More extreme, and even more of a complete kick in the head to the legislature, but more consistent with the law in other areas and a more complete solution. Also very controversial. Lots of people would like to think they are competent to consent to sex without signing a contract and a waiver, etc. etc. If nothing else, though, either of these two schemes allows people to finally have their surgery analogies.
A third way would be to try to find an opening for some kind of implied consent. I think that was the only avenue plausible for the court in this case, but I don’t know if that would have been satisfactory. You could say that certain relationships give rise to a presumption of consent to certain acts, but which relationships and which acts would be the next two questions. Those are hard questions; maybe impossible ones. And you’d still run the risk of outlining a whole new scheme and ultimately having to say “so yeah, he’s guilty of sexual assault” anyway.
The fourth approach, the one the court seems to have gone with, wouldn’t resolve that particular question at all, and wouldn’t be very elegant, but I’m thinking it might be more practical. You could just say “you can’t consent to sex while you’re unconscious, either contemporaneously or in advance,” and then rely on the likelihood that in all the relationships and for all the acts that would qualify for that presumption I was talking about, there’d never be any trouble anyway because there’d probably never be a complaint. The danger is, if there is a complaint, and there’s no discretion exercised at any level from investigation to prosecution and sentencing, a person could be found guilty of a sexual assault for something that one of the first three approaches would have excused. That would be the situation where a person makes a criminal complaint about the blowjob he received while he was sleeping, even though in layman’s terms he consented to it (I guess?). The question is whether all the changes the first three would require would create worse complications than this one.
There’s also a difference between asleep and unconscious. Those are not the same thing. Unconsciousness is a much more vulnerable state than sleep. It’s a state of trauma.