Canada Supremes: No Sexual Consent for the Unconscious

OTTAWA, Ontario—Late last month, the Supreme Court of Canada in a 6-3 decision ruled that a person cannot provide consent for a sexual act committed while they are unconscious. While that may sound like an obvious standpoint, the facts of the case that led to the decision indicate why it could complicate some people’s already complicated sex lives.

The court found that the man in the case, who is referred to as J.A., “was guilty of sexual assault against the Ottawa woman, known as K.D., because of the acts he committed after she had agreed to let him choke her into unconsciousness,” reported the Edmonton Journal. “The majority concluded that the Criminal Code protects the right of an individual ‘to consent to particular acts and to revoke her consent at any time,’ and does not allow for an individual to provide consent to sexual activity if he or she is not conscious.”

At the time of the incident in question, J.A. and K.D. were in a relationship. “One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long‑term partner K.D. and choked her until she was unconscious,” wrote Justice C.J. McLachlin, in the opinion. “At trial, K.D. estimated that she was unconscious for ‘less than three minutes.’ She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before. When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting a dildo into her anus. K.D. gave conflicting testimony about whether this was the first time J.A. had inserted a dildo in her anus. J.A. removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse. When they finished, J.A. cut K.D.’s hands loose.”

Two months later, according to the opinion, K.D. filed a police report, claiming that she had consented to being rendered unconscious but not to the sexual activity perpetrated while she was unconscious. Later, she tried to recant the complaint, saying she had only made it because J.A. had threatened to seek sole custody of their young son, but it was too late; J.A. was charged and convicted of sexual assault. An appeal was subsequently heard and the Court of Appeal set aside the conviction and dismissed all charges against J.A.

The case was then heard by Canada’s Supreme Court, which was asked to determine “whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious,” and as often is the case in cases like this, the court rested its decision on Parliament’s definition of consent.

“Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question,” wrote McLachlin. “Parliament’s definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious. The legislation 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.”

While seemingly conclusive, the opinion does recognize that its decision may not quite jive with the realities of modern sex, but determined that its hands were tied, so to speak.

“In some situations,” McLachlin concluded, “the concept of consent Parliament has adopted may seem unrealistic. However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine Parliament’s choice. This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed.  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.”

One dissenter, however, argued that the ruling actually supersedes the intent of Parliament, writing, "Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately. Prior consent or even an explicit request—'kiss me before you leave for work'—would not spare the accused from conviction."

But advocates for more stringent laws against sexual assault said the fear of overreach was exaggerated, and such incidents would never be prosecuted.

"There is no crisis in our criminal law by virtue of this decision," said Elizabeth Sheehy, a lawyer for the women's Legal Education and Action Fund and a law professor at the University of Ottawa. "You're not going to see a rash of prosecutions for the sleeping kiss or any such nonsense."

While this ruling applies to Canada only, the Philadelphia Examiner reported last year on a new disorder called Sexsomnia "where sleeping people engage in sexual acts including fondling, masturbation, sexual vocalalizaions, and even intercourse," with no memory of it the next day. Assuming Canadians are subject to the disorder like everyone else, one wonders in what way the law that was affirmed by the High Court last month would impact individuals with Sexsomnia, if at all, and also whether someone might try to use Sexsomnia as a defense if caught taking advantage of a slumbering mate.

Not surprisingly, there is a sub-genre of porn dedicated to sex with people who are asleep, and several websites that cater to the niche (i.e. here and here), though it would be safe to assume that the people being shagged in scenes shot for the sites are not actually asleep.

The opinion and dissenting opinions can be accessed here.

Image: Sleeping Beauty, by Henry Meynell Rheam, available as a print on canvas here. Henry Meynell Rheam