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Archive for May, 2011

There have been several reports in the news in recent weeks about a Canadian family who are refusing to reveal the gender of their baby child, Storm. Storm’s mom, Kathy Witterick, wrote an article published in today’s Leader-Post, which provides an intimate, heart-felt and fascinating perspective on her brave approach to parenting. The article can be found here: http://www.leaderpost.com/mobile/iphone/story.html?id=4857577.

What kinds of legal implications would there be for this approach to parenting?

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On May 27, the Supreme Court handed down its decision in J.A. In a 6 – 3 decision, the Court ruled that an individual cannot give advance consent to sexual activity while unconscious. J.A. was charged with sexual assault after he choked his partner, K.D.,  into unconsciousness during an act of autoerotic asphyxiation and she awoke to find her self bound and being anally penetrated with a sex toy. K.D. testified that the asphyxiation was consensual but gave conflicting answers on cross-examination as to whether she had consented to the penetration. The issue thus became whether a doctrine of advance consent to unconscious sexual activity exists in law. J.A. was convicted at trial after the judge found the victim’s conflicting testimony to be “typical of a recanting complainant in a domestic matter” and that as a result of existing jurisprudence, there can be no advance consent. The sentencing decision revealed that J.A. had a long history of violent and weapons convictions, including 3 prior convictions for domestic violence, 2 of which involved K.D.

The conviction was overturned by the Ontario Court of Appeal, which split 2 -1 in ruling that a doctrine of advance consent protects the sexual autonomy interest of individuals and that if one consents to the autoerotic asphyxiation and then passes out, the only state of mind that person ever experiences is one of consent. Justice LaForme disagreed: “In both the common law and statute law applicable to sexual assault, choice and autonomy are active and oriented to the present; to the here and to the now.  Consent is the autonomous choice of the individual.  Consent ends when the active independent personal operating will ceases.  Indeed, this is precisely what is being expressed in the jurisprudence, in my view.  Thus, I must respectfully disagree with my colleague when she holds that consent in advance to sexual activity expected to occur while unconscious or asleep is entirely consistent with this principle.” The court split on the issue of advance consent, and thus the case was appealed as of right to the Supreme Court of Canada.

The Supreme Court ruled that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…requires the complainant to provide actual active consent throughout every phase of the sexual activity.  It is not possible for an unconscious person to satisfy this requirement.” The majority’s decision follows the existing jurisprudence and uses statutory interpretation to hold that ultimately, if there is to be an exception for advance consent, it must be Parliament who allows for it, not the Court.  The Court also firmly rejects arguments that advance consent is legitimate because it is allowed for in medical intervention cases involving unconscious surgery where doctors are prevented from assault charges due to the advance consent of the patient. The Court rejects this argument, noting that surgery and sexual activity involve entirely different contexts and that while Parliament has enacted legislation that specifically exempts doctors from criminal liability flowing from surgical intervention, the same cannot be said for advance consent to sexual activity. The Court also dismisses arguments that without advance consent, awakening a sleeping partner with sexual touching becomes subject to criminal liability. Here the Court notes that advance consent would only offer a defence where the sleeping partner did in factspecifially consent in advance of falling asleep. Further, advance consent is inappropriate because the advance wishes of an unconscious partner could easily be misinterpreted or exceeded, leaving them vulnerable and open to abuse. Finally, the sleeping partner hypothesis is rejected because evidentiary and jurisprudential difficulties. The majority concludes by stating “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.” J.A.’s conviction was restored.

This decision has important implications for protecting those who are most vulnerable to sexual assault. As LEAF counsel Elizabeth Sheehy states “Women who are unconscious because of drugs or alcohol, whether taken voluntarily or involuntarily, or because of disability, are sexually assaulted at shockingly high rates, often with impunity for the offenders.  This decision ensures that predatory men cannot rape unconscious women and then say “well, she said it was OK before becoming unconscious.”” The decision affirms the right of every individual to be able to withdraw consent at any moment. Consent must be ongoing and active at all times.

Beyond the decision on advance consent, the case raises interesting issues about how a domestic violence context should be raised at a criminal trial and how BDSM practices should be dealt with. Notably, the Court appears to leave open the possibility that someone could consent to bodily harm during sexual activity, stating “I take no position on whether or in which circumstances individuals may consent to bodily harm during sexual activity.  In my view, it would be inappropriate to decide the matter without the benefit of submissions from interested groups.” It is interesting to note that the judges at the upper levels (and indeed, the news media) fail to understand that the purpose of autoerotic asphyxiation is not unconsciousness, and none are alive to the fact that strangulation in wife abuse cases is extremely common. Professor Karen Busby is working on a paper that will address these issues.

Read the decision:

http://scc.lexum.org/en/2011/2011scc28/2011scc28.html

Read more about the decision:

http://www.winnipegfreepress.com/canada/breakingnews/supreme-court-says-no-consent-in-unconscious-sex-case-restores-conviction.html

http://www.theglobeandmail.com/news/national/no-consent-in-unconscious-sex-case-supreme-court-rules/article2037117/

Read LEAF’s press release:

http://leaf.ca/wordpress/wp-content/uploads/2011/03/Press-Release-in-R.v.J.A.-Case.pdf

Read LEAF’s intervenor factum:

http://leaf.ca/wordpress/wp-content/uploads/2011/03/Factum_Finale_JA_Filed_SCC.pdf

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http://www.theglobeandmail.com/news/national/quebec/nobel-laureates-gather-in-quebec-to-campaign-against-rape/article2033529/page2

From Wednesday’s Globe and Mail:

Three Nobel Peace Prize winners gathered in Quebec on Tuesday to discuss rape as a weapon of war. One hundred women from around the world, many of whom had experienced sexual violence, joined the laureates. The group explored the effect of such violence on victims and on communities, and noted that, while there have been some attempts by the international community to prevent sexual violence during conflict, not enough has been done. The Nobel Women’s Iniative called for a variety of measures to be put in place in order to achieve more concrete and meaningful results for victims.

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Despite what Margaret Wente might claim, women in Canada still have a lot to work for. Today’s Globe and Mail has an article about how women still don’t expect equal pay:

http://www.theglobeandmail.com/report-on-business/managing/on-the-job/women-expect-less-pay-from-the-start/article2028830/

The article explains how a recent study found that female university students still expect to earn considerably less than their male colleagues, and also have lower career advancement expectations. While professors and students quoted in the article report being shocked at this, the expectation does in fact line up with reality. The article sites a 2008 StatsCan statistic that women earn 83.3 cents to every dollar a man makes (As this LEAF pay equity fact sheet explains, the wage gap is even greater for Aboriginal women, women of colour, and racialized and new immigrant women).  The study’s co-author, Sean Lyons, indicated that although young women are entering traditionally male-dominated fields in greater numbers, this does not necessarily result in more equality in the labour market.  As the Globe article states, “The study found evidence that this is because women form their expectations based on historical gender-role stereotyping and discrimination in the labour market.”

This is pretty sobering food for thought as members of Robson Hall’s class of 2011 begin their articling positions and the class of 2012 begins the process to find articles.

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Is excessive drunkenness a defence to sexual assault? Technically, no. Parliament has passed legislation that removes intoxication as a defence for sexual assault. This legislation has repeatedly been found unconstitutional in lower court rulings, yet remains in force as there has been no binding authority on the question.

http://www.theglobeandmail.com/news/national/ontario/judge-reinstates-controversial-drunkenness-defence-in-sex-assault-case/article2011843/

Thoughts? Should excessive drunkenness be a defence to a charge of sexual assault? Will juries convict anyways? Or will this operate as a ‘get out of jail free’ card?

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I’m not sure that a quarter is anything to be proud of, but it is indeed a record. In Monday’s election, 76 women were elected as MPs, representing a quarter of the House. 40 of the newly elected female MPs are NDP, 29 are Conservative, six Liberal, one BQ and of course, one Green. The one Green is noteworthy for a number of reasons, but what hasn’t really come up in the post-election talk is the fact that she is currently the only female political party leader in the House. This may change with the Liberal and BQ leadership races, but I haven’t heard any female names being thrown around as potential candidates. So, while women slowly begin to make gains in political office representation, top party leadership remains dominated by men. It will be interesting to see what Harper’s cabinet looks like, but regardless, it’s clear that there is still a long way to go for women in politics. For this reason, it is exciting to see young women being elected in Quebec – Mylene Freeman, Charmaine Borg and Lauren Liu. It is thrilling to see voters support young women in politics. Perhaps this will lead to more women rising through the ranks in Ottawa, and more women willing to enter politics in the first place.

http://www.theglobeandmail.com/news/politics/voters-send-a-record-76-women-to-parliament-most-of-them-ndp/article2009244/

http://www.montrealgazette.com/life/McGill+head+House+Commons/4722338/story.html

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