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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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Read the original article here:

http://www.winnipegfreepress.com/opinion/westview/sexual-defence-threatens-women-106814573.html

I have reproduced the text from the original article below to make for easier reading

Winnipeg Free Press – PRINT EDITION

Sexual defence threatens women

By: Karen Busby

Posted: 6/11/2010 1:00 AM

On Monday, the Supreme Court of Canada will hear the JA case. JA was convicted of sexual assault for tying his 22-year-old partner’s hands behind her back and inserting a dildo in her anus while she was unconscious. She testified at trial she had agreed to erotic asphyxiation (strangulation) at her partner’s hands because she thought it would enhance sexual arousal. Instead, she became unconscious. In giving this evidence, she recanted statements she made when she first went to the police, including her statement that she had not agreed to erotic asphyxiation. The trial judge described her as a “classic recanting victim.”

The Ontario Court of Appeal overturned JA’s conviction, stating the complainant had consented in advance to sexual activity that occurred while she was unconscious and therefore no sexual assault occurred. JA’s lawyer is now arguing the law should just leave couples alone if they want to engage in “spicy sex.” He also asserts men who sexually touch a sleeping partner could be prosecuted if JA’s conviction is reinstated.

Erotic asphyxiation is extremely dangerous. There is no safe way to engage in it. Any time the brain’s blood supply is cut off, there is a danger of brain damage and even death. At least 1,000 Americans accidentally kill themselves each year while attempting it. Even advocates for radical personal autonomy regarding sexual practices agree all sexual activity must cease when a partner loses consciousness. Common sense dictates consent to engage in sexual activity is never present when an unconscious partner is in a potentially life-threatening situation.

The sleeping-partner problem the defendant’s lawyer raised is a red herring. In almost 25 years of research, I have never seen a sexual-assault prosecution of a man who wakes a sleeping spouse with a sexual touch unless the parties were already estranged and no longer sharing a bed.

On the other hand, there are recent cases where men have been acquitted of sexual assault for sexually touching women with whom they have no sexual history while the women are sleeping, intoxicated, drugged or incapacitated. Acquittals were granted because the defendants perceived a signal of possible sexual interest (such as flirtatious comment) at some earlier time. Sexual assault is often a crime of opportunity so perhaps it is not surprising these cases most often involve complainants who are aboriginal, young or physically disabled. A doctrine of advance consent will make these women even more vulnerable to sexual violence.

The Supreme Court should soundly reject the Appeal Court’s determination that advanced consent should become part of Canadian law.

At JA’s sentencing hearing — but not before — the trial judge learned he was a lifelong criminal and described him as a “deviant and dangerous man.” JA had been convicted on 13 previous occasions of multiple charges for violent offences. Three of the previous sets of convictions involved wife abuse; two of those involved this complainant. He was sentenced to 18 months imprisonment, two years probation and prohibited from contacting the complainant.

Our criminal evidence laws prevent a trial judge in most cases from having information about a defendant’s prior convictions when making the determination of guilt. Thus, judges make decisions about a complainant’s credibility without having a full understanding of her actions, including why she made the complaints and what led her to her recantation.

Strangulation in wife abuse cases is common, difficult to detect and a known precursor to the use of lethal violence. In one study, 68 per cent of all battered women who sought emergency medical attention had been strangled by their male partners. Another study of the emergency records of 1,000 women who had been strangled by their partners found there were no visible or photographable markings to the neck on 85 per cent of the women. Non-fatal strangulation is a known risk factor for lethal violence. Therefore if someone survived strangulation by a partner, steps to prevent violence from escalating must be taken.

In light of these very real dangers, perhaps it is time to reconsider the evidence rules, especially when a recanting complainant has experienced serious repeated violence at the hands of the same defendant. It will be interesting to see if the Supreme Court will contextualize the complainant’s evidence in light of JA’s previous convictions.

But should the Appeal Court’s decision and JA’s arguments find purchase with the Supreme Court, we can expect to see more prosecutions in cases involving strangulation thwarted by claims that “we were just having fun.”

Karen Busby is a law professor at the University of Manitoba. She provided assistance to the Women’s Legal Education and Action Fund (LEAF) in preparation of its brief to the Supreme Court of Canada in the JA case, but the views expressed in this article are hers alone and should not be attributed to LEAF.

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Can you consent to sexual activity while sleeping?

Can you consent in advance to sexual activity while unconscious?

Is there even such a thing as advance consent? Should there be?

What about in a domestic violence context?

The Supreme Court will be considering these questions when the J.A. case is argued next week. LEAF has intervened in the case to argue these important issues.

Learn more here:

http://www.nationalpost.com/todayspaper/Autonomy+Abuse/3756825/story.html

Read the trial decision here:

http://www.canlii.org/en/on/oncj/doc/2008/2008oncj195/2008oncj195.html

Read the Court of Appeal decision here:

http://www.canlii.org/en/on/onca/doc/2010/2010onca226/2010onca226.html

Read the sentencing decision here:

http://www.canlii.org/en/on/oncj/doc/2008/2008oncj624/2008oncj624.html

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