I don’t typically mention the legal blog stuff I do here, but I think my discussion of the Supreme Court of Canada’s recent decision in R. v. J.A. – the “you can’t consent in advance to sexual activity taken place while you sleep” case – would be of interest to my greater readership, so here you go. (Feel free to comment here if you like, of course.)
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“…here McLachlin seems to almost be disposing with the need for mens rea in sexual assault altogether…”
That sentence there was sufficient.
I’m not mature enough for these sort of lofty discussions. I can’t stop giggling looking at the actual document of the ruling itself and thinking about how nobody got the Queen’s opinion about consensual butt-play but they stamped her name on it anyway.
Even worse than the decision was the fact that the case even reached the Supreme Court. If the victim says, “I overreacted, there was no crime,” there’s no reason to assume she’s under duress or insane, and they were the only two people in the room, I don’t see what business ‘Her Majesty, The Queen’ has inserting her sceptre into the privacy of their bedroom.
First, this is a tricky issue. For one, I generally support the ability for consenting adults to engage in sexual practices of their choice in private settings. However, I understand the court’s desire to assume an absence of consent without explicit consent in sexual cases.
Secondly, I agree with Cookie that it’s amusing to see the queen cited in such a case. I know that anymore it’s almost entirely symbolic, but I am not a fan of this particular symbolism: that, as Louis XIV purportedly said, the monarch is the state. Then again, I’m of the opinion that the modern world has no place for even symbolic monarchies.
Finally, I assume the use of initials rather than names is due to the sexual nature of the case. Am I correct?
I noticed that the Vancouver Sun article frames this topic almost entirely on the basis of gender. That kind of makes me sad, and not only because I’m from the area (Victoria).
The article portrays women as victims of abuse and rape, and entirely at the hands of men. Can’t men be abused? Can’t women be abused by women? The court’s decision doesn’t mention gender (Although that may have played a slight factor), and the tone of the reporter is very harsh. Both by condemning him for his previous offences and allegations, and by putting quotation marks around the word Consent.
I don’t know Canadian law, but it sounds insane to me. Especially since the supposed victim herself later revoked her complaint.
Do you suppose these arguments could be a veiled attempt to dissuade anyone from using choke-play/induced unconsciousness during sexual activity? You can’t consent to anything while unconscious so unconsciousness can no longer legally be used as a sexual device.
Somebody needs to tell Ray not to try that in Canada.
I wasn’t impressed with the Vancouver Sun article either. Seems like that argument could be used to support making any (or all) sexual activity illegal.
Does Canadian law have the option of a verdict of “what the hell is WRONG with you people !!?!!” ? ‘Cos that’s the direction I am tending towards.
For possibly the first time, I have a reason not to migrate to Canada if shit goes bonkers here in the states.
[blockquote]an individual cannot consent to sexual acts in advance of being rendered unconscious.[/blockquote]
Well when are they supposed to get consent? Afterwards? The whole concept of “consent” implies that it is granted prior to the act.
Prince Charming kissing Sleeping Beauty is now illegal in Canada. Great.
I’m not unhappy that “OH SHE SAID I COULD DO IT” isn’t acceptable, because it sounds like an open window to rape, which is hard enough to prove. I would think that a signed notarized document might suffice as proof, though, for those who wanted to prove that yes, this was completely consensual.
Of course, I’ve started to lean towards the opinion that sex should require a signed, written agreement. I don’t believe it would work out practically, for many reasons, but it would certainly clarify things on issues of consent. (With the disadvantage of making it extremely difficult to REMOVE consent if you change your mind at the last minute.)
This all just goes to show that not only is Dave Chappelle a comic genius, the man has good practical ideas as well. A little bit of paperwork before making the sex will save a lot of trouble afterwards.
If the victim says, “I overreacted, there was no crime,” there’s no reason to assume she’s under duress or insane, and they were the only two people in the room, I don’t see what business ‘Her Majesty, The Queen’ has inserting her sceptre into the privacy of their bedroom
I don’t know about Canada, but in Scots law, the decision to prosecute is independent of the victim. If the police and the prosecutor think a crime has been committed and that they have enough evidence to convict, then the prosecution can go ahead. It avoids the hassle of trying to determine what constitutes “duress” and also means that you can still go after certain crimes that might be difficult to get someone to come forward about – a pub fight, for example.
“Prince Charming kissing Sleeping Beauty is now illegal in Canada”
You do know the original story is about rape in the first place and the kiss is a Disney safe metaphor right?
The whole concept of “consent” implies that it is granted prior to the act.
Actually, it’s been the law for a long-time – and in many countries – that consent is a continuing act. That’s why you can say “No” at any time and the other party has to be stop. I doubt anyone would call that bad law.
I’m not entirely convinced on this decision, but the number of people getting worked up about not being allowed to stick their dicks into unconscious people is kinda freaking me out.
Bring, if the ruling were sufficiently narrow that acts of that nature were clearly all it applied to, I doubt the reaction would be nearly as strong.
And Trevel, as I understand it neither party in this case disputed that the act was consented to in advance, so I don’t see how a notarized document would change anything. And while I’m aware that rape is notoriously difficult to prosecute and sympathetic to the impulse to try to improve things, I don’t think it’s a good idea to criminalize innocuous behaviour just to make it easier to prosecute general crimes.
But you know, the more I think about it, the more I think that while the status quo brought about by this decision is wrong, the decision itself was right. If consent has to be continuously granted, you obviously can’t continue to do so while unconscious. If we want certain acts performed on unconscious people to be treated as consensual, there should be a law explicitly saying so, as there apparently is for surgery.
In other words, if Canadians think sexual acts on an unconscious person with prior consent should be legal, our elected representatives should pass a law saying so. And maybe even have a debate or something beforehand regarding what restrictions, if any, we want to put on that.
There is a big difference between giving you’re sleeping partner a goodnight kiss and putting something in his/her ass.
The fact that someone consented to such acts before doesn’t matter. A lot of people like to have sex with there partners but few would appreciate penetration while they’re unconscious.
I also dislike the comparison with medical surgery on unconscious people: a knife in you’re body might be physically more intrusive; emotionally it’s a different matter.
Imagine waking up in a hospital bed. What would you rather hear: “Someone penetrated you while you where unconscious’ or ‘it was medically necessary to do surgery’.” In the first example you where raped, in the other case a medical professional tried to save you’re life or health. The difference is quite obvious, I think.
Lastly the fact that this was prosecuted in the first place, while the woman recanted her statements. That’s a good thing. This happens often with domestic abuse: abusers would get away with there violence far more often if the prosecution couldn’t pursue a case on it’s own.
EeeeeeeeeeeeeeewwwwwwwwwwwwTheFuck:
A comparison, if you will. Consider an individual who wishes to be sexually dominated by their partner: traditionally partners engaging in this sort of play will use a safeword or code phrase to indicate when behaviour that they genuinely do not wish to engage in is taking place. However, it is entirely possible that a safeword might not be used until after an activity to which the potential complainant might not wish to consent has taken place – perhaps because they were distracted by another element of their sexual activity, or were unable to speak the safeword for whatever reason, or because the activity in question occurs too quickly for them to say it before it happens. After the activity takes place, the complainant speaks their safeword and their partner, who genuinely isn’t interested in sexually assaulting the complainant or doing anything nonconsensual, stops the sexual activity.
Okay here’s the thing: any BDSM community that isn’t a super creepy den of fucked up rapists WOULD CONSIDER THE SCENARIO YOU’VE SUGGESTED TO BE RAPE. If a sub is unable to talk the “safeword” has to be something they can convey via non-verbal means because a key and central aspect to properly doing BDSM is that the sub can at any and all moments remove their consent and ask to be cut the fuck down, in part because if that is not the case “legal sexual activities” can very VERY quickly become “death by misadventure” or “manslaughter” if the dom doesn’t have sufficient feedback from the sub to know when they’ve gone past the point where the sexual acts borders on being lethal/rape.
I know the law is frequently about ten steps behind common practice in a great many things, but I thought EVERYONE knew that healthy and sensible BDSM practice already thoroughly incorporates the notion that if a person can’t remove consent they aren’t fully able to consent, and that therefore doing things to someone when they are unable to remove their consent to any activities crosses the line from being a “consensual” act to being a “non-consensual” act.
TL;DR: common BDSM practice totally agrees with the R. Vs. J.A. decision, any lawyer who can’t conceive of the notion of a non-verbal “safeword” is an imbecile, if consent cannot be removed it is not present, and be careful when sticking things up people’s butts when they’re unconscious because that kind of things does tend to lead to recriminations.
Fred, my concern here is more that the decision removes consent-in-advance for any and all activity of this nature.
Say, for example, a dominant slaps a submissive. Let’s also say they’ve done this before as part of their sex play. Now let’s say that midswing, the submissive decides they don’t want to consent to the slap this time around, but because, well, midswing, they get slapped anyway. They say their safeword, “oh sorry” ensues, etc.
Under R. v. J.A., I think that qualifies as sexual assault. And that’s just nuts.
More to the point: I agree that BDSM that isn’t extremely careful about consent has the potential to become death by misadventure. My answer to that is: it is not the role of the state to enforce sexual safety in more-extreme-than-average sex play through criminal sanctions.
But that’s just it: there isn’t. Not from a legal standpoint. Both are sexual assault if unwanted.
What’s your point? Some people would appreciate it.
The point is that the potential for damage in both instances is high. Again, we’re talking about a person’s ability to consent, not which is worse.
Look, I’m not particularly libertarian, but saying that right of expression should be codified by the state is statist in ways that just blow my fucking mind.
As an aside, aren’t legal systems derived from english common law quite happy with saying “this decision applies to situations A through R and U through Z, but doesn’t apply in situation Q, except on the night of the second full moon of the year as defined by the gregorian solar calendar and only then if two clowns were present and able to act as legal witnesses” anyway? I don’t know why everyone’s acting like Canada has outlawed surgery and arguing edge cases all over the place like that matters.
The decision basically just means that for the people engaging in a priori “consensual” unconcious-butt-dildoings, the butt-dildoer is basically giving the unconcious-butt-dildoee the power to have the butt-dildoer imprisoned at any moment thereafter and should maybe bear that in mind before acting like a total butt-dildo during later child custody proceedings.
Except that it isn’t. Sorry, but: under Canadian law at present, if a complainant brings forth an accusation of sexual assault, a lot of burdens of proof shift to the defendant under the “no means no” standard, effectively forcing him to demonstrate that he had reasonable grounds to believe that the other person had consented, and it is decidedly not easy to demonstrate those reasonable grounds.
I am trying to find a polite way of saying that this is an incredibly stupid idea and am failing, so: that’s an incredibly stupid idea.
“But that’s just it: there isn’t. Not from a legal standpoint. Both are sexual assault if unwanted.”
Are they? I’m not familiar with the Canadian criminal code but where I come from an unwanted penetration falls legally under ‘rape’ while a unwanted kiss would fall under the more mildly offense of ‘sexual assault’. It’s also very unlikely that anyone would press charges for a kiss, given while they were unconscious, while penetration would be seen as far more violating by most people.
“What’s your point? Some people would appreciate it.”
The law cannot know beforehand which people would appreciate it. To prevent rape you have to make sure everybody is able to give consent. If they are unconsious they have no means of changing the’re minds.
“The point is that the potential for damage in both instances is high. Again, we’re talking about a person’s ability to consent, not which is worse.”
This is where we have our biggest difference of opinion. Criminal law is all about ‘what is worse’. For example: if you kick someone the fell to the ground an you break his ribs, you’re guilty of . If you break they’re ribs while performing CPR, you can’t be charged. In both cases no consent is given.
I would conclude that an individual cannot just give away they’re own rights: you can’t give consent to someone murdering you for example. Neither should you be able to give consent for unconscious penetration: you would be giving away your own inalienable right to say no, because you would be incapable to.
Notice that there is a big difference between sex (forced or unforced) and helpful medical practices. You cant simply compare the two even if they are physically just as intrusive.
That’s how statutory law works.
Common law is quite simple: find precedent, or extrapolate precedent from existing principles spelled out in similar situations to determine proper course where either there is no precedent or the judge thinks the existing precedent is bad.
Hence the concern. This is a statement of principles that’s basically negative about how consent operates.
And you don’t come from Canada. We have one crime: sexual assault.
In the second case, there is no mens rea – “guilty mind” – so there can be no crime. That isn’t about “what is worse” – that’s about “what constitutes a crime in the first place.”
You aren’t even coming close to making a case as to why.
G 127 – I’m assuming that they specifically mean that she consented to him putting something in her ass while she was unconcious.
If this is the case, should it still be illegal?
It’s a difficult question: but I see it like this:
If you’re having sex, for example the earlier mentioned s & m you’re constantly able to stop after the first unwanted action. You can’t prevent the first unwanted slap, but you can prevent a follow up. You can ask you’re partner to stop penetration. Once you’re unconscious you’re not able to ask someone to stop. A lot of people want to do sexual things beforehand, but revert their consent during intercourse. You can not be sure that consent would not be withdrawn, so you should restrain yourself.
Maybe if someone would give explicit consent to explicit sexual activity’s when they are unconscious, you could say they’ve given up the’re right to revert said consent. Personally I disagree with that.
I guess that’s where we’d have to agree to disagree – I don’t think it’s particularly right to tell someone they can’t have that done to them while they’re unconscious because it’s illegal. If they consent to it, and it’s safe and sane, and (Like the use of the buttplug) something that they -had- done before and were comfortable with, I don’t see that it should be illegal.
Regarding Canadian law, how significant is a precedent like this? Or more accurately how easy would it be for a judge to determine that this precedent isn’t valid or is being misused in another case?
In any of the exaggerated examples we can come up with where a suit is filed, is the burden on the defendant(‘s lawyer) to prove that the precedent doesn’t apply or can a judge say “that’s a bullshit comparison, move on”
Can you do a RIP post for James Arness? Gunsmoke is legendary.
G127,
You’re not from Canada, you’re not familiar with the Canadian Criminal Code, and you’re pretty clearly not a lawyer.
MGK is all those things. His concerns, clearly and consistently stated, are that the R. v. J.A. decision makes consent-in-advance impossible for all such sexual activity, and that it seems to eliminate proof of mens rea as a requirement for a criminal act — something that’s been (with few exceptions) a bedrock of Anglo-American legal systems since the Magna Carta.
Your arguments are failing to address those concerns. Indeed, they seem to fail to appreciate why they would even be concerns. Your position seems to be that because some people would not willingly consent to sexual acts while unconscious or asleep that it it is impossible for anyone to do so, and that it is therefore necessary for all such acts to be criminal ones. That position is weapons-grade crazy, and you’ve offered nothing to justify it.
Of course, I’m quite prepared to discount out of hand any argument made by a person who thinks “the’re” is a word. Jesus fuck, seriously?
Wsmcneil,
So we’re down to arguments from authority then? Well… a lot of smart people on the supreme court apparently disagree with MGK.
As for my spelling error: I’m not a native English speaker, so clearly I’m to stupid in you’re eyes to know anything.
Third: rape is an international issue. Countries will have different views or laws, but are dealing with similar cases. I occasionally follow this blog and found it an interesting case. I simply didn’t agree with the author. I had no idea that that could be so offensive to you.
Full disclosure: I have indeed just a basic knowledge of the Anglo-American legal system; the Netherlands, where I live (and work in the judicial sector) law is still based largely on roman law and the Napoleonic Code. I had no idea this blog was against contributions in the comment-section from foreigners; I will remember it.
Still, you might try to learn to ‘respectfully agree to disagree’ with an opponent. But of course it’s far more easy to call people with different views ‘weapons-grade crazy’ and discount they’re arguments without addressing them.
I wish you a pleasant day, regardless.
A concern in the decision, and indeed in one or two of these comments, seems to be, “It would be too hard to prove consent.” I don’t see how it’s harder. I don’t see how someone could think it would be harder: it still comes down to the Crown alleging that there was no consent, and the defendant saying that there was. Besides, how are you going to prove unconsciousness?
The idea that surgery is legal only because of special laws is even more baffling to me. Surely those laws exist to protect surgeons from exactly the sort of extraordinary bullshit that the defendant in this case claims to have experienced, not because any life-saving appendectomy would be by default totally illegal as soon as the gas started flowing but for the special protection of Parliament.
Seriously: if I hire you to paint my house, and then half way through the job I decide that I don’t like you, I’m allowed to kick you out. You can’t carry on painting. On the other hand, if I instead wander off and leave you to your work, no Supreme Court judge would say that you became a trespasser as soon as I was physically incapable of supervising you.
Do I have to fill in every damned allegorical detail here, and say that it’s a cash job with no contract signed, and argue over whether it’s significant who’s supplying the paint, or is my point clear?
MGK: Not knowing the state of the applicable (if any) laws in Canada, I have to wonder |how this decision will affect/how you think this decision may affect| consideration of sexual assault as it relates to inebriation/drug influence and the ability to consent.
(note: I’m not legally educated, nor have I read the actual decision in question, so if they actually covered that then quotation of same is sufficient as a lead.)