Monday, September 5, 2011

Supreme Court’s Sexual Assault Ruling a Step back for Canadians

In its May 27, 2011 judgment Canada’s Supreme Court ruled that a person cannot give advanced sexual consent. This case seems groundbreaking on many levels, but the majority in the 6-3 decision got it wrong.

Writing for the majority, Chief Justice Beverly McLachlin stated that a person needs to be conscious to give consent at the time of the sexual activity, as well as maintain consciousness throughout such activity: “the issue… is whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious.” She goes on to note that “parliament’s definition of consent… 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.”

I find there to be several errors and miscalculations in this decision.

“Consent” is premised on a person’s ability, while of sound mind, to agree or object to something. It rules out acts of coercion and ensures that a person of his or her own free will can use his or her judgment to agree or disagree. We know that a person who is mentally disabled, under the age of 16, or intoxicated cannot give consent.

This is congruent with the Criminal Code: consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question.” (s. 153.1(2)). The Criminal Code further notes that a person’s consent is not valid if extorted by force, fear of bodily harm, or if the complainant cannot consent due to mental disability (s. 159 (3)(b)).

Likewise, the intent of the sexual assault law is obviously to prevent strangers from sexually accosting others. That is self-evident in its title. But sexual assault laws seem incredibly ill-equipped to deal with long-term couples voluntarily exploring their sexuality, as we saw in this case. This was not a run-by molestation; this was a couple exploring their sexuality. They explicitly knew such exploration would result in the female becoming unconscious as part of their shared fantasy, and the male subsequently continuing intercourse. It was not as if this was an abusive boyfriend forcing himself upon his girlfriend; they both knew what they were getting into, and verbally gave each other their consent to continue after the state of unconsciousness.

Don’t get me wrong: if the couple had not expressed that their consent continued after the state of unconsciousness, any sexual activity after that point should have been considered sexual assault, if not rape.
Indeed, consent alone is not the real issue here. The woman admitted at the trial that she did consent to being unconscious and the sexual activity which continued thereafter. The question, then, turns to whether a person can give advanced consent – consent for something that is going to happen in the future.

I cannot fathom why a person cannot give such advanced consent, but Chief Justice McLachlin’s rationale is that “consent [requires] a conscious, operating mind, capable of granting, revoking, or withholding consent to each and every sexual act.” In other words, although the couple explicitly granted consent to continue after the point of unconsciousness, apparently they could not give such consent in the first place.

McLachlin raises the concern that “finding that such a person is consenting [while unconscious] would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.” Her concerns are clearly based on the premise that such unconsciousness was caused by drugs, alcohol, mental incapability, or violence, and not in fact by two consenting adults who specifically foresaw such unconsciousness taking place and gave advanced consent anyway.

Providing advanced consent when both parties understand that consent cannot be given at the time of the act is perfectly reasonable. It demonstrates forethought that the couple knew what would happen and planned accordingly.

Contrary to McLachlin upholding women’s autonomy and ensuring they are not sexually abused or taken advantage of, her judgment as the opposite effect: now women have been told that there are certain sexual acts off limits to them which cannot be performed even if both parties consent.

The worst part of this case is that the woman clearly abused the legal mechanisms to punish her boyfriend. It was only after the couple had a fight on an unrelated topic two months later that the woman reported the “assault” to police. If this isn’t a clear-cut case of a woman using the law as a weapon against her partner, I don’t know what is. This case should have never progressed past the trial level.

It seems the courts have yet again intruded into defining what should be an intimately private act. Regardless of what acts they were performing, this couple gave each other the consent to commit the acts they were performing as well as the resulting sexual activity afterwards. After all, the very appeal of erotic asphyxiation is that it continues after a person is unconscious. Admitting that the couple did give consent but then finding that consent could not be given flies in the face of the very act they were voluntarily committing together. The courts have no right to determine what can or cannot happen between two sexually consenting adults.

Although this was an extraordinary case, it will clearly have future ramifications. However, I predict this will be a formal ruling that quickly falls into disuse as it’s simply not in touch with today’s society.