J.A.: Is there "advanced consent" in Canadian law?

Unconscious women enjoy no sexual pleasure and exercise no autonomy.

Joanna Birenbaum, LEAF’s Litigation Director

I almost completely forgot that the hearing in J.A. was today.  Thanks to one of my students for the nudge.  Here’s a round up of commentary etc on this case, which asks whether “advanced consent” to sexual activity is possible under Canadian Criminal Law. The majority of the Ontario Court of Appeal said yes, it is possible, and cited personal autonomy as a value served by the rule.  The dissenting judge (LaForme J.A.) held that autonomy can’t be served by a rule which creates a situation in which consent cannot be revoked.  He would have held that there was no legal consent to sexual activity while unconscious.  LEAF, intervening, and the Crown (factum here), generally argue that there is no way to consent to an activity if during the activity it wouldn’t be possible (due to unconsciousness) to revoke that consent.  The appellant, J.A., (factum here) argues that the Court of Appeal majority got it right.  They raise some hypotheticals designed to make some people think twice (there were also a variety of hypos about surgery):

40. If consent to any form of sexual touching while unconscious is invalidated, it would constitute a sexual assault to rouse one’s intimate long-term partner with sexual touching, or even a kiss, even if the partner enthusiastically agreed to it. A person might consent to
being awakened with fellatio, but his partner would be labelled a violent criminal sex offender for fulfilling his wish. A person whose partner falls asleep post-coital in a sexual position commits a crime since, on the Appellant’s argument, any loss of consciousness is a
revocation of consent to be touched.

But of course, these delightful examples will, to many people, bear little resemblance to the allegations in this case:  (from the judgment of the Ontario Court of Appeal)

[1] Following a trial before Nicholas J., the appellant was acquitted of aggravated assault and of attempting to render the complainant unconscious to enable him to sexually assault her but convicted of sexual assault and breach of probation.

[2] The complainant on all of the charges was the appellant‟s intimate partner and the mother of the couple‟s son. She testified that she consented to the appellant choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. She explained that she complained to the police about the incident about a month and a half after it happened as a result of an argument with the appellant.

The Crown took the position that she couldn’t, in law, consent to these acts while she was unconscious. The trial judge agreed and also found that she in fact didn’t specifically offer consent to the sexual acts which occurred while she was unconscious (although the trial judge agreed she consented to being rendered unconscious).

Here is a link to LEAF’s Factum, and here’s at bit from the Post (surprise), I think they had the best – most thorough – newspaper article i read on the case (the  Vancouver Sun story was amongst the worst – compare them for “fun”).

The defendant already had more than two-dozen prior criminal convictions, including two for abusing K.D. On one occasion, he knocked the wind out of her with a punch to the ribs. Another time he kicked in the front door of their residence and called her a “whore, bitch, skank” while narrowly missing her head with a wine bottle.

American sites actually wrote about this (link to T. Clark-Flory in Salon).  Although for some it was just an opportunity to mock us for those ceremonial santa suits the SCC has.

I find this one trickier than I thought I would, because I do think we ought to be able to consent to a wide variety of things, even things which will occur whilst we’re unconscious.  It’s easy to get all tied up in knots, so to speak, about the difference between what happened to K.D. and the “sleeping kiss” scenario – but the “average” person’s professed distaste for certain practices isn’t what this is supposed to be about, right?  The thing that resolves any dilemma is that  I’m not quite naive enough to think that this is about the sleeping kiss, nor am I convinced that this is “like” surgery.   It’s about sexual assault, and the big lurking problem here (there are little ones too, but the big one) is alcohol.  Being choked into unconsciousness might be relatively outrè.  But drinking to the point of passing out is not.  It’s practically common.  And the extent to which the Ontario Court of Appeal’s judgment makes that situation even more precarious for women than it was before, by opening the door to a claim of “advance consent,” is a real concern.

LEAF’s factum does a much better job that I have of laying out these arguments.  I suppose I’m just making the point that where I might go on strict logic and where I think the law should actually go to avoid “unintended consequences”  I want are not on strictly parallel tracks here, and it’s an odd feeling.  I’m over it but if you’re still worried, try Tracy Clark-Flory’s arguments in Salon:

If the court rules in the negative, some say it will hurt couples’ freedom to experiment with kinky sex. The imagined scenario is one where a woman says that she wants her partner to choke her until she passes out and then have sex with her. But the BDSM community subscribes to the mantra “safe, sane, and consensual.” Erotic asphyxiation, especially to the point where someone passes out for an extended period, is not safe; it’s incredibly dangerous and potentially deadly. Everything in the S&M world — from safe words to “slave contracts” — are designed to avoid any uncertainty about consent. In this particular case, the accuser’s argument isn’t that she consented to being choked and sodomized while unconscious; the argument is that she consented to the former but not the latter. You could just as easily speculate that a conviction in this case would be a reaffirmation of the values of the BDSM community.

The SCC’s webcast isn’t showing up for this hearing, and I’d really like to see what happened there. And apparently no one tweets from SCC hearings.  This makes me question the utility of Twitter,because if I lived in Ottawa, surely I would try that.  On second thought, there is probably some kind of rule about it.  The webcase on this case isn’t working.   There’s a bit in this Globe article (but they don’t say which judge raised the “sleeping kiss” scenario):

One judge asked if it could be assault if a spouse kissed a sleeping partner without consent.Crown lawyer Christine Bartlett-Hughes acknowledged there must be some discretion applied as to whether a sexual act constitutes harm.

But Justice Rosalie Abella questioned the contextual approach.

“If the paradigm has been that consent includes the right to withdraw consent and that you cannot withdraw consent if you don’t know what is taking place because you are unconscious or asleep, that’s not a question of harm,” said Ms. Abella.

“That’s a question of being aware enough that you can continue to consent or not…”

But an unconscious person loses the ability to change their mind, said Ms. Bartlett-Hughes, and therefore loses the ability to consent.

“At that point, that person don’t have knowledge of how the activity is occurring,” she said.

J.A.’s lawyers argued that the couple had clear parameters established ahead of time with regards to their intimate relations and rules about how the woman would indicate her partner should stop.

“Surely, she must have contemplated that while she was unconscious she would not be able to revoke her consent,” said Howard Krongold.

Ms. Abella reflected that the current “no means no” definition of consent to sexual activity is about state of awareness.

“The whole construct is the consent continuing throughout the sexual activity,” she said.

The Attorney General of Canada and the Women’s Legal Education and Action Fund also appeared before the court to argue that advanced consent must not be considered a legal defence in sexual assault cases.

“The law must apply for the protection individuals who are there most vulnerable and here we are talking about people who are their most vulnerable,” said James Martin, a lawyer with the Attorney General’s office.

Here’s LEAF’s press release, prior to the hearing.  In general, I agree with this picture of the case.

November 5, 2010, Toronto -On Monday, November 8, 2010 LEAF will appear before the Supreme Court of Canada in the case of R. v. J.A. to argue that the Court should not introduce a novel concept of “advance” consent to sexual relations into Canadian law.

“The accused is asking the Supreme Court to turn the clock back twenty years” says LEAF Legal Director Joanna Birenbaum.  “A vital part of the meaning of consent is the right to say “no” at any point.  The accused is asking the Court to change the law so that a woman’s earlier “yes” continues, even after she becomes unconscious, extremely intoxicated, or otherwise unable to say “no”.  Any change in law to recognize “advance” consent would be dangerous and regressive.”

The case involves a woman who reported that she was sexually assaulted by her common-law spouse J.A. On the night in question, the accused strangled the complainant into unconsciousness.  The complainant estimates that she was unconscious for approximately three minutes.  When she awoke, she found herself bound and being anally penetrated with a dildo.  The accused says that the complainant consented “in advance” to the strangulation and the anal penetration that would take place while she was unconscious.  The complainant first reported to the police that she did not consent to the sexual activity.  Later, the complainant recanted. Her evidence at trial was described by the judge as a “typical cross-examination of a recanting complainant in a domestic matter.”

“This case is not about ‘S & M’ nor is it about women’s sexual autonomy or liberty. Unconscious women enjoy no sexual pleasure and exercise no autonomy. “Advance” consent makes a mockery of the legal and social understanding of consent” says Birenbaum.  “Instead, this case raises serious concerns about wife assault.  A doctrine of “advance” consent would offer dangerous abusers who strangle their partners a defence to otherwise potentially deadly criminal activity.  More generally, it will effectively revive the marital rape exemption.  The ongoing consent of wives or intimate partners will be assumed or implied from the nature of the relationship.”

LEAF’s intervener factum argues that any recognition of “advance” consent in law will have significant and serious implications for the lives and safety of women, particularly women who are already more likely to be targeted for sexual assault, such as intoxicated women, women with disabilities and Aboriginal women.   “The burden will shift to women to prove that they never gave “advance” consent”, says Birenbaum.  “This is totally unacceptable and in many instances will be a near-impossible threshold.  It is the man’s responsibility to ensure that his partner is actively consenting at the time of the sexual activity.”

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