No consent to sex when a woman is unconscious

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LEAF arguments accepted by majority of Supreme Court of Canada

May 27, 2011, Toronto -- The Supreme Court of Canada rendered its decision today in the case of R. v. J.A., a case in which an accused charged with the sexual assault of his unconscious common-law spouse argued that the complainant had consented to the sex in advance. LEAF intervened in the appeal to argue that there can be no such thing as advance consent to unconscious sex. Consent must always be active, voluntary, ongoing and contemporaneous with the sexual act. In a 6-3 decision, the Supreme Court of Canada agreed.

"The Court reaffirmed the last 20 years of equality-driven developments in the law of sexual assault" explains LEAF Legal Director, Joanna Birenbaum. "The decision confirmed what is already clear in the Criminal Code and what is, or should be, common sense. When a woman is unconscious she is not sexually available. Any sexual act perpetrated on an unconscious woman, who is unable to say "yes" or "no", is assault. This is a simple proposition. And it is uncontroversial."

The facts of the case involve an abusive spouse who strangled the complainant into unconsciousness and, while she was unconscious, bound her and penetrated her anally with a dildo, at which point the complainant came-to. The accused argued that the complainant had consented to the strangulation and had consented "in advance" to the sexual acts performed on her body while unconscious. The trial judge convicted the accused of, among other charges, sexual assault. The Ontario Court of Appeal overturned the conviction on the basis that the complainant had consented in advance to the sexual acts performed on her while unconscious.

The Supreme Court of Canada restored the conviction and held 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."

"This decision offers important protection for women who are most vulnerable to sexual assault" explains LEAF counsel Elizabeth Sheehy. "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."

Birenbaum adds that "the decision also affirms the law, taken for granted by most if not all Canadians, that a wife can say "no" to sex with her husband. Consent cannot be assumed from the spousal relationship. The fact that a spouse, or any woman, said "yes" at some point in the past, is not a perpetual consent to sex. Sexual partners have an obligation to ensure consent on an ongoing basis. Women must always have the right to withdraw consent at any moment. Withdrawal of consent is simply not possible when a woman is unconscious."

LEAF's intervener factum can be found here.

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