Published On Sun May 29 2011
By Rosie Di Manno
Columnist
“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.’’
Over to you, House of Commons. No? Not in the mood? Maybe we should dim the lights.
For its part, the Supreme Court of Canada has spoken via a 6-3 decision released Friday on the apparently pressing matter of sex whilst unconscious, bound and with a dildo shoved up one’s rectum.
It’s been deemed sexual assault. And aren’t we all glad that’s been semi-cleared up?
Writing for the majority, Justice Beverley McLachlin did note: “In some situations, the concept of consent Parliament has adopted may seem unrealistic.”
That’s saying a mouthful.
Technically, making amorous with a snoozing partner could be equated to anal penetration with a sex toy on a nonsentient partner, if this decision were taken to its illogical conclusion. And trust me, there’s always somebody ready to seize an unintended legal loophole.
The Supremes, unlike their provincial appeal court cousins, are not compelled to hear every case that’s brought forward for their cerebral consideration. They don’t even have to give a reason for declining when an individual seeks leave to appeal from the highest court in the land.
But when a lower appeal court decision hasn’t been unanimous — as was the result in a messy piece of business between a couple known only as J.A and K.D. — the court of last judicial resort is obligated to revisit the dispute upon petition.
The mink-trimmed Court, which undoubtedly has many important matters on its plate, thus weighed in with precedent-setting gravitas on the case of a woman who was buggered by her husband while she lay … well, not sleeping exactly, but lights-out from erotic asphyxiation, having given her husband permission to choke her, bind her and impale her with a dildo.
Then the lady retroactively withdrew consent, only to change her mind again at trial.
Yes means no, by the Supreme Court’s reckoning, even when the complainant has said yes-no-yes and admitted under oath that the charge was provoked — two months after the incident — by a custody dispute between the couple.
Or, as the majority decision on Friday put it: “Yes in fact means no in law.’’
A perfectly contradictory statement — the law excels at them — yet a concept that makes sense in circumstances pondered by the Supreme Court before: A woman’s right to withdraw consent at any time during a sexual act and the legal presumption that no consent can be given when an individual is unaware — asleep, blotto or unconscious.
That seems obvious enough.
But those circumstances were not quite applicable in these circumstances, as the Ontario Court of Appeal found when those tall foreheads reversed the conviction last year.
Indeed, the convoluted details were so specific to this couple’s relationship that there appears no good rationale for investing it with Supremo consequence for all when appeal was sought by the Crown and the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.
A basic rule of thumb is that bad cases make bad laws.
It was never about the unpleasantness of the sex, or that the man had taken advantage of a partner who was unconscious. Rather, the charge was sought as a means to another end entirely — deflecting his threat to seek sole custody of their child by having him charged with aggravated sexual assault — which the accuser subsequently regretted and recanted.
Due to a publication ban, the couple is known only by initials. One night in 2007, as they moved from the living room couch to the bedroom for lovemaking episode, K.D. agreed to being erotically asphyxiated — choked to the point of unconsciousness, which some people apparently find heightens the sexual experience.
I am certainly not here to judge anybody’s sex life when both parties consent to the activity. Neither should the court.
K.D. gave prior consent not just to the choking but also — the defendant’s lawyer argued and the complainant later acknowledged — to the insertion of a dildo while she was unconscious. “At the moment, I just went with it, in the spirit of experimentation,’’ she testified.
By her own estimation, K.D. was unconscious for about three minutes and, when coming to, discovered she was being anally penetrated by the dildo. It was removed some 10 seconds later and the couple then had vaginal sex. There was no evidence the woman ever did anything against her will, that permission was revoked by words or conduct, that the husband had failed to ascertain or misunderstood that consent had been given, or that consent was somehow “vitiated’’ by intentional infliction of bodily harm.
Indeed, the trial judge who sent the husband to prison for sexual assault acquitted him on charges of aggravated assault and assault causing bodily harm, concluding the wife had agreed to the choking and didn’t suffer bodily harm “since the unconsciousness that she experienced was only transient.”
Yet she convicted on sexual assault because K.D. could not “legally consent to sexual activity that takes place while she’s unconscious.”
The Supremes concurred on that crucial point, on the basis of Parliament’s existing definition of consent — requiring the complainant to be conscious throughout the sexual activity in question. “Parliament’s definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious.”
This concept “produces just results in the vast majority of cases and has proven to be of great value in combatting stereotypes that have historically existed,” the majority decision emphasizes.
But Justice Morris Fish, in writing the dissenting opinion, makes an emphatic point: “It is a fundamental principle of the law governing sexual assault in Canada that no means ‘no’ and only yes means ‘yes.’ K.D. said yes, not no …
“The provisions of the Criminal Code regarding consent to sexual contact and the case law were intended to protect women against abuse by others. They aim to safeguard and enhance the sexual autonomy of women, and not to make choices for them.”
K.D. made that choice and expressed it clearly. But the Supreme Court — essentially infantilizing the woman — has ruled otherwise.
And bugger if I can understand why.
Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.