[fredr123]

The Supreme Court released a decision today (R. v. J.A.) considering the nature of consent in sexual relations.

National Post Article: http://news.nationalpost.com/2011/05...yxiation-case/

Text of the decision: http://scc.lexum.org/en/2011/2011scc28/2011scc28.html


The facts of the case seem straight out of a fotze post.

One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long‑term partner K.D. and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for “less than three minutes”. She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before. When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting a dildo into her anus. K.D. gave conflicting testimony about whether this was the first time J.A. had inserted a dildo in her anus. J.A. removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse. When they finished, J.A. cut K.D.’s hands loose.

K.D. made a complaint to the police two months later and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred. She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son. The trial judge convicted J.A. of sexual assault. A majority of the Court of Appeal allowed the appeal, set aside the conviction and dismissed the charges against J.A.

The nub of the matter? According to the National Post:

But the chief justice said that in cases that involve sexual acts, the Criminal Code requires individuals to ensure they have consent before proceeding.

“It thus is not sufficient for the accused to have believed the complainant was consenting,” she wrote

“He must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question. This is impossible if the complainant is unconscious.

But lo, there was a dissenting opinion:

In a dissenting opinion, Justice Morris Fish suggested that McLachlin’s approach goes beyond what Parliament intended.

“Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately,” Fish wrote.



“Prior consent, or even an explicit request — ‘kiss me before you leave for work’ — would not spare the accused from conviction.”