Sexual Assault and Consent

[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.”

[VladtheImpaler]

The government has no place in the bedrooms of the nation...
By this ruling virtually anyone engaging in S&M would be guilty of sexual assault unless the "bottom" completes a detailed consent questionnaire. A terribly intrusive decision, given the nature of the relationship, and the fact that the complaint was motivated by divorce/child custody dispute.

[nik-]

People who admit to threatening or going through with sexual assault or rape allegations in order to be vindictive or to extort should be put in prison.

[Ark2]

HAHA... so if my girlfriend wakes me up by giving me a blow job (something that I could not have consented to because I was asleep) then I can charge her with sexual assault. Hilarious

[IliketoPuck]

^ you could threaten that she needs to give you more or you will go to the cops.

[troutman]

In the Calgary Sun today . . .

Man who raped wife handed 33-month sentence
http://www.calgarysun.com/2011/05/26...nth-sentence-2

“If an accused acting honestly perceives his partner’s sexual conduct to be ambiguous or unclear, he ... must abstain or obtain clarification on the issue of consent,” Moreau said in rejecting his defence he believed she was consenting.

“The existence of the marital relationship ... does not entitle a spouse to assume consent unless otherwise advised.”

[fredr123]

Originally Posted by troutman

In the Calgary Sun today . . .

Man who raped wife handed 33-month sentence
http://www.calgarysun.com/2011/05/26...nth-sentence-2

“If an accused acting honestly perceives his partner’s sexual conduct to be ambiguous or unclear, he ... must abstain or obtain clarification on the issue of consent,” Moreau said in rejecting his defence he believed she was consenting.

“The existence of the marital relationship ... does not entitle a spouse to assume consent unless otherwise advised.”

I saw that this morning too and felt bound to look up the facts of that case. Here is the trial judge's decision finding the husband guilty: http://www.albertacourts.ab.ca/jdb%5...qb0328cor2.pdf

Based on the description of facts in that case, the husband pulled up behind his wife on several occasions and, after being told "no, I don't want to have sex with you" proceeded to insert his penis into her vagina and thrust until completion. Multiple times. Over several years.

Also, the accused kept a journal and noted the days that they had "rape sex."

Pro tip: If you're going to do something illegal, don't keep detailed notes of your exploits.

While interesting (and I can't imagine how uncomfortable the testimony at trial must have been for the complainant) this is a bit different than what occurred in the Supreme Court case.

[VladtheImpaler]

Fata. Given some of the activities I have engaged in, I am very, very lucky my 2nd wife and I had an amicable split. Otherwise, I'd have to lam in to Russia...

[Traditional_Ale]

So how long until we have have to register our whips and chains in the Sex Toy Registry? Will I have to take a safety course?

[Locke]

Originally Posted by IliketoPuck

^ you could threaten that she needs to give you more or you will go to the cops.

Blackmail all around then?

[fredr123]

Originally Posted by nik-

People who admit to threatening or going through with sexual assault or rape allegations in order to be vindictive or to extort should be put in prison.

Even where the complainant admits to having fabricated the story or only reported the events to get back at the accused, the police and the Crown are incredibly reluctant to accept that explanation and withdraw the charges. Complainants have recanted often enough due to pressure and coercion from the accused that police and the Crown look upon any recant as dubious.

[Huntingwhale]

My blow up doll will never rat me out.

[Yasa]

Originally Posted by Huntingwhale

My blow up doll will never rat me out.

But she's definitely cheated on you.

[VladtheImpaler]

Reading this decision, as a lawyer, I am frankly disgusted that the Crown felt it was necessary to run this all the way to the SCC over the issue of "did a brief period of unconsciousness nullify the prior consent of having a dildo inserted in the complainant's bottom?". Where does common sense enter into the legal process?

[mykalberta]

What, sorry I missed that, I was to busy reading the story

How can one be convicted of Sexual Assult just based on the testimony of someone else 2 months later without any evidence?

Is there a different determination of guilt in Sexual Assult cases.

[WhiteTiger]

Originally Posted by VladtheImpaler

Where does common sense enter into the legal process?

Hahaha! It hasn't yet, and doesn't look like it'll be making an appearance any time soon...

[Kybosh]

It's too bad all case reports aren't as hot.

[fredr123]

The trial court's reasons for the conviction are here: http://www.canlii.org/en/on/oncj/doc...08oncj195.html

The Ontario Court of Appeal's reasons for overturning the conviction are here: http://www.canlii.org/en/on/onca/doc...10onca226.html

[anyonebutedmonton]

How messed up is that poor son of theirs going to be...

[IliketoPuck]

Originally Posted by Locke

Blackmail all around then?

Is it still blackmail if she likes doing it? Wait...., is she blackmailing Ark?