Today’s release from the Supreme Court of Canada, R. v. J.A., 2011 SCC 28 is a real head-scratcher. The facts are both titillating and fascinating.
J.A. and his long time partner, K.D. were a sexually explorative adult couple. On several prior occasions they had experimented with the delicate art of erotic asphyxiation — in which one partner chokes the breath out of the other to heighten the sexual pleasure associated with a lack of oxygen to the brain. Now, during my recent trip to Ecuador’s Cotopaxi Glacier 5000 metres above sea level I don’t recall any sexual stirrings as my oxygen-starved brain struggled to direct one plodding foot in front of the other through the waist deep snow but hey, to each his own. The point is, there was no dispute that K.D. consented to the choking as part of the couple’s sexual play and both acknowledged in advance that unconsciousness was a possible (if not likely) outcome of their conduct. Sure enough, K.D. passed out. She awoke three minutes later with her hands tied behind her back and a dildo in her anus. K.D. gave conflicting evidence about whether this was the first time J.A. had taken such back-door liberties but she did agree that within ten seconds of regaining consciousness, he removed the dildo and the two proceeded to have consensual vaginal intercourse while she remained bound.
This little sexual experiment remained a private moment between the couple until two months later when K.D. decided to report the incident to police. She conceded that she consented to the choking but drew the line at waking up with a sex toy lodged in her anus. J.A. was charged with sexual assault but at the trial, K.D. recanted her allegation explaining that she made up the criminal complaint because J.A. had threatened to seek sole custody of their young son. Despite this, the trial judge convicted J.A. only to have the conviction set aside later by the Ontario Court of Appeal.
Enter the Supreme Court of Canada tasked with the intriguing question of whether a person can provide ‘advance consent’ to sexual acts that may occur once the person is unconscious. In a display of Parliamentary deference I can only describe as bizarre, a 6-3 majority of the SCC ruled that although “the concept of consent Parliament has adopted may seem unrealistic”, the court was bound to strictly apply the statutory definition of sexual assault which requires that an individual be capable of revoking consent at any time during the course of the sexual activity. Since, by definition, once a person is rendered unconscious (albeit by a consensual act in anticipation of further consensual acts) that person is no longer physically capable of changing their minds and revoking the consent, legally the ‘advance consent’ evaporates making all subsequent physical actions on the unconscious person assaults (or sexual assaults as the case may be). Rather than the old rallying cry, “no means no”, our Supreme Court has now imposed a “yes means no” in cases where consenting adults have pre-scripted sexual fantasies that include unconsciousness. Presumably, this same logic could criminalize consensual bondage activity where one party is gagged and rendered unable to actively voice a change in consent.
While a full commentary on the majority’s reasoning is beyond the scope of this post, it is not creative hyperbole to say, as the three dissenting Justices did, that the Supreme Court has now criminalized “a broad range of conduct that Parliament cannot have intended to capture in its definition of the offence of sexual assault.” Did you wake your wife up this morning with a loving peck on the lips? Congratulations! You’re now a sexual predator. Did you stop by your child’s bed last night to kiss that cherubic little face? Welcome to the national child abuse registry!
Lest you think I’m engaging in a little reductio ad absurdem, the crown actually argued before the Court that actions like a “mild sexual touching that occurs while a person is unconscious” would be immunized from prosecution by the de minimis doctrine, only to be scolded by the Chief Justice who said “even mild non-consensual touching of a sexual nature can have profound implications for the complainant.”
All this legal jargon has given me a headache. I’m going to lie down and take a nap. But just to be clear, don’t try anything on me while I’m asleep.