Sex while unconscious -- Advanced Consent

[Guest W***ledi*Time]

A person can consent in advance to having sex later, while unconscious, according to a split decision of the Ontario Court of Appeal. The ruling cites a similarity to the case of a person giving permission for a surgeon to perform an operation, knowing they will be anaesthetized.

 

Report by Tracey Tyler for The Star, 26 Mar 2010:

 

http://www.thestar.com/news/gta/crime/article/786137--people-can-consent-in-advance-to-sex-while-unconscious-appeal-court-rules?bn=1

Their safe words were ?Tweety Bird,? meant to indicate their admittedly kinky sexual behaviour should stop.

 

And they are what the common law wife of a man known as ?J.A.? said she uttered sometime after waking from unconsciousness and finding herself being sodomized by her partner, who was later convicted of sexual assault and breach of probation.

 

On Friday, the Ontario Court of Appeal overturned those convictions in a 2-1 decision that left judges divided over the issue of whether a person can consent in advance to sexual activity that is expected to occur while unconscious.

 

In a dissenting opinion, Justice Harry LaForme said Parliament, through ?no means no? provisions in the Criminal Code and other legislation, has expressed ?its clear view? that advance consent to sexual activity under those circumstances is impossible and any consent by J.A.?s spouse ?was negated when she was choked into unconsciousness.?

 

But Justice Janet Simmons, writing for the appeal court majority, said permitting a person to consent in advance to sexual activity expected to occur while unconscious or asleep is entirely consistent with the principles of human dignity and autonomy.

 

?Where a person consents in advance to sexual activity expected to occur while unconscious and does not change their mind, I fail to see how the Crown can prove lack of consent,? Simmons said, with Justice Russell Juriansz agreeing.

 

J.A.?s spouse, whose identity is protected by a court order, said she and her partner were into sado-masochistic activity that included bondage and had attempted ?erotic asphyxiation? in the past as a means of heightening sexual excitement.

 

She also said they had discussed the possibility of anal intercourse as a way of ?spicing up? their five-year relationship, although what happened that night in May of 2007, when she awoke to find herself on ?all fours? and being penetrated with a penis-shaped device, was ?quite spontaneous.?

 

At J.A.?s trial in 2008, the defence reminded the court of former prime minister Pierre Trudeau?s famous declaration that the state has no place in the bedrooms of the nation. The Crown argued that for consent to sexual contact to be legally valid, a person must be consenting at the time the sexual activity occurs. The Crown?s position was accepted by Justice Dianne Nicholas of the Ontario Court of Justice, who said that under the circumstances, the binding of the complainant?s hands and her sodomization by J.A. was ?dehumanizing? and degrading.

 

But in Friday?s decision, Simmons said there is no sense in the Crown?s argument that consent to sexual activity must be given contemporaneously. A competent person, for example, can consent to surgery which is to occur while unconscious and not in a position to withdraw consent once anaesthetized.

 

As for J.A.?s spouse, she changed her story after she took the witness stand. She originally went to police and gave a videotaped statement complaining he had assaulted her without her consent while she was unconscious.

 

In court later, she said she had consented to the acts and that she went to police because she was angry with J.A. because she believed he was going to leave her and seek custody of their 2-year-old son.

[Ragnaglar 440]

Interesting story especially with the notion of previous consent

Posted via Mobile Device

[etasman2000 15994]

Interesting story especially with the notion of previous consent

Posted via Mobile Device

 

Too much focus on previous consent and not enough on essentially a false report of assault.

 

The ?quite spontaneous? penetration would have been a violation of the standard bdsm protocol.

 

Goes to show that even between spouses if you are engaging in bdsm best have a written contract and maybe even a spotter.

[capitalman 3861]

It says they were into erotic asphyxiation in the past, but the articles doesn't exactly say how or why she was unconscious this time? She AWOKE on all fours with an object in her ass....was she sleeping? Stoned? Choked until she passed out?

 

Kinda fishy...

[CookiesNScream 363]

Crazy! I just re-read it!

[Suzirider 737]

How can you say "tweety bird" (stop) when you're unconscious ?

I don't believe in one sided sex, sounds more like rape to me !

[Guest gagagaga]

my safe word is "more"

[Guest S***e]

It would seem to me that once a person who has consented to participating in something (a sex act) becomes unconscious or comatose the consent would no longer be valid with the default being a "no" until rational thinking is restored. But, if I'm in the hospital operating room and have provided written consent for surgery, I don't expect or want to be brought back to consciousness to verify my permission for the procedure. (Hopefully, they won't amputate the wrong limb or remove the wrong body part, however.)

 

Spike

[CookiesNScream 363]

At least if you consent to a surgery you know you aren't going to wake up half way through!

[etasman2000 15994]

At least if you consent to a surgery you know you aren't going to wake up half way through!

 

I wish this was true all the time......

[capitalman 3861]

The thing is, being unconscious then coming to while having sex is a really big rush for some people....so if the girl agreed to this before what's wrong with that?

[Mikeyboy 27133]

The thing is, being unconscious then coming to while having sex is a really big rush for some people....so if the girl agreed to this before what's wrong with that?

 

Absolutely nothing.......until she denies that she agreed to it. My lawyer friends response to everything I say is "Get it in writing!" ;-)

[cat 262460]

Games played between two people are usually best left between the consenting adults. There are always risks of miscommunication when lovers are conscious, but if someone is unconscious then it is a problem. That's why it is so important to have the ground rules laid out in advance.

 

What I find disturbing is that they had only discussed anal sex prior to this experience. Many men are not aware of the damage that it can do if performed incorrectly and most men take their cues from mainstream porn which can be very dangerous. The damage sustained during anal sex can have long term repercussions and when a person is unconscious they are not in a position to say when it is painful. While the colon is a resilient organ, there can be permanent damage that requires surgery to correct and if the sphincter is torn it can cause anal leakage until it is surgically corrected. Even after surgical reconstruction there is no guarantee that it will perform as it should. I have a girlfriend who was a stock Vivid girl who was hospitalized for 2 weeks after shooting an anal film that was required by her contract. It was insane and she still has issues a decade later.

 

IMO, sodomizing this woman is where this situation when left and I find this ruling disturbing.

 

cat

[Guest W***ledi*Time]

Like most cases, the actual facts behind this are impossible to know for sure. The news story, inevitably, loses much of the secondary detail of the judgement. The complainant's testimony on the issue of prior anal penetration (and other things) was self-contradictory: The trial judge believed one version -- namely, that there had never been anal penetration before. The appeal court, however, considered her contradictory testimony on this issue in a different light than did the trial judge. Extracts from the appeal judgement (my bold):

In cross-examination, the complainant initially confirmed that the appellant had

never

previously inserted a dildo in her anus, but indicated she did not object to it ...

 

However, after being confronted with a portion of her evidence at the appellant's bail hearing, she adopted her prior testimony that anal penetration with a dildo

had

happened once before and confirmed that she consented ...

Q.

Did you at any time give him permission to do this

[penetration in the anus with a dildo]?

A.

I had

, when we were doing all this kind of experimenting,

I mean, we had basically laid out beforehand what was

allowed and what was not allowed ....

She testified that she consented to the appellant choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. She explained that she complained to the police about the incident about a month and a half after it happened as a result of an argument with the appellant.

 

During the course of the trial, the trial Crown abandoned an application to have the complainant's videotaped statement to the police, in which she claimed that she did not consent to the sexual activity, admitted for the truth of its content.

http://www.ontariocourts.on.ca/decisions/2010/march/2010ONCA0226.pdf

[belladonna 279]

ugh.... some men repulse me

[massivewanker 100]

the real victim here is the man for having false charges brought against him that woman should go to jail but it seems like it is ok to tarnish someones name out of spite

Posted via Mobile Device

[Apex2006 1071]

A person can consent in advance to having sex later, while unconscious, according to a split decision of the Ontario Court of Appeal. The ruling cites a similarity to the case of a person giving permission for a surgeon to perform an operation, knowing they will be anaesthetized.

 

 

 

Why would you want to have sex with a person that is unconscious. That sounds like as much fun as sex with your wife!

 

LOL

 

But why an unconscious person?

 

Apex

[ekimout 188]

I guess it takes all kinds to make the world go around, but please. Sex with an unconscious person? Really? I know we are not supposed to judge, but really? How much fun could that be? Sorry, not for me.

[Mikeyboy 27133]

Why would you want to have sex with a person that is unconscious. That sounds like as much fun as sex with your wife!

 

 

Thats funny......:sm185:

[Guest W***ledi*Time]

The appeal in this case will be heard by the Supreme Court of Canada, commencing Monday 8 November 2010.

 

Janice Tibbets reports for Postmedia News:

 

http://www.montrealgazette.com/news/Court+judge+advance+consent/3786976/story.html

Can you consent to sex when you're voluntarily choked unconscious?

 

The Supreme Court of Canada will consider on Monday whether an Ottawa woman, who had admittedly kinky sex with her longtime partner, was a victim of sexual assault when he sodomized her against her will

[note: see my previous post on this issue; the appellate court found otherwise]

while she was passed out, even though she had agreed to asphyxiation.

 

The case, which will test the sexual autonomy of couples behind closed doors, centres on whether a person can give "advance" consent to sex, a prospect that a leading women's group says would roll back Canada's sex-assault laws about 20 years. "A vital part of the meaning of consent is the right to say 'no' at any point," said Joanna Birenbaum, legal director of the Women's Legal Education and Action Fund.

 

"Any change in law to recognize 'advance' consent would be dangerous and regressive."

 

The Ontario Crown is bringing the appeal to the Supreme Court after the province's appeals court ruled this year that a man, identified only as J.A., was not committing sexual assault when he and his on-again, off-again partner of seven years, J.D., engaged in "erotic asphyxiation" one night in May 2007.

 

"To hold otherwise would be to deprive individuals of their personal autonomy by limiting their ability to make choices about who can touch their body and in what circumstances," said the majority decision.

 

The case reaches the Supreme Court more than a decade after it ruled that there is no such thing as implied consent.

 

In written legal arguments, J.A.'s lawyer invokes the words of former prime minister Pierre Trudeau, who in 1968 famously declared that "there's no place for the state in the bedrooms of the nation ... what is done in private between adults doesn't concern the Criminal Code."

 

K.D. took her complaint to Ottawa police two months after the alleged assault, when she was seeking custody of the couple's toddler.

 

At trial, she testified that she agreed to be choked unconscious to "spice up" their sex life. After being knocked out for about three minutes, she came to and discovered J.A. had inserted a dildo in her anus, an act she said she had not agreed to in advance. She later recanted her testimony.

 

J.A. was originally sentenced to 18 months after an Ottawa judge said it was against the law to have sex with an unconscious person.

 

 

[VedaSloan 119179]

My issue with this ruling is the potential for it to be used in other cases, such as date rape, where the victim may have been drugged and absolutely did not consent--now there is a precedent where her rapist can argue that she consented prior.

 

As others have noted, I think the comparison to surgery is a bit off considering one does not expect to wake up in the middle.

[Guest G***f******]

What Berlin said, plus, not being into S&M in any way, I don't understand how it works. How are you supposed to SAY the safeword if you're being chocked into unconsciousness?

[VedaSloan 119179]

What Berlin said, plus, not being into S&M in any way, I don't understand how it works. How are you supposed to SAY the safeword if you're being chocked into unconsciousness?

 

Generally, edge play such as breath play is done with a hand signal, rather than a verbal safe word. Also, in a bdsm context, unless it's discussed and agreed upon beforehand, choking your partner to the point of unconsciousness is usually a bad thing.

 

Chanel Reign may know more, I am not a professional.

[40ishsxaddict 203]

I'm a very open-minded guy, with some kinks of my own, but this is just too close to violence.... too many things can go wrong, no matter how much of an expert a person is at it.. lack of oxygen to the brain is never a good thing... just my opinion

[Amanda Bella 421]

How can you say "tweety bird" (stop) when you're unconscious ?

I don't believe in one sided sex, sounds more like rape to me !

 

 

 

I agree one side sex is called rape.