Unconscious Consent

Does consent extend to our unconscious bodies?

This week a slightly curious case caught my attention: I say curious pretty much only to indicate my disbelief because the precedent that may be set by it is nothing short of abhorrent.

In Canada, the case of a married couple from Ottawa has just been put before the country’s highest court. The story runs that after a bout of “erotic asphyxiation” the woman blacked out, and awoke to find her husband anally penetrating her with a dildo, something she allegedly denies consenting to (though undoubtedly the case is somewhat confused by differing accounts).

The husband – who already had a string of convictions for domestic violence – was originally convicted of sexual assault, but the initial ruling was overturned by a higher court (the Ontario Court of Appeal) earlier this year. This court judged that the wife had essentially consented to sex before she lost consciousness.

The indignation sparked by this case is not so much the specifics of this one couple’s sexual situation, but rather the very troubling debate about whether we can give “advance consent” for something that happens to our bodies whilst unconscious or, as The Toronto Star said, whether consent ends when “a person no longer has active control over their own body”.

I might be applying some crazy logic here, but it seems simplest to suggest that a sexual partner losing consciousness is pretty much a RED LIGHT when it comes to intercourse. Alright, if there’s substantial amounts of alcohol involved it may take one partner a slightly longer time to deduce whether the other is alert/aware enough to proceed, but surely it doesn’t take more than a few moments to realise your sexual partner is no longer actively participating? Loss of movement, lack of sounds… it doesn’t take the most sexually skilled person to figure that there’s something not right.

And let’s ignore the possibility of confusion regarding the partner’s consciousness; to presume it’s alright to continue with once-consensual sex (let alone any further acts) is a dangerous oversimplification and rather appalling degradation of the sexual experience. Without consciousness, the person who has blacked out has no possible means of indicating unwanted pain or discomfort. Also – dare we suggest – it’s perfectly plausible one may change their mind. Since we have yet to become erotic automatons, it’s not exactly absurd to suggest that that curious cocktail of emotions may hold some sway over whether we want a sexual experience should continue.

And, even if the sex is perfectly pain-free and emotionally accepted, what person wants to think of their chosen partner gaining satisfaction from sexual activity with a body completely deprived of conscious thought, almost totally devoid of movement and not offering any verbal indications of enjoyment?

There are some cases in which men have been acquitted because they alleged the woman’s unconscious activities suggested sexual consent – from claiming the woman showed no resistance to having clothes removed (presumably indicating they’d yet to even begin sex) to alleging that she even rubbed her body against their own.

These are the type of delightfully repulsive cases of defence which have made their way into an upcoming book by Elizabeth Sheehy, a law professor from the University of Ottawa, who argues that men in Canada remain “relatively free” to assault their sexual partners, given a lack of cohesion in court rulings.

It’s been more than a decade since the notion of “implied consent” was thrown out of the window, so from where has this startling term “advance consent” appeared from?

The fact is that some rather shockingly outdated attitudes still remain. In written judicial statements, the defendant’s lawyer dared to quote the words of past PM Pierre Trudeau who announced back in 1968, 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.”

Which is about as ridiculous as allowing domestic violence or child abuse as long as it takes place “behind closed doors”, as the old adage goes. Neither are the implications of his belief restricted to relations between married couples (which, as any right-minded individual can hopefully appreciate, is a status that doesn’t preclude rape), but also between any adults alone together in a private place – the conditions surrounding most cases of sexual assault.

That is what is particularly disturbing about this case. My concern is not to tease out the intricacies of the Ottawa trial. To do so would only involve wading into the murky waters relating to the suitability of potentially violent sex games, the particular defendant’s past history of domestic abuse and the nitty-gritty of what exactly the couple had concluded during their earlier discussions about experimenting with anal penetration.

That is not to say the case should be disregarded entirely – but its most disturbing aspect is the way it can be read not only in the context of Canada’s legal history of sexual assault cases, but indeed in the context of much of the Western world (countries such as Afghanistan, Kenya, Nigeria and Pakistan still have yet to criminalise spousal rape). Not only are these countries which are explicitly supposed to have made rape within marriage a criminal offence, but ones in which we would have hoped the right of an individual to exercise control over their own body (and what it may be used for) would not be waived as soon as they lose consciousness.

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