The Supreme Court of Canada has a fascinating case to address this fall. It deals with consent to sexual activities when no longer conscious. This is a sensitive subject but the case raises fascinating legal points for consideration.
All this stems from a 2009 Ontario case. A couple was living together for an extended time and had a child together. They began sexual experimentation involving bondage activities and, in particular, the man choking the woman to unconsciousness, allegedly to increase her sexual enjoyment.
The woman’s testimony was that the couple had discussed what the man was allowed to do when she was unconscious, and what he was not allowed to do.
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They used a safe word, tweety bird, to end all activity. On the night in question, she’d been choked until unconscious, the man continued with what they’d agreed he could do, and when she woke up, she allowed him to finish, then said “tweety bird.” He then cut the ties.
This came to the attention of the police and prosecutors after an argument between the couple. The woman said the couple was at a difficult point in their relationship and that they’d been arguing.
As a result, she went to the police and complained that she hadn’t consented to what he’d done to her while she was unconscious. The events occurred in May but the argument and complaint to police didn’t happen until July of the same year.
The main issue is whether a person is legally able to consent, in advance, to something that will occur in the future while that person is unconscious. The trial judge decided someone cannot agree to this in advance, and the husband was found guilty of sexual assault. The Ontario Court of Appeal disagreed and overturned the conviction, but in a two-to-one split decision. As a result, the prosecution has appealed to the Supreme Court of Canada.
The case raises a number of important legal issues, and not only in the sexual context.
The trial judge decided you can’t agree, in advance, to have someone do things to you while you’re unconscious. So then how does a person consent to a surgical procedure, which will occur while under general anesthetic? That seems to defy common sense.
If I am gravely ill and sure to die, and don’t want to be brought back to life and kept alive by machines, I can instruct my doctors in advance not to do that. Does this case mean that I can no longer do that, or that someone can override my wishes because I’m unconscious? That doesn’t seem to make sense and certainly is reasoning that would void thousands of living wills.
Another way of looking at this is in the area of drunkenness. If two people go to a party and one is a “designated driver” and the other person says “I’m going to get totally blasted, make sure I get home OK,” isn’t that consent valid? When the drunk passes out and his buddy takes him home, is that assault or kidnapping?
The salacious sexual content of this case may make it tougher to decide. But it’s not about the sex. It’s about free choice and free will, and the ability to decide what happens to you when you are physically unable to voice your opinion. It will be interesting to see how the Supreme Court deals with these thorny legal issues, or if it ducks.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
