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Can a lover consent in advance to sex while asleep?

Supreme Court of Canada hears BDSM case

At a hearing of the Supreme Court of Canada, judges were warned not to introduce the concept of “advanced consent” to sex into Canadian Law.

Meanwhile, the defence argued that the state should not criminalize private sexual relations, so long as the participants agree to it.

The Supreme Court of Canada heard the case of R v JA on Monday Nov 8; a judgment is expected in the coming months.

The case was first brought before the Ontario justice Dianne Nicholas in 2007. The case involved a woman who lost consciousness in an act of erotic asphyxiation by her partner. When the complainant regained consciousness, her partner had anally penetrated her with a dildo.

When the woman made her initial complainant, a month and a half after the event, she said that she had not consented to the use of the dildo. Later, she attempted to retract that statement, but the case continued anyway. The Supreme Court will likely determine — as a matter of law — whether it is even possible to consent to an activity if one is unconscious.

In the initial case, Justice Nicholas ruled that prior consent to the sexual act was impossible. She took, as the matter of law, that consent to a sexual activity could not be granted if a person was unconscious.

The Ontario Court of Appeals dismissed the charges. There, the majority ruled that people can legally consent in advance to sex that is expected to occur while someone is asleep or unconscious. The dissenting minority in the appeal trial wrote that being unconscious deprives the person of being able to consent.

The Crown was represented by Christine Bartlett Hughes, who argued that valid consent cannot be given in advance of sexual activity. She argued that consent to sexual activity is an ongoing state of mind that ends when the consenting adult, in this case the complainant, is unconscious.

Susan Chapman for the Women’s Legal and Action Fund (LEAF), also argued against the concept of “advanced consent.”

Chapman argued for the protection of women against sexual and spousal abuse. She argued that consent can only be given at the time of a sexual act, when all partners are conscious, and that consent requires the ability to withdraw consent at any time.

Several Supreme Court judges raised concerns over implied versus advance consent, how far advanced consent could be taken for granted — did it end when a person was unconscious? — and they publicly worried about how the courts could draw the line when interfering with personal autonomy in the bedrooms of private citizens.
 
Howard Krongold, representing the defence, argued for the courts to introduce the concept of advanced consent.

Consensual sexual touching that occurs while a person is asleep or unconscious — a definition that could include cuddling and fondling — is not a sexual assault and should not be criminalized, he said.

Most of Krongold’s time was spent answering specific points brought up by Supreme Court judges: the definition of consent as an ongoing state of mind, how consent covers a broad spectrum of sexual activities and the concept that consent needs to be given to sexual events as they happen, even if partners have discussed it in the past.

There is a wide spectrum of sexual activities that occur in society and that most people get it right — sex is consensual — but for those who get it wrong the courts have the right to treat them harshly, Krongold told the court. But sex that may be risky should not be criminal, so long as both parties agree to it.

The Supreme Court of Canada has a spotty record when it comes to BDSM sexuality. The longstanding Butler decision, for instance, holds that BDSM sex is inherantly “harmful” and that “degrading” pornography is obscene.