"Men Guilty of Sexual Assault If They Touch Her While She Sleeps:" Supreme Court [Archive] - Page 2

sgtbaker

3rd June 2011, 01:04 PM

The point you are looking for is 63. I think it says Dave is right, but YMMV. In points 117 and 118, Justice Fish seems to agree with him also.

Thanks, that made it a lot easier. I see why my memory attributed it to the prevailing opinion.

The Crown suggested that this Court could allow for mild sexual touching that occurs while a person is unconscious by relying on the de minimis doctrine, based on the Latin phrase “de minimis non curat lex”, or the “law does not care for small or trifling things”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004, SCC 4, [2004] 1 S.C.R. 76, at para. 200, per Arbour J., dissenting. Without suggesting that the de minimis principle has no place in the law of sexual assault, it should be noted that even mild non-consensual touching of a sexual nature can have profound implications for the complainant.

I understand what they are saying, but don't agree with the concept. The only place one can draw a clear line would be the interpretation of the recipient of the innocent kiss.

The answer to this question is obviously yes. But, nobody is arguing otherwise. The relevant question seems to be:
[80] Rather, the question is whether a conscious person can freely and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious.

I feel like when I answer for my opinion of the ruling, "I get That's not the point, the point is, they've criminalized kissing my partner in his or her sleep." When I answer for my opinion on that, I get, "But that's not the point, the point is can a person give future consent..."

The question is, according to the letter of the law, was she able to grant continuous consent, throughout the act. The answer was no because one cannot grant consent when they are unconscious. Does prior consent substitute consent? No because the implications for ruling yes would allow the "she seemed to want it before she lost consciousness," defense for future rape cases where the victim looses consciousness. Does it suck for the respondant? Absolutely.

No, but they weren't before this ruling either, so what's your point?

My point is, if you were not entitled to kiss your partner, whenever you want before this case and are still not entitled to, what has changed? No new laws were added, no laws were adjusted. This ruling was based entirely on existing laws.

When they have that person's consent in advance, perhaps? Canada doesn't consider that consent can be given. You apparently don't think this is a problem?

How far in advance counts? Once a person loses consciousness, they lose the ability to revoke consent.

AlaskaBushPilot

3rd June 2011, 01:14 PM

First, they take away the rule of thumb - whip 'em with a stick no thicker than yer thumb.

Then you couldn't drink or drug them.

Now you can't even slip it in when they're asleep.

Might as well not even bother with them now.

Ron_Tomkins

3rd June 2011, 01:14 PM

Kev The Green

3rd June 2011, 03:08 PM

I feel like when I answer for my opinion of the ruling, "I get That's not the point, the point is, they've criminalized kissing my partner in his or her sleep." When I answer for my opinion on that, I get, "But that's not the point, the point is can a person give future consent..." I've done my best to avoid doing this. That's why I stopped our previous back and forth. Obviously it's possible to legitimately agree with the decision; five Justices of the Supreme Court concurred.

The question is, according to the letter of the law, was she able to grant continuous consent, throughout the act. The answer was no because one cannot grant consent when they are unconscious. Does prior consent substitute consent? No because the implications for ruling yes would allow the "she seemed to want it before she lost consciousness," defense for future rape cases where the victim looses consciousness. On this last point I will disagree with you. The dissent stated that prior consent only counted towards exact agreement to the specific acts committed. It even hinted that the brief nature of the unconsciousness was important. Had they gone with that interpretation it would have carved out such a narrow exception that I don't agree it would have opened up the door to the abuse that you're suggesting. If I thought it did I would agree with you on the necessity of the ruling.

Ron Webb

3rd June 2011, 04:34 PM

But that's precisely the danger of laws like these, isn't it? We don't want judges and juries convicting people merely because they are "scumbags" (i.e., engage in sexual and other behaviours/lifestyles that some might find distasteful); and we don't want laws on the books that give authorities such arbitrary power to punish people who haven't actually done anything wrong, whatever we think of their moral character.
Actually, "scumbag" referred to J.A.'s long string of prior convictions for various weapons and domestic abuse charges. That should be taken into account when determining the sentence which is what I was referring to.
When determining the sentence, perhaps, but not when determining his guilt or innocence. There is a reason why prosecutors are not allowed to introduce such evidence in a trial. J.A. was presumably already punished for his prior offenses. They should not be taken into account when deciding if he should be punished again. But that is essentially what this law allows, if the decision to charge him with this (non-)crime is based on whether or not other people think he's a "scumbag".

sgtbaker

3rd June 2011, 04:47 PM

I've done my best to avoid doing this. That's why I stopped our previous back and forth. Obviously it's possible to legitimately agree with the decision; five Justices of the Supreme Court concurred.

It wasn't you doing it every time. I would answer you and someone else would quote me and bring up the kissing. I answered the kissing and you quote me and bring it back to the original point. It happens when you are sharing a discussion with multiple people.

On this last point I will disagree with you. The dissent stated that prior consent only counted towards exact agreement to the specific acts committed. It even hinted that the brief nature of the unconsciousness was important. Had they gone with that interpretation it would have carved out such a narrow exception that I don't agree it would have opened up the door to the abuse that you're suggesting. If I thought it did I would agree with you on the necessity of the ruling.

This is where I think it just comes down to having to agree to disagree. I agree with the prevailing opinion that it does open the door.

When determining the sentence, perhaps, but not when determining his guilt or innocence. There is a reason why prosecutors are not allowed to introduce such evidence in a trial. J.A. was presumably already punished for his prior offenses. They should not be taken into account when deciding if he should be punished again. But that is essentially what this law allows, if the decision to charge him with this (non-)crime is based on whether or not other people think he's a "scumbag".

I think I was the only one who suggested it should be taken into consideration. It wasn't even mentioned in the link to the actual decision, I read it in two different articles discussing the case. The only thing that should have been taken into account, IMHO, is the possibility that she recanted because she was an abused woman; which did occur during the original trial.

Kev The Green

4th June 2011, 04:55 AM

This is where I think it just comes down to having to agree to disagree.I guess if the Supreme Court couldn't come to a consensus on this issue we probably won't either.

sgtbaker

4th June 2011, 07:49 AM

I guess if the Supreme Court couldn't come to a consensus on this issue we probably won't either.

Well, if everyone would just accept the fact that I am right, for no other reason than I am me, we wouldn't need a seven page discussion about it. <sigh> :D

Kev The Green

4th June 2011, 08:10 AM

Well, if everyone would just accept the fact that I am right, for no other reason than I am me, we wouldn't need a seven page discussion about it. <sigh> :DYou have no idea how hard I had to fight with myself to avoid including the line "But you're still CLEARLY wrong." :)

Dogzilla

4th June 2011, 12:17 PM

Women cannot give consent in advance but must give consent continuously while any act is going on.

http://ca.news.yahoo.com/supreme-court-says-no-consent-unconscious-sex-case-135928262.html

Absolutely bizarre.

Interestingly, the forced anal sex wasn't a problem until the relationship hit the skids a few months later and the dude was threatening to take custody of their child.

sgtbaker

4th June 2011, 02:06 PM

Interestingly, the forced anal sex wasn't a problem until the relationship hit the skids a few months later and the dude was threatening to take custody of their child.

This more in general and not specific to this case but it's not uncommon at all for people to be reluctant about reporting a sexual assault. It's wrong to assume that because a person doesn't report it, right away, then it must be a tactic.

BobTheDonkey

4th June 2011, 03:00 PM

This more in general and not specific to this case but it's not uncommon at all for people to be reluctant about reporting a sexual assault. It's wrong to assume that because a person doesn't report it, right away, then it must be a tactic.

...and not all reports of sexual assault were a case of actual sexual assault.

What's your point?

Defending the Court's decision in this matter remains ridiculous, regardless of your excuses. The Court easily could have made the same verdict with a much more narrow scope. Instead, it decided a blanket ban on kissing a partner's forehead while he/she sleeps is sexual assault, regardless of the sleeping partner's prior consent.

There were already limits to taking advantage of sleeping people - if someone's asleep and didn't consent, then consent is not given. It's really that simple and the Court's decision could have remained narrow enough to leave that as the standard. It chose, instead, to paint with a broad brush and interpret the law to mean that prior consent is insufficient, even if immediately prior to unconsciousness.

JoelKatz

4th June 2011, 05:21 PM

I tried to cover all aspects and it was a question. I welcome the middle ground, if you have one. At what point is one individual entitled to contact another individual?The middle ground is what everyone thought it was all along -- an objectively reasonable basis to believe that one has consent.

Suppose I'm having sex with someone subject to their explicit consent. And suppose they, in their head, decide they no longer want to have sex with me. I'm not obligated to stop because I have an objectively reasonable basis to believe that I have their consent. If they say "stop" firmly, then I am obligated to stop. Why? It's not because they withdrew consent -- that's an action inside their mind that I can't possibly know for sure happened. It's because I no longer have an objectively reasonable basis to believe they consent.

This is a question of fact for the jury, and it's the usual one for all consent issues. Consent comes up in all kinds of things, not just sexual assault or rape. Theft, for example, it taking something without consent.

Rasmus

4th June 2011, 05:41 PM

This is a question of fact for the jury, and it's the usual one for all consent issues. Consent comes up in all kinds of things, not just sexual assault or rape. Theft, for example, it taking something without consent.

Excellent example. I could no longer lend you stuff from my house for you to pick up whilst i was gone. I might be asleep or otherwise incapable of withdrawing my consent for your making a loan of my lawn mower.

Belz...

5th June 2011, 05:00 AM

3point14

5th June 2011, 05:14 AM

Does this mean that shaking a heavy sleeper to wake them is illegal?

sgtbaker

5th June 2011, 07:12 AM

Excellent example. I could no longer lend you stuff from my house for you to pick up whilst i was gone. I might be asleep or otherwise incapable of withdrawing my consent for your making a loan of my lawn mower.

Why is it that sex is always compared to the borrowing/theft of objects? If I was under the assumption that it was okay to borrow your lawnmower; because you said, "take it whenever you need it," and you changed your mind without telling me, I have the option to return it. Unless you want to be really dramatic about it, the situation is essentially undone. I now know, for future referrence, that I am not allowed to take your lawnmower. Is there a way to undo sexual penetration?

sgtbaker

5th June 2011, 07:13 AM

Does this mean that shaking a heavy sleeper to wake them is illegal?

If it's sexual in nature, yes.

AvalonXQ

5th June 2011, 11:13 AM

Why is it that sex is always compared to the borrowing/theft of objects?
Because it's the most obvious parallel in the law of something that is often done voluntarily but becomes illegal if done against the other person's consent.

If I was under the assumption that it was okay to borrow your lawnmower; because you said, "take it whenever you need it," and you changed your mind without telling me, I have the option to return it. Unless you want to be really dramatic about it, the situation is essentially undone. I now know, for future referrence, that I am not allowed to take your lawnmower. Is there a way to undo sexual penetration?

Compare apples to apples -- there's no way to undo wrongful theft. Even if you get the item back, it doesn't stop it from being taken from you without your consent.
But you're also stretching the analogy further than it was intended to go. The point is that if consent is negated by transitory unconsciousness, all sort of ridiculous situations result even outside of the realm of sexual assault.

"Let's head over and grab Dave's ladder real quick."
"Sure, I just need to call to make sure he's awake."

Kev The Green

5th June 2011, 11:46 AM

But you're also stretching the analogy further than it was intended to go. The point is that if consent is negated by transitory unconsciousness, all sort of ridiculous situations result even outside of the realm of sexual assault.This was addressed in the ruling:

[55] ... A number of considerations make consent to sexual activity different from consent in other contexts such as medical interventions, and property transactions.

I don't think this was the ruling they should have issued, but there is no real risk of it being applied beyond the circumstances it was intended to apply to.

JoelKatz

5th June 2011, 12:40 PM

Why is it that sex is always compared to the borrowing/theft of objects? If I was under the assumption that it was okay to borrow your lawnmower; because you said, "take it whenever you need it," and you changed your mind without telling me, I have the option to return it. Unless you want to be really dramatic about it, the situation is essentially undone. I now know, for future referrence, that I am not allowed to take your lawnmower. Is there a way to undo sexual penetration?The sex will stop as soon as you withdraw consent, and there's no way to undo you not having your lawnmower while I had it either. And you wouldn't have said "take it whenever you need it" unless not having your lawnmower for a bit when you needed it wasn't a particularly big deal to you -- a person wouldn't consent to sex while unconscious unless a few seconds of intercourse when they didn't particularly want it wasn't a big deal to them. This may seem shocking to you, but a lot of people have sex when they don't particularly want it to maintain peace in a relationship just as many people sit through movies they aren't particularly interest in. Sex with your chosen partner when you're not particularly into it is nothing even remotely like rape.

sgtbaker

6th June 2011, 05:33 AM

The sex will stop as soon as you withdraw consent, and there's no way to undo you not having your lawnmower while I had it either.

If you really want to compare, let's go there; how many people are in therapy because their lawnmower was borrowed (remember, the original comparison was implied consent to borrowing that was later revoked without the borrowing knowing)? How many people are in therapy because of nonconsensual sex? Yes, I felt frustrated and violated when someone went into my car and stole my camcorder. When the police returned it, there was still a slight feeling of annoyance that they had the nerve in the first place, to take it. Having never been sexually violated, I am only imagining that it would feel a tad different; and by tad, I mean completely apples to oranges.

And you wouldn't have said "take it whenever you need it" unless not having your lawnmower for a bit when you needed it wasn't a particularly big deal to you -- a person wouldn't consent to sex while unconscious unless a few seconds of intercourse when they didn't particularly want it wasn't a big deal to them.

Are you intentionally ignoring the issue of the case, though? They are ruling that a person cannot consent when they are not conscious to know what is happening.

This may seem shocking to you, but a lot of people have sex when they don't particularly want it to maintain peace in a relationship just as many people sit through movies they aren't particularly interest in. Sex with your chosen partner when you're not particularly into it is nothing even remotely like rape.

Hey, if you're awake to say go or no go, I have no issue with that.

Belz...

6th June 2011, 09:18 AM

Dave Rogers

6th June 2011, 09:32 AM

Instead on focusing on how the analogy doesn't work, why not focus on how the analogy works instead, which is the whole point of analogies.

The analogy is actually, though, a distraction, and not a very helpful one. It's perfectly clear from the Supreme Court ruling that the definition of consent they are using is very specifically confined to sexual contact. No extension to the level of consent required for surgery, loan of goods, or indeed anything other than sexual contact is expressed or implied. It's perfectly reasonable, then, to point out that being unable to use your lawnmower when you want to is fundamentally very different to being sexually intimate with another person; accordingly, the level of consent required is in no way related.

Dave

qayak

6th June 2011, 10:35 AM

It's perfectly reasonable, then, to point out that being unable to use your lawnmower when you want to is fundamentally very different to being sexually intimate with another person; accordingly, the level of consent required is in no way related.

I completely disagree. If Ellen Page comes over she can have sex with my old body all she wants, whether I am wide awake, asleep, comatose, or passed out drunk, I consent.

But, and this is huge, . . . . . . she is never borrowing my kayak. :p

Rasmus

6th June 2011, 10:46 AM

Why is it that sex is always compared to the borrowing/theft of objects?

Is it?

I was simply using the definition of "consent" given in this law and applied to other cases. I think I had posted something about train journeys earlier on as well.

If I was under the assumption that it was okay to borrow your lawnmower; because you said, "take it whenever you need it," and you changed your mind without telling me, I have the option to return it.

Yes, but there would be a time where I would be without my lawn mower.

Unless you want to be really dramatic about it, the situation is essentially undone. I now know, for future referrence, that I am not allowed to take your lawnmower. Is there a way to undo sexual penetration?

There is noway to undo the past. Whether you penetrate me or take my lawnmower makes no difference to the question of whether I can consent to either in advance for a situation where I might not be able to change my mind.

No, the situation is not undone if you return my lawn mower - I still had to get by without it. Whatever emotional importance I may happen to attach to the entire issue has nothing to do with the logic underlying it.

I am not advocating that theft of a lawnmower should be punished as much or as little as rape - I am simply arguing that it is not theft if i told you could have the lawn mower even if i changed my mind and just didn't tell you.

Rasmus

6th June 2011, 10:55 AM

The analogy is actually, though, a distraction, and not a very helpful one. It's perfectly clear from the Supreme Court ruling that the definition of consent they are using is very specifically confined to sexual contact.

Really?

What other differences are there between the two kinds of consent, then?

No extension to the level of consent required for surgery, loan of goods, or indeed anything other than sexual contact is expressed or implied. It's perfectly reasonable, then, to point out that being unable to use your lawnmower when you want to is fundamentally very different to being sexually intimate with another person; accordingly, the level of consent required is in no way related.

Dave

Ah, uh... well.... no!

You can't perform surgery on me without my *written* consent - but you can have sex with me if i give verbal consent only.

And I'd rather be raped than have my arm removed surgically, too.

In other words: I see a lot of post hoc rationalization, but nothing that would be self-evidently true.

Kev The Green

6th June 2011, 11:43 AM

In other words: I see a lot of post hoc rationalization, but nothing that would be self-evidently true.Then you seriously need to read the ruling (http://scc.lexum.org/en/2011/2011scc28/2011scc28.html), or at least check out point 55. Your concern is addressed and rejected. In order for this ruling to be applied to situations beyond sexual contact it would be necessary to ignore the Court's explicit statement of intent.

Rasmus

6th June 2011, 01:12 PM

Then you seriously need to read the ruling (http://scc.lexum.org/en/2011/2011scc28/2011scc28.html), or at least check out point 55. Your concern is addressed and rejected. In order for this ruling to be applied to situations beyond sexual contact it would be necessary to ignore the Court's explicit statement of intent.

yes, i've read it. they *claim* that there is a relevant difference somewhere yet fail to explain what it is.

sgtbaker

6th June 2011, 01:14 PM

yes, i've read it. they *claim* that there is a relevant difference somewhere yet fail to explain what it is.

Because typically the laws treat crimes against property as an entirely different case than crimes against an individual.

Rasmus

6th June 2011, 01:20 PM

Because typically the laws treat crimes against property as an entirely different case than crimes against an individual.

the next point goes on to say that if i drag my drunk and unconscious friend home because i agreed to do so should he get drunk, it is to be commended rather than viewed as kidnapping.

people the world over manage just fine being kissed in their sleep or more. a law that states that a person *cannot* consent to something like that is insane. it really is as simple as that.

sgtbaker

6th June 2011, 01:32 PM

Is it?

I was simply using the definition of "consent" given in this law and applied to other cases. I think I had posted something about train journeys earlier on as well.

Yes and maybe I shouldn't have used always but it seems any time I take part in a thread discussing consensual vs nonconsensual sex, someone always compares it to property crime.

I am not advocating that theft of a lawnmower should be punished as much or as little as rape - I am simply arguing that it is not theft if i told you could have the lawn mower even if i changed my mind and just didn't tell you.

I don't know where you are going with it anymore. If you are saying that they should be treated as different cases, then we are in agreement.

truethat

6th June 2011, 01:38 PM

No i read it, and the gist is don't fondle, or **** someone who is asleep, regardless of when they fall asleep. And you are against this, honestly man that lowers my opinion of you by a large amount. You seem to think sex is a transaction, and that once someone says yes it entitles you to a free session of sex. And that, to me is completely and utterly reprehensible.

What is so hard about simply not folding or screwing someone who is asleep?

I'm pretty much against rulings like this but I think your point here is very significant that many men seem to struggle to understand.

It's not a "permission to do whatever you want, or whatever has been agreed to in the past."

Let's put it nice and simple. If you (NOT YOU< a general you) and your girlfriend or wife agree to a night of anal sex. Would you then assume that any time you wanted to have sex after that and the wife was up for it that you could toss her over and just go for it? I think most guys would double check to make sure she was willing.

Just take that attitude with all physicality and you won't have a problem.

BobTheDonkey

6th June 2011, 03:25 PM

I'm pretty much against rulings like this but I think your point here is very significant that many men seem to struggle to understand.

It's not a "permission to do whatever you want, or whatever has been agreed to in the past."

Let's put it nice and simple. If you (NOT YOU< a general you) and your girlfriend or wife agree to a night of anal sex. Would you then assume that any time you wanted to have sex after that and the wife was up for it that you could toss her over and just go for it? I think most guys would double check to make sure she was willing.

Just take that attitude with all physicality and you won't have a problem.

Congratulations on missing the point and tossing all the people arguing against this ruling into the "rape" (or at least unwanted sexual contact/bad man because he just takes what he wants/etc) crowd.

What you've missed is that it doesn't even matter if she gives me permission immediately prior to her falling asleep/becoming unconscious. It doesn't. This isn't where anyone here thinks they're entitled to touching their partner whenever he/she feels like it, regardless of the partner's desires. But, again, let's take this to an extreme instead of actually discussing what the Court opinion actually makes illegal and why what this Court ruled is a problem. :rolleyes:

truethat

6th June 2011, 03:27 PM

Congratulations on missing the part where I said that I disagreed with the ruling but pointed out a bit of confusion that most men seem to fail to understand.

AvalonXQ

6th June 2011, 03:30 PM

Let's make it clear what the apologists are saying on this one.

They are saying that no one should want any sort of sex that involves sleep or unconsciousness. They are saying that no one has the right to decide that they want to have sexual contact that includes sleep or unconsciousness. They are saying that no one has the right to give another access to their body, in any way, while they are asleep.

They are saying that when you are asleep the State will protect your body from any contact, whether you want that protection or not.

They are saying that this is not a problem, because the State will only choose to enforce this law against bad people.

BobTheDonkey

6th June 2011, 03:40 PM

Congratulations on missing the part where I said that I disagreed with the ruling but pointed out a bit of confusion that most men seem to fail to understand.

No, I saw your unsupported assertion. In fact, my post was a direct response/refutation of that unsupported assertion with regards to this particular Court ruling.

Perhaps you should reread my post, in it's entirety.

JoelKatz

6th June 2011, 04:50 PM

If you really want to compare, let's go there; how many people are in therapy because their lawnmower was borrowed (remember, the original comparison was implied consent to borrowing that was later revoked without the borrowing knowing)? How many people are in therapy because of nonconsensual sex? Yes, I felt frustrated and violated when someone went into my car and stole my camcorder. When the police returned it, there was still a slight feeling of annoyance that they had the nerve in the first place, to take it. Having never been sexually violated, I am only imagining that it would feel a tad different; and by tad, I mean completely apples to oranges.Nobody was talking about legalizing non-consensual sex. We all agree that a person must have an objectively reasonable belief that their partner consents to every sexual act that they perform.

Are you intentionally ignoring the issue of the case, though? They are ruling that a person cannot consent when they are not conscious to know what is happening.No, that's not the issue. We all know a person cannot consent when they are unconscious. The issue is whether a person can consent when they are conscious and the issue is whether a person can be said to be having nonconsensual sex even when they have an objectively reasonable belief that they have their partner's consent.

Hey, if you're awake to say go or no go, I have no issue with that.But this court held that even if the woman did say go when she was awake and her partner had an objectively reasonable belief that she consented to what he was doing, that still wasn't enough.

truethat

6th June 2011, 05:16 PM

No, I saw your unsupported assertion. In fact, my post was a direct response/refutation of that unsupported assertion with regards to this particular Court ruling.

Perhaps you should reread my post, in it's entirety.

I did. Maybe what you thought you wrote isn't. Or maybe your reading comp is low. I was replying to a post pages ago and pointing something not connected to the topic out. I clearly stated that.

sgtbaker

7th June 2011, 07:55 AM

the next point goes on to say that if i drag my drunk and unconscious friend home because i agreed to do so should he get drunk, it is to be commended rather than viewed as kidnapping.

people the world over manage just fine being kissed in their sleep or more. a law that states that a person *cannot* consent to something like that is insane. it really is as simple as that.

People all over the world do not feel violated when they are kissed by their partner in their sleep, so it won't be reported as sexual assault. However, that doesn't mean that a person is not allowed to be uncomfortable with being kissed in their most vulnerable state. If a person was kissed while they were sleeping and felt it crossed boundaries, are they justified?

AvalonXQ

7th June 2011, 08:04 AM

People all over the world do not feel violated when they are kissed by their partner in their sleep, so it won't be reported as sexual assault.
I want to make this crystal clear. It seems that you are arguing that it's okay for harmless things to be crimes on the justification that, if the things are really harmless, the crimes won't be reported/prosecuted. Are you making that argument?

However, that doesn't mean that a person is not allowed to be uncomfortable with being kissed in their most vulnerable state. If a person was kissed while they were sleeping and felt it crossed boundaries, are they justified?
Yes.
If a person is kissed while they were sleeping, felt perfectly comfortable with it, and then got mad at their SO a week later and reported it as sexual assault, are they still justified?
If not, then why is it okay for this to be the law?

sgtbaker

7th June 2011, 08:08 AM

Nobody was talking about legalizing non-consensual sex. We all agree that a person must have an objectively reasonable belief that their partner consents to every sexual act that they perform.

Is there any chance that you could point out where I even remotely suggested that anyone here is falling on the side of legalizing non-consensual sex? All I said was one is a crime against property and one is a crime against a person.

No, that's not the issue. We all know a person cannot consent when they are unconscious. The issue is whether a person can consent when they are conscious and the issue is whether a person can be said to be having nonconsensual sex even when they have an objectively reasonable belief that they have their partner's consent.

But this court held that even if the woman did say go when she was awake and her partner had an objectively reasonable belief that she consented to what he was doing, that still wasn't enough.

The state of unconsciouness is the issue. A person can say "I want to be completely under your control, do what ever you want to me when I am not conscious." Once they go unconscious, the only state of mind the conscious person is aware of is that of consent. To the conscious individual, it's fair game. However, should the conscious person pick that one thing that the unconscious person wouldn't have agreed to, do it in a way that they did not want, or change their mind on a particular act, the unconscious individual no longer has the ability to call it quits. What goes on in a person's private life is their business but once it becomes a question before the law, they have to rule against implied consent.

Dave Rogers

7th June 2011, 08:15 AM

Really?

What other differences are there between the two kinds of consent, then?

Read the ruling. It's made perfectly clear that the criminal code requires a certain standard of consent for sexual contact. The criminal code also has a set of definitions of sexual contact, which specify what acts require this level of consent. Argue over the merits of the law as much as you like - that is, in fact, what this thread is about - but there is a very clear statement as to what specific acts this ruling applies to, and it's abundantly clear that borrowing a lawn mower isn't one of them.

(Unless I've seriously misunderstood how you feel about your lawn mower, I suppose.)

Dave

sgtbaker

7th June 2011, 08:16 AM

I want to make this crystal clear. It seems that you are arguing that it's okay for harmless things to be crimes on the justification that, if the things are really harmless, the crimes won't be reported/prosecuted. Are you making that argument?

No but are you saying that because you find a particular act harmless, no one else has the right to feel violated. Are you making that argument?

Yes.
If a person is kissed while they were sleeping, felt perfectly comfortable with it, and then got mad at their SO a week later and reported it as sexual assault, are they still justified?
If not, then why is it okay for this to be the law?

So, on the off chance that someone might abuse the law, we should make it legal, right? That's a slippery slope.

Dave Rogers

7th June 2011, 08:22 AM

People all over the world do not feel violated when they are kissed by their partner in their sleep, so it won't be reported as sexual assault. However, that doesn't mean that a person is not allowed to be uncomfortable with being kissed in their most vulnerable state. If a person was kissed while they were sleeping and felt it crossed boundaries, are they justified?

The problem is not that a person is not allowed to be uncomfortable with being kissed in their most vulnerable state. If someone says "Don't kiss me when I'm asleep, I hate that," then that's a clear statement that no consent is being given. I could even accept a ruling that consent given before sleep could be withdrawn retroactively, and that therefore any sexual act involving a sleeping partner would be at risk of being considered sexual assault. The problem is that, per the ruling, a person is not allowed to consent to any sexual act while asleep, in any way whatsoever, either in advance or retrospectively. The ruling tries, but as far as I can see fails, to protect a person's right to withold consent; as a side effect, it encroaches on their right to give consent.

Dave

AvalonXQ

7th June 2011, 08:24 AM

No but <snip>
So you would agree that the fact that a crime may not normally be enforced against the "harmless" is not justification for having the act be a crime if it's clearly not criminal?

No but are you saying that because you find a particular act harmless, no one else has the right to feel violated.

I am saying that people who find a particular act harmless should have the right to consent to it, and that we have an existing mechanism to determine whether consent was given. A bright-line rule that cancels all consent at the instant of unconsciousness is absurd.

So, on the off chance that someone might abuse the law <snip>
You mean like, the "off-chance" that someone might assert the law in a custody hearing?
You mean, like, the actual circumstances of this case?
It's not "slippery slope" to talk about the absurd repercussions of the actual ruling.

Dave Rogers

7th June 2011, 08:26 AM

If a person is kissed while they were sleeping, felt perfectly comfortable with it, and then got mad at their SO a week later and reported it as sexual assault, are they still justified?

That, actually, would be better than the situation this ruling creates. Right now, if a person is kissed while they're sleeping, it's a criminal assault whether they're happy with it or not.

Dave

sgtbaker

7th June 2011, 08:46 AM

The problem is not that a person is not allowed to be uncomfortable with being kissed in their most vulnerable state. If someone says "Don't kiss me when I'm asleep, I hate that," then that's a clear statement that no consent is being given. I could even accept a ruling that consent given before sleep could be withdrawn retroactively, and that therefore any sexual act involving a sleeping partner would be at risk of being considered sexual assault. The problem is that, per the ruling, a person is not allowed to consent to any sexual act while asleep, in any way whatsoever, either in advance or retrospectively. The ruling tries, but as far as I can see fails, to protect a person's right to withold consent; as a side effect, it encroaches on their right to give consent.

Dave

When I first began participating in this thread, I did say that I understand the opinion of dissent. I said I had a hard time with it. However, the way they rely on ruling of previous cases to apply law, the idea of implied advanced consent being considered acceptable is far too risky for future rape cases. I feel it has to be clear that once an individual loses consciousness, all consent has been revoked.

Dave Rogers

7th June 2011, 08:52 AM

When I first began participating in this thread, I did say that I understand the opinion of dissent. I said I had a hard time with it. However, the way they rely on ruling of previous cases to apply law, the idea of implied advanced consent being considered acceptable is far too risky for future rape cases. I feel it has to be clear that once an individual loses consciousness, all consent has been revoked.

I think what worries me most is that any form of consent is, in effect, forbidden. The ruling makes it clear that no form of advance consent and no form of retroactive consent is acceptable. I can see the problem with either, but I can also see the problem with criminalising any consensual sex act that involves one of the participants sleeping. I don't think there's an ideal solution, but the idea that a man has been imprisoned for an act that, by the ruling of the court of appeal, his partner consented to both before and after the event, seems to go against natural justice.

Dave

Kev The Green

7th June 2011, 08:56 AM

yes, I've read it. they *claim* that there is a relevant difference somewhere yet fail to explain what it is.Why should they explain anything? For the purpose of precedent the only relevant point that the Court needs to make is that the ruling shouldn't be applied outside the scope of sexual contact. Despite it's other flaws, the ruling doesn't appear open to unanticipated application

You can't perform surgery on me without my *written* consent - but you can have sex with me if i give verbal consent only.I'm confused here. If you're fully aware that the law already treats consent differently in different situations, why are you arguing that it can't do so in this case?

Bottom line, there is plenty of room to criticize this ruling directly; using an irrelevant analogy just confuses things.

.

3point14

7th June 2011, 09:10 AM

sgtbaker

7th June 2011, 09:21 AM

I think what worries me most is that any form of consent is, in effect, forbidden. The ruling makes it clear that no form of advance consent and no form of retroactive consent is acceptable. I can see the problem with either, but I can also see the problem with criminalising any consensual sex act that involves one of the participants sleeping. I don't think there's an ideal solution, but the idea that a man has been imprisoned for an act that, by the ruling of the court of appeal, his partner consented to both before and after the event, seems to go against natural justice.

Dave

It's very difficult to to fully express my opinion on this case without sounding contradictory. The issue with the law is that it has to make clear distinctions on situations that are far too convoluted to be black and white. While I do feel bad for the guy because I doesn't appear that the intent to rape, was present, I do feel that he should have had the good sense to wait till she was awake to proceed with penetrating her.

sgtbaker

7th June 2011, 09:23 AM

I have mentioned it before, but as I think it's so important, I@ll mention it again.

Criminalising the innocent solely so you can prosecute the guilty is far, far too risky. It is, in fact, abhorrent.

The thing is, according to the prevailing opinion, they made their judgement based on interpretation of existing laws and previous cases. They did not create a new law. They essentially haven't criminalized anything that wasn't already prosecutable. Ignorance of the law does not equal innocence.

3point14

7th June 2011, 09:53 AM

The thing is, according to the prevailing opinion, they made their judgement based on interpretation of existing laws and previous cases. They did not create a new law. They essentially haven't criminalized anything that wasn't already prosecutable. Ignorance of the law does not equal innocence.

Yes, I have come to realise that.

I still think it is ridiculous, abhorrent and dangerous.

Sir Robin Goodfellow

7th June 2011, 11:58 AM

Dancing David

7th June 2011, 12:45 PM

Indeed. If I give you permission to use my lawn mower, then go on a trip to Cuba, I can no longer consent to you using it and therefore, following the logic of this court decision, consent is automatically withdrawn. Just as with the anesthetics analogy, it illustrates how retarded the idea is.

Let us recall the basis of the court's decision, legislation, they stated that in the decision and have left it to the paliament to resolve.

Silly interpretation, but there it is.

Dancing David

7th June 2011, 12:51 PM

Really?

What other differences are there between the two kinds of consent, then?

Legislation is the basis of all court rulings, the logic of decisions is always based upon that and court interpretation.

The rules for misdemeanor battery are different from battery with a deadly weapon, despite the fact that fists can be deadly weapons. Burglary is different from theft, due to intention to defraud, etc...

sgtbaker

7th June 2011, 05:21 PM

So you would agree that the fact that a crime may not normally be enforced against the "harmless" is not justification for having the act be a crime if it's clearly not criminal?

I am saying that everything in between sex and rape is subjective. What one individual is perfectly comfortable with, another is not. To make a law specifically stating that implied consent is acceptable or that kissing someone in their sleep is harmless, states entitlement to the other individual's body and removes their right to set their own limits.

I am saying that people who find a particular act harmless should have the right to consent to it, and that we have an existing mechanism to determine whether consent was given. A bright-line rule that cancels all consent at the instant of unconsciousness is absurd.

As I've said before, I don't disagree with the idea that a person loses the ability to revoke consent once they lose consciousness. As I've also said before, this case did not create any new laws, those lines were always there. They are just apparent now.

You mean like, the "off-chance" that someone might assert the law in a custody hearing?
You mean, like, the actual circumstances of this case?
It's not "slippery slope" to talk about the absurd repercussions of the actual ruling.

You are making assumptions on this woman's actions when you clearly do not know the whole story. We don't even know their names, let alone what the motivator was behind her going to the police.

She stated that she was uncomfortable with the idea but decided to go along with it which means it was his idea. Can you say for sure, that there wasn't coercion? Can you say for sure that she didn't spend those two months trying to reason through the situation (remember this particular act was not habitual)? I am not saying that this is the story, I am say we don't know the story.

What we do know is that prior to this incident, their relationship was dysfunctional. We do know that he has two prior convictions of domestic violence against her. According to her testimony it was his idea. This is enough to support the possibility of a reluctant abuse victim. Maybe (just maybe) the fear of him having sole custody of their child was enough to make her go to the authorities.

BobTheDonkey

7th June 2011, 05:28 PM

I am saying that everything in between sex and rape is subjective. What one individual is perfectly comfortable with, another is not. To make a law specifically stating that implied consent is acceptable or that kissing someone in their sleep is harmless, states entitlement to the other individual's body and removes their right to set their own limits.

Ahh, except for prior interpretations of consent. That little thing.

As I've said before, I don't disagree with the idea that a person loses the ability to revoke consent once they lose consciousness. As I've also said before, this case did not create any new laws, those lines were always there. They are just apparent now.No, there's a new line. You refuse to acknowledge it because it doesn't fit the "guys are unable to control themselves" meme. In reality, I never had the right to kiss my gf's forehead when I got home from work. I did, however, have her permission. This Court ruling no longer allows her to give that permission. Even if it's on the phone with me right before she falls asleep.

You are making assumptions on this woman's actions when you clearly do not know the whole story. We don't even know their names, let alone what the motivator was behind her going to the police.

She stated that she was uncomfortable with the idea but decided to go along with it which means it was his idea. Can you say for sure, that there wasn't coercion? Can you say for sure that she didn't spend those two months trying to reason through the situation (remember this particular act was not habitual)? I am not saying that this is the story, I am say we don't know the story.

What we do know is that prior to this incident, their relationship was dysfunctional. We do know that he has two prior convictions of domestic violence against her. According to her testimony it was his idea. This is enough to support the possibility of a reluctant abuse victim. Maybe (just maybe) the fear of him having sole custody of their child was enough to make her go to the authorities.

Yes, but that's not what the Court ruled, is it?

Ron Webb

7th June 2011, 05:51 PM

Seriously, the absurd concern over this is irrational. "Shaking someone's hand is an assault, you could go to jail for years, if you had an overzealous prosecutor!" "Lighting a candle is arson, if you've got an overzealous prosecutor!" "Taking half a step onto someone's lawn is trespassing, you could be locked up, if you've got an overzealous prosecutor!"

I don't think you'll find any precedents in case law to justify any of that -- and if you do, I would oppose the rulings in those cases too. However, the case in question is a very bad precedent because the man was indeed convicted for an act which, as I see the evidence, is at worst nothing more than half a step onto someone's lawn.

JoelKatz

7th June 2011, 06:04 PM

Is there any chance that you could point out where I even remotely suggested that anyone here is falling on the side of legalizing non-consensual sex? All I said was one is a crime against property and one is a crime against a person.You do it in this very post, I'll bold it for you. Also, before, you said: "How many people are in therapy because of nonconsensual sex?". But nobody was talking about non-consensual sex *at* *all*. This issue is about whether a particular form of consensual sex should be illegal because the partner does not have the ability to withdraw consent.

The state of unconsciouness is the issue. A person can say "I want to be completely under your control, do what ever you want to me when I am not conscious." Once they go unconscious, the only state of mind the conscious person is aware of is that of consent. To the conscious individual, it's fair game. However, should the conscious person pick that one thing that the unconscious person wouldn't have agreed to, do it in a way that they did not want, or change their mind on a particular act, the unconscious individual no longer has the ability to call it quits. What goes on in a person's private life is their business but once it becomes a question before the law, they have to rule against implied consent.Clearly, anything a person "wouldn't have agreed to" must be something they did not agree to. So, again, you are talking about non-consensual actions. You still seem to be addressing things other than what this ruling is actually holding. Even if you have explicit consent to the exact thing done, and your partner has no desire to withdraw consent and never does so, this is still holding that the action is non-consensual as a matter of law.

Your example if an action the partner would not have consented to (and thus, did not consent to) completely misses the point. We all agree that should be illegal.

sgtbaker

7th June 2011, 06:13 PM

Ahh, except for prior interpretations of consent. That little thing.

Well, this ruling was citing prior interpretations of consent, remember?

No, there's a new line. You refuse to acknowledge it because it doesn't fit the "guys are unable to control themselves" meme. In reality, I never had the right to kiss my gf's forehead when I got home from work. I did, however, have her permission. This Court ruling no longer allows her to give that permission. Even if it's on the phone with me right before she falls asleep.

Oh my goodness! You should go for the million dollar challenge, with that mind reading capability. You know why I disagree with you and because I do, it must be because I'm sexist. Nope, you can't assume that in the time she was awake and telling you to kiss her and the time she fell asleep, that she didn't change her mind. If she is sleeping, she can't tell you, never mind.

Yes, but that's not what the Court ruled, is it?

I don't know what ruling you are referring to but I was talking about assuming what we can't possibly know about who she is and why she did what she did. To make this story fit, we have to make her this manipulative, female dog, and he is the victim of her lies.

Ron Webb

7th June 2011, 07:28 PM

Nope, you can't assume that in the time she was awake and telling you to kiss her and the time she fell asleep, that she didn't change her mind.

I won't speak for Bob's gf, but as for my wife, I think I can assume that, actually. At the very least I can assume that she would not ever consider it an offense worth dragging the law into.

See, I think that's the problem with this whole discussion. In most normal healthy relationships, we can and do assume that various interpersonal behaviours are implicitly acceptable. That's what a relationship is about, after all. I don't ask my wife's permission every time I kiss her -- I just assume that she won't mind. And even if for some reason she objects, she certainly would not consider it a criminal matter.

Sir Robin Goodfellow

7th June 2011, 07:44 PM

I don't think you'll find any precedents in case law to justify any of that -- and if you do, I would oppose the rulings in those cases too. However, the case in question is a very bad precedent because the man was indeed convicted for an act which, as I see the evidence, is at worst nothing more than half a step onto someone's lawn.

Of course you won't find any case law reflecting such prosecutions. They would be absurd and would result in professional disgrace for any prosecutor who attempted to bring such a case before the courts. I was remarking on some of the more hysterical pronouncements of all the potential harms that might befall innocent citizens because of this ruling. Others have mentioned the chance that a vengeful or overzealous legal system might use this precedent to harrass people. My point is that they could use basically any existing law to do that already. There are thousands of unsolved murders. Why not just randomly arrest people and try them for these crimes? An overzealous legal system might do exactly that, so why don't we sit around worrying all day that we'll be arrested for the Zodiac murders? So what if you weren't born yet when the killings happened? You never know what a gung-ho DA might do to make a name for himself. We'd better re-think murder statutes before some poor unfortunate is railroaded by a grandstanding prosecutor.

JoelKatz

7th June 2011, 07:59 PM

Nope, you can't assume that in the time she was awake and telling you to kiss her and the time she fell asleep, that she didn't change her mind. If she is sleeping, she can't tell you, never mind.Then you can never have sex. A person can change their mind at any time and it will always take them some amount of time to communicate that change to you. There will always be a risk that there will be sexual contact during a time in which the other person does not actually consent.

See, I think that's the problem with this whole discussion. In most normal healthy relationships, we can and do assume that various interpersonal behaviours are implicitly acceptable. That's what a relationship is about, after all. I don't ask my wife's permission every time I kiss her -- I just assume that she won't mind. And even if for some reason she objects, she certainly would not consider it a criminal matter.Exactly. Until this ruling, we all understood that what you needed was an objectively reasonable belief that your partner consented.

Ron Webb

7th June 2011, 08:07 PM

Others have mentioned the chance that a vengeful or overzealous legal system might use this precedent to harrass people. My point is that they could use basically any existing law to do that already.

No they couldn't, because (in general) there is no precedent for extreme interpretations of those other laws. But this ruling serves as a precedent for future abuses of the particular law to which it applies. It therefore makes this particular law open to abuse.

3point14

8th June 2011, 01:18 AM

Of course you won't find any case law reflecting such prosecutions. They would be absurd and would result in professional disgrace for any prosecutor who attempted to bring such a case before the courts.

And yet this case came before the court, despite being absurd. I have noted no professional disgrace, so I think the two may be subtly different.

3point14

8th June 2011, 01:20 AM

Dave Rogers

8th June 2011, 02:19 AM

Any law could be abused by a crazy prosecutor. What's to stop the police from arresting me for being Jack the Ripper? What's to stop the prosecutor from bringing the case to trial? The answer is "common sense". It would be such an obviously absurd case of malicious prosecution that the crown prosecutor would likely be disbarred. Such would be the case for any prosecutor who tried someone for sexual assault for kissing their sleeping spouse on the forehead without even having a complaint in the first place.

That seems to me a very poor analogy. If a crazy prosecutor had you arrested and put on trial for being Jack the Ripper, then you would be able to present ample evidence to the jury that you were not Jack the Ripper, and would be acquitted. If, however, you kissed your wife while she was sleeping, in Canada, and a crazy prosecutor decided to bring a case against you, then he would only have to obtain an admission from you that you had kissed your wife while she was sleeping; the Supreme Court ruling, it appears to me, would then be enough for a directed verdict that you were guilty of sexual assault.

People in the legal system sometimes do go crazy and try to exceed their authority; a case was presented here a few weeks ago in which an American judge was abusing the drug court system in order to inflict excessive punishment on people who may not have committed any crimes in the first place. The law is used to harass innocent people from time to time, and miscarriages of justice do occur; ask the Guildford Four or the Birmingham Six. Simply handwaving away the criminalisation of an innocent act, and the possibility of imprisonment for sexual assault in cases where there is neither intent to commit a crime nor perception of having suffered one - in fact, the reality of a person being imprisoned on the basis of an accusation that the supposed victim admitted was only made to gain an advantage in a child custody hearing, and where the highest court openly admitted that consent had been given both before and after the fact - because the justice system is ruled by "common sense," seems to me to be dangerously naive.

Dave

Kev The Green

8th June 2011, 03:18 AM

Of course you won't find any case law reflecting such prosecutions. They would be absurd and would result in professional disgrace for any prosecutor who attempted to bring such a case before the courts. Prosecutors are expected to enforce bad laws as well as good ones. As Justice Fish points out:

[120] ... And Justice McLachlin (as she then was), in agreement on this point, made clear that “[p]rosecutorial deference cannot compensate for overextension of the criminal law; it merely replaces overbreadth and uncertainty at the judicial level with overbreadth and uncertainty at both the prosecutorial level and the judicial level”

This ruling does make it clear that kissing or caressing your spouse while they are asleep is considered sexual assault in Canada; both the majority ruling and the dissent agree on this point. The dissent explains why relying on prosecutorial discretion is not the proper safeguard.

It's possible to agree with this ruling, five Justices concurred, but dismissing the concerns raised here as 'absurd' makes it look like you don't understand the issues at hand.

Anyway, I suspect that this ruling is designed to force Parliament to rewrite the consent laws. We'll have to see how that works out.

Dancing David

8th June 2011, 05:03 AM

I won't speak for Bob's gf, but as for my wife, I think I can assume that, actually. At the very least I can assume that she would not ever consider it an offense worth dragging the law into.

See, I think that's the problem with this whole discussion. In most normal healthy relationships, we can and do assume that various interpersonal behaviours are implicitly acceptable. That's what a relationship is about, after all. I don't ask my wife's permission every time I kiss her -- I just assume that she won't mind. And even if for some reason she objects, she certainly would not consider it a criminal matter.

Yet rape does not occur in most 'normal' relationships, this is a ruling about the specifics of consent.

Take a separate example, a partner comes home and admits to having herpes(genital), the other says, "No sex with you", they then wake up to their partner having sex with them.

Unlike the case in the appeal, I think most people would agree that this is unwanted non-consensual sex.

The case is not about kissing. It is about her not consenting to anal penetration prior to asphyxiation, this coming up in a custody hearing, a prosecutors prerogative (as it is in almost all US jurisdictions) to prosecutes, conviction of a non consensual sex act, an appeal, then a whole mess of interpretation and legislation.

And again I am not sure about precedent in Canada, in the US this would have had very limited scope in the original appeal, the current SCOTUS would likely have ruled that she had not consented to anal penetration and upheld the conviction. I am not sure what they would have said about the interruption of consciousness withdrawling consent.

Dancing David

8th June 2011, 05:05 AM

And yet this case came before the court, despite being absurd. I have noted no professional disgrace, so I think the two may be subtly different.

The original case was about non-consented anal sex.

Rasmus

8th June 2011, 05:10 AM

The original case was about non-consented anal sex.

But that is not the issue at all, is it?

The issue is not whether there was or wasn't consent, or whether it was ambiguous or not. It is not even about withholding relevant information and under what circumstances consent can be viewed as informed.

The issue is that the law say that there cannot ever be consent.

Dave Rogers

8th June 2011, 05:11 AM

The case is not about kissing. It is about her not consenting to anal penetration prior to asphyxiation, this coming up in a custody hearing, a prosecutors prerogative (as it is in almost all US jurisdictions) to prosecutes, conviction of a non consensual sex act, an appeal, then a whole mess of interpretation and legislation.

The problem is that the court of appeal found that she had consented to anal sex prior to passing out. The whole point of the Supreme Court ruling is not that she didn't give consent, but that she could not under any circumstances give consent to any sexual act that took place while she was asleep or unconscious. And the discussion of whether this applies to kissing doesn't originate in this thread; it's contained in the minority view published by the Supreme Court. You may disagree with it, but it can't be handwaved away as laymen's hyperbole.

Dave

3point14

8th June 2011, 05:31 AM

The original case was about non-consented anal sex.

I think it was actually about consented anal sex.

sgtbaker

8th June 2011, 06:03 AM

You do it in this very post, I'll bold it for you. Also, before, you said: "How many people are in therapy because of nonconsensual sex?". But nobody was talking about non-consensual sex *at* *all*. This issue is about whether a particular form of consensual sex should be illegal because the partner does not have the ability to withdraw consent.

If the court rules that a person cannot consent to something that they are not awake to consent to; they are ruling that it is nonconsensual. I am not accusing people of wanting to legalize rape, I am arguing my perspective of what divides consensual from nonconsensual.

Clearly, anything a person "wouldn't have agreed to" must be something they did not agree to. So, again, you are talking about non-consensual actions. You still seem to be addressing things other than what this ruling is actually holding. Even if you have explicit consent to the exact thing done, and your partner has no desire to withdraw consent and never does so, this is still holding that the action is non-consensual as a matter of law.

I am back in the same position I was with Kev The Green. It comes down to I agree with the ruling, you don't. You agree with the decent, I agree with the prevailing opinion. At this point, it is really getting redundant.

Then you can never have sex. A person can change their mind at any time and it will always take them some amount of time to communicate that change to you. There will always be a risk that there will be sexual contact during a time in which the other person does not actually consent.

Do you only have sex with unconscious people? If they are awake they are capable of revoking that consent.

I won't speak for Bob's gf, but as for my wife, I think I can assume that, actually. At the very least I can assume that she would not ever consider it an offense worth dragging the law into.

See, I think that's the problem with this whole discussion. In most normal healthy relationships, we can and do assume that various interpersonal behaviours are implicitly acceptable. That's what a relationship is about, after all. I don't ask my wife's permission every time I kiss her -- I just assume that she won't mind. And even if for some reason she objects, she certainly would not consider it a criminal matter.

That's not assumption, that's inductive logic. You put out signals and seek signals, at a conscious and subconscious level and decide how to act from there. Plain and simple, just because you are not talking, it doesn't mean you are not communcating.

Dave Rogers

8th June 2011, 06:07 AM

I am back in the same position I was with Kev The Green. It comes down to I agree with the ruling, you don't. You agree with the decent, I agree with the prevailing opinion.

I think that's pretty much it, as long as everyone's clear what the ruling is that we're discussing - which I'm quite certain you are. I think there are one or two who still don't quite get it, but apart from that I think it's "agree to differ" time.

Dave

Sir Robin Goodfellow

8th June 2011, 06:24 AM

And yet this case came before the court, despite being absurd. I have noted no professional disgrace, so I think the two may be subtly different.

I personally don't think this particular case is necessarily the miscarriage of justice that others do. You'll note that the actions in question involved anal penetration, not a kiss on the forehead.

Rasmus

8th June 2011, 06:27 AM

I personally don't think this particular case is necessarily the miscarriage of justice that others do. You'll note that the actions in question involved anal penetration, not a kiss on the forehead.

And that makes a relevant different how?

Unless, of course, you were to assume that kissing is always of a non-sexual nature and does not usually require consent at all...

Sir Robin Goodfellow

8th June 2011, 06:27 AM

No they couldn't, because (in general) there is no precedent for extreme interpretations of those other laws. But this ruling serves as a precedent for future abuses of the particular law to which it applies. It therefore makes this particular law open to abuse.

All it takes is one overzealous prosecutor to set that precedent, so I hope you've never shaken someone's hand. Otherwise you could end up in jail for assault.

Sir Robin Goodfellow

8th June 2011, 06:30 AM

Prosecutors are expected to enforce bad laws as well as good ones. As Justice Fish points out:

[120] ... And Justice McLachlin (as she then was), in agreement on this point, made clear that “[p]rosecutorial deference cannot compensate for overextension of the criminal law; it merely replaces overbreadth and uncertainty at the judicial level with overbreadth and uncertainty at both the prosecutorial level and the judicial level”

This ruling does make it clear that kissing or caressing your spouse while they are asleep is considered sexual assault in Canada; both the majority ruling and the dissent agree on this point. The dissent explains why relying on prosecutorial discretion is not the proper safeguard.

It's possible to agree with this ruling, five Justices concurred, but dismissing the concerns raised here as 'absurd' makes it look like you don't understand the issues at hand.

Anyway, I suspect that this ruling is designed to force Parliament to rewrite the consent laws. We'll have to see how that works out.

Yes I fear that we will have a rash of prosecutions for people kissing their sleeping spouses.

3point14

8th June 2011, 06:34 AM

I think that's pretty much it, as long as everyone's clear what the ruling is that we're discussing - which I'm quite certain you are. I think there are one or two who still don't quite get it, but apart from that I think it's "agree to differ" time.

Dave

Oh, perhaps he was a scumbag that had it coming, but he's still a scumbag that's been prosecuted for an act that was consensual at the time.

As far as I'm aware, the standard doesn't change just because someone's a scumbag.

Sir Robin Goodfellow

8th June 2011, 06:34 AM

That seems to me a very poor analogy. If a crazy prosecutor had you arrested and put on trial for being Jack the Ripper, then you would be able to present ample evidence to the jury that you were not Jack the Ripper, and would be acquitted. If, however, you kissed your wife while she was sleeping, in Canada, and a crazy prosecutor decided to bring a case against you, then he would only have to obtain an admission from you that you had kissed your wife while she was sleeping; the Supreme Court ruling, it appears to me, would then be enough for a directed verdict that you were guilty of sexual assault.

People in the legal system sometimes do go crazy and try to exceed their authority; a case was presented here a few weeks ago in which an American judge was abusing the drug court system in order to inflict excessive punishment on people who may not have committed any crimes in the first place. The law is used to harass innocent people from time to time, and miscarriages of justice do occur; ask the Guildford Four or the Birmingham Six. Simply handwaving away the criminalisation of an innocent act, and the possibility of imprisonment for sexual assault in cases where there is neither intent to commit a crime nor perception of having suffered one - in fact, the reality of a person being imprisoned on the basis of an accusation that the supposed victim admitted was only made to gain an advantage in a child custody hearing, and where the highest court openly admitted that consent had been given both before and after the fact - because the justice system is ruled by "common sense," seems to me to be dangerously naive.

Dave

So what if you would be acquitted for the Whitechapel killings? You'd still need to go to court, hire a lawyer and so on. The point is the legal system could really harrass you if it wished to do so. There's nothing stopping that from happening. So I hope you can account for your whereabouts in 1888.

Sir Robin Goodfellow

8th June 2011, 06:40 AM

And that makes a relevant different how?

Unless, of course, you were to assume that kissing is always of a non-sexual nature and does not usually require consent at all...

I think we can agree that kissing is not always a sexual act. Parents kiss babies, grandparents kiss grandchildren, some people even kiss their dogs.

Not every act that is sexual in some contexts is sexual in all contexts.

Dave Rogers

8th June 2011, 06:46 AM

So what if you would be acquitted for the Whitechapel killings? You'd still need to go to court, hire a lawyer and so on. The point is the legal system could really harrass you if it wished to do so. There's nothing stopping that from happening.

Which is why it's a bad idea to make it even easier. Because, ultimately, if I were put on trial for being Jack the Ripper, I'd eventually be acquitted, awarded costs, and compensated after a lawsuit for malicious prosecution, whereas if I were put on trial for kissing my wife while she was asleep in Canada I'd be imprisoned for 18 months and have my name on the sex offenders' register.

Or am I misunderstanding your "The legal system is capable of being abused, so who cares if we make it easier to abuse it" argument?

Dave

Kev The Green

8th June 2011, 06:49 AM

Yes I fear that we will have a rash of prosecutions for people kissing their sleeping spouses.So, just so we're clear. Do you agree that this ruling's interpretation of the law criminalizes kissing or caressing a sleeping partner, however gently and affectionately?

Rasmus

8th June 2011, 06:58 AM

I think we can agree that kissing is not always a sexual act. Parents kiss babies, grandparents kiss grandchildren, some people even kiss their dogs.

Not every act that is sexual in some contexts is sexual in all contexts.

Care to address the issue?

sgtbaker

8th June 2011, 09:44 AM

JoelKatz

8th June 2011, 10:41 AM

If the court rules that a person cannot consent to something that they are not awake to consent to; they are ruling that it is nonconsensual. I am not accusing people of wanting to legalize rape, I am arguing my perspective of what divides consensual from nonconsensual.Of course a person cannot consent to something that they are not awake to consent to. But in this case, they had already consented. So it was not non-consensual. Once a person consents, you can assume their consent continues until they withdraw it unless specific facts make that assumption unreasonable.

Do you only have sex with unconscious people? If they are awake they are capable of revoking that consent.If they are unconscious they are capable of revoking that consent by waking up. It will always take a sequence of steps to withdraw consent. Otherwise you couldn't have sex with a person whose mouth was closed because they can't withdraw consent with their mouth closed.

BobTheDonkey

8th June 2011, 10:44 AM

I should just let it be and stay uninvolved, since I haven't been quoted and so have nothing directed towards me, to which I feel compelled to respond. But I wouldn't be me if I left it alone. Generally, I try not to let popularity define correctness, but it's clear that I am in the minority view, in this thread; which I do find a bit troubling.

In talking specifically about the kiss on the forehead, scenerio. I admit, right off the bat, that I am basing this on my personal interpretation of a kiss on the forehead so this is not an ironclad argument. My feelings on kissing in general are that the intent of the kiss is interpreted by the placement. I kiss my friends hello and my kids goodnight, on the cheek. If I am hugging and consoling someone, I have a tendency to kiss on the forehead or the top of the head. I've always seen kissing about the face, anywhere but the lips, as stictly not sexual in nature.
When thinking about it, my boyfriend does not kiss me on the lips, if I am sleeping (at least that I know of). Anytime he has ever awaken me with a kiss, it's always been on the forehead. After my eyes are open, he may test to see if I am receptive to a kiss on the mouth but never has he ever awaken me with a kiss on the mouth.
If I am even close to accurate, do you think the crown would have a hard time proving that the intent of a kiss on the forehead (or about the head, other than the lips) was sexual in nature?
Yes, because redefining an act that was used as an example of an action that would now be illegal to something that is nonsexual in nature is a proper response to the arguments being presented against the Majority opinion.

Let's say "cuddle". Oh, wait, that's not always sexual in nature. I could cuddle with my dog, so that's not sexual.

Oh well, I guess you're right. The extreme should be ruled against because there's no way the Court could have made a very narrow, specific ruling reaffirming that consent is required prior to the act being performed. Better to just paint with a broad brush, and if anyone is caught in it who really probably doesn't deserve to be caught in it (like the guy who cuddles up to his gf or the girl who cuddles up to her bf, etc), oh well.

But, above all, let's ignore that aspect of the decision and focus our attention on minute details that don't actually have a damned thing to do with the decision the Court handed down. Let's completely ignore that cuddling with one's significant other is decidedly different from cuddling with a dog, or kissing one's significant other is decided different from greeting a friend or kissing a child goodnight. Hell, it's not like this exact scenario was even pointed out in the diss...oh...wait...

:rolleyes: Completely rational response. Completely.

Sir Robin Goodfellow

8th June 2011, 11:25 AM

Which is why it's a bad idea to make it even easier. Because, ultimately, if I were put on trial for being Jack the Ripper, I'd eventually be acquitted, awarded costs, and compensated after a lawsuit for malicious prosecution, whereas if I were put on trial for kissing my wife while she was asleep in Canada I'd be imprisoned for 18 months and have my name on the sex offenders' register.

Or am I misunderstanding your "The legal system is capable of being abused, so who cares if we make it easier to abuse it" argument?

Dave

It's unlikely that such a case would be brought. "The court does not concern itself with trifles." Could it happen? Yes, it would violate no laws of physics. Is it even somewhat likely to happen? I can't imagine any situation where any prosecutor would ever think that such a charge was a good idea. Even if your wife complained to the police about a kiss on the cheek, it would come down to whether a chaste kiss met the definition of a sexual assault. The courts and police have more important business to attend to than such petty nonsense. You are about as likely to stand trial for the Ripper murders as you are for kissing your spouse on the cheek.

Sir Robin Goodfellow

8th June 2011, 11:28 AM

So, just so we're clear. Do you agree that this ruling's interpretation of the law criminalizes kissing or caressing a sleeping partner, however gently and affectionately?

I disagree that a chaste kiss on the cheek would ever meet the definition of a sexual assault. If however, you mean more sexualised, open-mouthed kissing, then yes, it could constitute a sexual assault, and rightly so.

Kev The Green

8th June 2011, 12:30 PM

I disagree that a chaste kiss on the cheek would ever meet the definition of a sexual assault. If however, you mean more sexualised, open-mouthed kissing, then yes, it could constitute a sexual assault, and rightly so.It's not my wording, it's from Justice Fish's dissent; right before his argument against relying on prosecutorial discretion. He says that those act have been criminalized. In the majority ruling, the Chief Justice acknowledges he's correct .

However, the whole kissing thing is probably a distraction; it's only being brought up because the Justice's felt it was worth addressing. The real danger is that I can have my wife charged for waking me up with a blowjob for my birthday; even if it took me weeks of begging to get her to do it.

Dave Rogers

8th June 2011, 01:25 PM

The real danger is that I can have my wife charged for waking me up with a blowjob for my birthday; even if it took me weeks of begging to get her to do it.

Which, I think, should have all Canadian men howling in protest, because their wives can now make the unanswerable excuse "I can't do that, dear, it's against the law."

Dave

Dave Rogers

8th June 2011, 01:28 PM

It's unlikely that such a case would be brought.

And yet, in the case we're talking about, a man has been imprisoned and labelled a sex offender for an act that both he and his partner regarded as consensual, and that his partner retroactively decided to report as a sexual assault to help win a child custody case. Somehow that case was brought, and won.

But, hey, what are the chances of the same thing happening twice?

Dave

sgtbaker

8th June 2011, 01:31 PM

Of course a person cannot consent to something that they are not awake to consent to. But in this case, they had already consented. So it was not non-consensual. Once a person consents, you can assume their consent continues until they withdraw it unless specific facts make that assumption unreasonable.

Again, you are just arguing the dessent. The majority ruled that once a person is unconscious, they are unable to revoke consent; completely incapable, because they are unconscious, not because their mouth is closed. This is getting redundant.

If they are unconscious they are capable of revoking that consent by waking up. It will always take a sequence of steps to withdraw consent. Otherwise you couldn't have sex with a person whose mouth was closed because they can't withdraw consent with their mouth closed.

There is no guaranteed time at which a person will wake up to sexual stimulation. In this case, during the time she was out, he was able to tie her up, bend her over the edge of the bed, and insert and object in her anus. I am sorry but you are getting ridiculous about this. A person with a closed mouth (unless it's taped closed) has the capacity to open it and reject the advances.

AvalonXQ

8th June 2011, 01:40 PM

Excuse my tangent for a moment...

dissent

dissent

dissent

... the word has been misspelled several different ways in this thread. So there it is.

sgtbaker

8th June 2011, 01:40 PM

Yes, because redefining an act that was used as an example of an action that would now be illegal to something that is nonsexual in nature is a proper response to the arguments being presented against the Majority opinion.

Am I redefining and act or asking if that is the general perception of a kiss?

Let's say "cuddle". Oh, wait, that's not always sexual in nature. I could cuddle with my dog, so that's not sexual.

Thank you, that's at least closer to my question, still dodging a bit but the point is noted. Since the ruling is based on contact of a sexual nature, even cuddling can be questionable.

Oh well, I guess you're right. The extreme should be ruled against because there's no way the Court could have made a very narrow, specific ruling reaffirming that consent is required prior to the act being performed. Better to just paint with a broad brush, and if anyone is caught in it who really probably doesn't deserve to be caught in it (like the guy who cuddles up to his gf or the girl who cuddles up to her bf, etc), oh well.

Seriously, did I hit a nerve or something?

But, above all, let's ignore that aspect of the decision and focus our attention on minute details that don't actually have a damned thing to do with the decision the Court handed down. Let's completely ignore that cuddling with one's significant other is decidedly different from cuddling with a dog, or kissing one's significant other is decided different from greeting a friend or kissing a child goodnight. Hell, it's not like this exact scenario was even pointed out in the diss...oh...wait...

So now the kissing has nothing to do with the decision?

Defending the Court's decision in this matter remains ridiculous, regardless of your excuses. The Court easily could have made the same verdict with a much more narrow scope. Instead, it decided a blanket ban on kissing a partner's forehead while he/she sleeps is sexual assault, regardless of the sleeping partner's prior consent.

So why would you even want to bring up the argument?

A lot of people have mentioned the idea that kissing is your wife on the forehead is now illegal and that's what gets your goat about this case. So I address that point and rather than answer with your opinion, you go on the personal attack. Now there is a completely rational response. I have an idea, next time, list why you disagree. Oh and for the record, just because the dessent pointed it out, does not make it fact. It's callled the dissenting opinion for a reason.

Langis

8th June 2011, 01:43 PM

Yet another reason for me to avoid relationships like the plague. Yay for pornography!

Dancing David

8th June 2011, 02:50 PM

But that is not the issue at all, is it?

The issue is not whether there was or wasn't consent, or whether it was ambiguous or not. It is not even about withholding relevant information and under what circumstances consent can be viewed as informed.

The issue is that the law say that there cannot ever be consent.

That is one interpretation, we shall see.

Dancing David

8th June 2011, 02:52 PM

The problem is that the court of appeal found that she had consented to anal sex prior to passing out. The whole point of the Supreme Court ruling is not that she didn't give consent, but that she could not under any circumstances give consent to any sexual act that took place while she was asleep or unconscious. And the discussion of whether this applies to kissing doesn't originate in this thread; it's contained in the minority view published by the Supreme Court. You may disagree with it, but it can't be handwaved away as laymen's hyperbole.

Dave

I think it was actually about consented anal sex.

That must have transpired since I read the news stories, the original ones linked to said that she did not consent to anal sex prior to the asphyxiation.

ETA: From the OP
http://ca.news.yahoo.com/supreme-court-says-no-consent-unconscious-sex-case-135928262.html

OTTAWA - The Supreme Court has ruled that an unconscious woman can't give consent to sex.

In a 6-3 decision Friday, the court restored the sexual-assault conviction of a man who performed an unwanted sex act on his female partner in 2007.

The case involves a woman — who can only be identified as K.D. because of a publication ban — who was choked unconscious by her common-law spouse. When she awoke, she found herself bound and being anally penetrated with a sex toy.

The woman told police that she consented to the asphyxiation, but not the subsequent sexual activity. She later recanted. Her evidence at trial was described by the judge as a "typical cross-examination of a recanting complainant in a domestic matter."

A later story said she has consented to vaginal but not anal penetration.

From the link
http://scc.lexum.org/en/2011/2011scc28/2011scc28.html

One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long‑term partner K.D. and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for “less than three minutes”. She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before. When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting a dildo into her anus. K.D. gave conflicting testimony about whether this was the first time J.A. had inserted a dildo in her anus. J.A. removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse. When they finished, J.A. cut K.D.’s hands loose.

K.D. made a complaint to the police two months later and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred. She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son. The trial judge convicted J.A. of sexual assault. A majority of the Court of Appeal allowed the appeal, set aside the conviction and dismissed the charges against J.A.

Which does not support my belief she had consented to vaginal only sex.

This I did remeber correctly
In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine Parliament’s choice. This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.

JoelKatz

8th June 2011, 03:37 PM

Again, you are just arguing the dessent.Right, that's because I agree with the dissent. The majority is wrong.

The majority ruled that once a person is unconscious, they are unable to revoke consent; completely incapable, because they are unconscious, not because their mouth is closed. This is getting redundant.Right, but there are many conditions that would delay your ability to revoke consent. Revoking consent always takes some amount of time.

There is no guaranteed time at which a person will wake up to sexual stimulation. In this case, during the time she was out, he was able to tie her up, bend her over the edge of the bed, and insert and object in her anus. I am sorry but you are getting ridiculous about this. A person with a closed mouth (unless it's taped closed) has the capacity to open it and reject the advances.There is no guaranteed time a person will be able to revoke consent in any number of cases. The person might need a few seconds to find the right words to use. The principle is that the person has an objectively reasonable belief that their partner consents. The obligation is on their partner not to grant consents that are broader than they wish and to revoke them when necessary.

What this ruling does it remove the right to consent. It is not about non-consensual conduct at all. The majority's argument doesn't hinge in any way on whether there was actual consent or not.

AvalonXQ

8th June 2011, 04:11 PM

Yet another reason for me to avoid relationships like the plague.

Only in Canada. In the U.S. you can continue to enjoy consensual sleep-snuggles all you like! :D

sgtbaker

8th June 2011, 04:18 PM

Right, that's because I agree with the dissent. The majority is wrong.

Well, if you have the evidence to prove you are correct and it's not just your opinion, I recomment you take this up with Canada. I am sure they would appreciate the input.

Right, but there are many conditions that would delay your ability to revoke consent. Revoking consent always takes some amount of time.

There is no guaranteed time a person will be able to revoke consent in any number of cases. The person might need a few seconds to find the right words to use. The principle is that the person has an objectively reasonable belief that their partner consents. The obligation is on their partner not to grant consents that are broader than they wish and to revoke them when necessary.

Unless the partner is unconscious and no longer able to revoke consent.

Sir Robin Goodfellow

8th June 2011, 06:51 PM

And yet, in the case we're talking about, a man has been imprisoned and labelled a sex offender for an act that both he and his partner regarded as consensual, and that his partner retroactively decided to report as a sexual assault to help win a child custody case. Somehow that case was brought, and won.

But, hey, what are the chances of the same thing happening twice?

Dave

The case at hand is not so easily dismissed as consensual sex. The Crown viewed her recantation as being typical of an abused victim. This is not a case where the courts somehow found out about the sex third-hand; a complaint was made, and an investigation took place.

I agree with the court here. Saying that someone can consent to sex in advance opens a loophole that I feel is dangerous. The law says that a person must be able to consent throughout the entirety of the sex act. Yes, that technically means that sometimes mutually pleasurable sex acts will be illegal, and could be prosecuted, if a complaint was lodged. That's unfortunate. Don't try anything with your sleeping spouse if you're at all unsure that it won't come back to haunt you later.

Do you really feel that if all he had done was kiss her cheek while she slept, he still would have been arrested? Do you really think the authorities would have taken it seriously?

Ron Webb

8th June 2011, 07:58 PM

Well, if you have the evidence to prove you are correct and it's not just your opinion, I recomment you take this up with Canada. I am sure they would appreciate the input.

We're all just exchanging opinions here. I don't think there is any serious disagreement (is there?) over the fact that in theory the ruling criminalizes a whole lot of ordinary activities that most loving couples do regularly. The disagreements are over things like whether this is likely to have any effect in practice, and whether the risk outweighs the benefit. It will be years before we have actual evidence to support either side.

I agree with the court here. Saying that someone can consent to sex in advance opens a loophole that I feel is dangerous.

I suppose one could argue that saying that someone can consent to sex at all opens a dangerous "loophole". There are plenty of situations where we might question whether a woman's consent is genuine or rational or freely-given or whatever. If such questions are raised, we can consider them on a case-by-case basis; but in general, if she consents, that's her decision; and if she consents in advance, that's her decision too. What's the difference?

Do you really feel that if all he had done was kiss her cheek while she slept, he still would have been arrested? Do you really think the authorities would have taken it seriously?

I see no indication to the contrary. The court did take it seriously, and their ruling is not based on the nature of the sexual activity. It is based only on the fact she was not capable of giving consent throughout the activity.

Sir Robin Goodfellow

8th June 2011, 08:58 PM

BobTheDonkey

8th June 2011, 09:27 PM

Well, how far in advance can one consent to sex? That's a great question. I think that the law says that the consent must be ongoing. Many times, courts take into account what a "reasonable person" would do or think in a given situation. If the case in question had involved a couple who had done these acts many times before (choking, unconsciousness, anal play) and there had been no previous complaints, perhaps a reasonable person would think that he was correct in assuming that she was consenting to "the usual". However, it doesn't appear that that is what happened here. He seems to have gone beyond what "the usual" was for them.That, in and of itself, does not mean it was not consensual. Unless you want the first time a couple experiments with a particular fetish to be non-consensual by definition?

The loophole that would concern me would involve the following scenario: a couple meet at a party. Both have been drinking. They are flirting, groping, getting "steamy", if you will. They leave together. They go to his house. She gives indications that she's interested in intercourse. She drinks a little more, and passes out. He goes ahead anyway, and has sex with her. She wakes up, complains to the police. The law says that this is rape. Should we give this guy the benefit of the doubt, and let him claim that she probably would have initiated the sex herself had she stayed awake? It's giving guys like this an out that worries me.Under the influence is already addressed by other case law. Not affected by this ruling.

The "kiss on the forehead" scenario is a red herring. No one here can honestly say that they think a chaste kiss of a sleeping spouse would result in arrest and prosecution. The real world just doesn't work like that.Actually, I have no doubt that it could and probably will result in charges at some point in time.

The problem with the ruling is that it was overly broad in addressing this issue. Again, the Court could have ruled on very narrow grounds regarding this specific case. It didn't. Bringing up the specifics of this case is nothing less than a red herring with regards to discussing the ruling of this case because the Court said it didn't matter if she'd consented or not - in fact, the Majority opinion assumed that she did, in fact, consent and ruled that her consent was not valid. I think this is where we keep going in circles here.

The Court has ruled that consent of either party is insufficient to actually provide consent. That's a problem.

Sir Robin Goodfellow

8th June 2011, 09:56 PM

According to the research I have done, a kiss on the cheek cannot meet the criteria for a sexual assault. There is no standard, set definition of what constitutes a sexual assault that I can find, but apparently the court looks at the areas of the body that were touched, the context of the situation, the relationship between the persons involved, among other things. There is no way that any court would even consider this hypothetical kiss on the cheek as a sexual assault. If you actually think you will see a "kiss on the cheek prosecution", you are divorced from reality. Do you think that if a cashier accidentally gave you a nickel in change instead of a quarter that the police would charge them with fraud? Is this how you actually think that things work?

BobTheDonkey

8th June 2011, 11:22 PM

Rasmus

8th June 2011, 11:55 PM

Rasmus

9th June 2011, 12:01 AM

Here's something else that bothers me about the decision:

I can apparently consent to a number of undefined sex-acts, assuming they will take place whilst I am conscious.

I cannot consent to them for a future time where I would be unconscious, because then I couldn't revoke consent.

... but then, how am I supposed to change my mind whilst being unconscious in the first place? How does that work?

Kev The Green

9th June 2011, 12:43 AM

We think things ought to work in a way that harmless, consensual actions shouldn't be illegal; people should not have to rely on individual police offers or attorneys to not get in trouble for breaking unjust laws. There just shouldn't be any unjust laws.I agree, at least in principle. Interestingly enough, this same point was made by the author of the majority ruling during an earlier case. Apparently she changed her mind.

Rasmus

9th June 2011, 01:26 AM

(edited your first line, pretty sure you meant shouldn't)

Indeed I did.

I simply fail to understand why there is even any point in arguing whether the law will actually be applied. It shouldn't be up to the police to decide who should and shouldn't have to follow a particular law, and it is problematic at best if the state attorney's make that decision in clear violation of the actual letters of the law.

We have a similar situation here in the sense that possession of illegal drugs is illegal, but the state can decide to not prosecute for amounts held for personal consumption. The difference here is that it is very clear that people are being prosecuted for possession of such small amounts.

If the discussion was about what it should actually take to give consent, or if there are specific acts that one couldn't consent to - fine, I could see the point. But if uncountable people are perfectly happy to give the kind of consent that the court says they aren't capable of giving then something is wrong somewhere.

As evidenced by the cynical recommendations to not do things with a person unless you were sure they would not rat you out later. This is *not* how it works! The rule is not to rape anyone - not just to not do it if you fear they will tell the police. The rule is not to abuse children - not just to not do it if there is a chance it will all come out. And this is because we take seriously the lack of consent in the case of rape and the inability to give consent in the case of the child. If we would take this seriously here, there would be no advice on how to avoid prosecution, would there?

Dave Rogers

9th June 2011, 01:27 AM

The case at hand is not so easily dismissed as consensual sex. The Crown viewed her recantation as being typical of an abused victim. This is not a case where the courts somehow found out about the sex third-hand; a complaint was made, and an investigation took place.

The Court of Appeal then found that the recantation was genuine, and that she had given consent to everything that happened. That's the legal starting point for the Supreme Court ruling - the whole discussion is based on the stipulation that she gave consent to everything that happened. The substance of the ruling is that the consent she gave was invalid because it covered acts done while she was unconscious, not that she did not give consent. Until you understand this, you won't even be talking about the same issue.

Do you really feel that if all he had done was kiss her cheek while she slept, he still would have been arrested? Do you really think the authorities would have taken it seriously?

Probably not. But I don't think "probably not" is good enough.

Dave

Dave Rogers

9th June 2011, 01:31 AM

Did you bother reading the dissent? Because those Justices certainly felt that a kiss could be construed as sexual assault...

Let's try another hypothetical. Suppose your partner goes to sleep in your arms, and one of your hands is holding her breast. Have you now committed a sexual assault? She's asleep, so she can't give continued consent to the contact between your hand and her breast. And I don't think anyone would argue that fondling a woman's breast against her will is anything but a sexual assault. The law now says that you have to move your hand as soon as she goes to sleep, or you're guilty of a crime.

Dave

Kev The Green

9th June 2011, 02:49 AM

Here's the ruling (http://www.canlii.org/en/on/oncj/doc/2008/2008oncj195/2008oncj195.html) from the original trial.

And the appeal (http://www.canlii.org/en/on/onca/doc/2010/2010onca226/2010onca226.html).

It's worth noting that in point 45 of the original ruling the judge stated that she didn't believe K.D. had consented. But, that J.A. should be found guilty regardless because K.D. couldn't consent to sex while unconscious. IOW, this isn't a new issue.

It's also worth noting that J.A. was convicted of breaching probation which likely affected the sentence he received.

let`s talk

9th June 2011, 03:07 AM

It seems to me it was not about sex at all. She just wanted to get a full custody of a kid and get rid of her common-law hubby.

Rasmus

9th June 2011, 03:18 AM

It seems to me it was not about sex at all. She just wanted to get a full custody of a kid and get rid of her common-law hubby.

Yes, hence she later admitted she did indeed consent.

The problem doesn't lie with how the court decided, though, or what the case was about, or what an individual party's motivations may have been. All of these make for interesting discussion, but the general question is if a person can give advanced consent to anything and specifically to sexual acts.

The court/law says that no.

I think this flies in the face of the evidence and relies on an ad-hoc definition of consent that is inconsistent with how consent is defined in other areas. (IT has been argued that sex is more important than loaning out one's lawnmower and I agree, of course. But i *can* give away my lawnmower without having to be present or awake the entire time. I have seen no argument that would justify this difference.)

JoelKatz

9th June 2011, 03:38 AM

Unless the partner is unconscious and no longer able to revoke consent.If the partner is unable to revoke consent, then the partner does not revoke consent. So it's consensual. The partner could be unable to revoke consent because they're so in love with their partner they'd consent to anything. The inability to revoke consent just strengthens the argument that the conduct is consensual.

sgtbaker

9th June 2011, 03:46 AM

If the partner is unable to revoke consent, then the partner does not revoke consent. So it's consensual. The partner could be unable to revoke consent because they're so in love with their partner they'd consent to anything. The inability to revoke consent just strengthens the argument that the conduct is consensual.

Gee, I hope a woman never passes out while she's making out with you.

3point14

9th June 2011, 04:11 AM

Yes, hence she later admitted she did indeed consent.

The problem doesn't lie with how the court decided, though, or what the case was about, or what an individual party's motivations may have been. All of these make for interesting discussion, but the general question is if a person can give advanced consent to anything and specifically to sexual acts.

The court/law says that no.

I think this flies in the face of the evidence and relies on an ad-hoc definition of consent that is inconsistent with how consent is defined in other areas. (IT has been argued that sex is more important than loaning out one's lawnmower and I agree, of course. But i *can* give away my lawnmower without having to be present or awake the entire time. I have seen no argument that would justify this difference.)

It's probably not worth noting, but you're allowed to sell your lawnmower.

BobTheDonkey

9th June 2011, 04:46 AM

Gee, I hope a woman never passes out while she's making out with you.

Because consenting to making out was consenting to sexual intercourse?

sgtbaker

9th June 2011, 05:17 AM

Because consenting to making out was consenting to sexual intercourse?

Let's say he's already got the condom on, or further, let's say they are mid coitus when she passes out, it's okay to just finish because hey, she was game when she started and the only state of mind, known is that of consent.

Rasmus

9th June 2011, 06:03 AM

Let's say he's already got the condom on, or further, let's say they are mid coitus when she passes out, it's okay to just finish because hey, she was game when she started and the only state of mind, known is that of consent.

We are all still aware that the original case was about a situation where explicit consent existed for the case that the consent-giver would fall unconscious?

I do not agree that consent should always automatically be assumed to continue over changing states of consciousness - but I think consent should be allowed to cover this possibility.

If a woman falls asleep in my arms, does that mean i have to let go, get dressed and leave?

Rasmus

9th June 2011, 06:16 AM

[double post]

Belz...

9th June 2011, 06:48 AM

Gee, I hope a woman never passes out while she's making out with you.

Nit-picking people's absolutist statements aside, there's been many mentions in this thread of having an objective reason to believe consent is still present. In this case, explicitely agreeing to have stuff done to you while you are asleep falls into that category.

sgtbaker

9th June 2011, 06:56 AM

We are all still aware that the original case was about a situation where explicit consent existed for the case that the consent-giver would fall unconscious?

I do not agree that consent should always automatically be assumed to continue over changing states of consciousness - but I think consent should be allowed to cover this possibility.

If a woman falls asleep in my arms, does that mean i have to let go, get dressed and leave?

We are still aware that according to the law, the acts in question have to be sexual in nature? Sticking a dildo in someones rear is unquestionably sexual; whereas someone falling asleep in your arms is not.

sgtbaker

9th June 2011, 06:57 AM

Nit-picking people's absolutist statements aside, there's been many mentions in this thread of having an objective reason to believe consent is still present. In this case, explicitely agreeing to have stuff done to you while you are asleep falls into that category.

The reason why I disagree is because once a person is unconscious, they are incapable of revoking consent.

Aslo mind you, the laws cited in this case require and individual to be of sound mind while giving consent and require and individual to have the sound mind to grant or revoke consent throughout the act.

Rasmus

9th June 2011, 07:15 AM

The reason why I disagree is because once a person is unconscious, they are incapable of revoking consent.

Aren't they also incapable of changing their minds?

Aslo mind you, the laws cited in this case require and individual to be of sound mind while giving consent and require and individual to have the sound mind to grant or revoke consent throughout the act.

Really now?

Rasmus

9th June 2011, 07:17 AM

We are still aware that according to the law, the acts in question have to be sexual in nature? Sticking a dildo in someones rear is unquestionably sexual; whereas someone falling asleep in your arms is not.

Falling asleep, no.

But the holding can very much be sexual.

So what's your point again?

BobTheDonkey

9th June 2011, 07:25 AM

We are still aware that according to the law, the acts in question have to be sexual in nature? Sticking a dildo in someones rear is unquestionably sexual; whereas someone falling asleep in your arms is not.
Nice dodge.

Now, maybe try responding without redefining the terms of the example to be non-sexual in nature as the scenario presented was, without doubt, intended to be of a sexual nature.

sgtbaker

9th June 2011, 07:35 AM

Nice dodge.

Now, maybe try responding without redefining the terms of the example to be non-sexual in nature as the scenario presented was, without doubt, intended to be of a sexual nature.

I am not dodging, in order for the laws to be applied, the act has to be sexual in nature. Why don't we stop bringing up distractions, as you stated to be irrelavent to this case?

Rasmus

9th June 2011, 07:37 AM

I am not dodging, in order for the laws to be applied, the act has to be sexual in nature.

Yes, and holding another person can easily be sexual in nature. Since it was brought up an example, why do you insist on talking about the kinds of holding other people where this doesn't apply?

sgtbaker

9th June 2011, 07:37 AM

Falling asleep, no.

But the holding can very much be sexual.

So what's your point again?

As I keep repeating, the law requires the act to be sexual in nature, according to this ruling.

sgtbaker

9th June 2011, 07:42 AM

Aren't they also incapable of changing their minds?

Exactly, that is my point.

Really now?

Really now, what?

The foregoing provisions of the Criminal Code indicate that Parliament viewed consent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter.

Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind. As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26).

Section 273.1(2)(b) provides that no consent is obtained if “the complainant is incapable of consenting to the activity”. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, [1997] 2 S.C.R. 777; R v. Humphrey (2001), 143 O.A.C. 151, at para. 56, per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.

sgtbaker

9th June 2011, 07:46 AM

Yes, and holding another person can easily be sexual in nature. Since it was brought up an example, why do you insist on talking about the kinds of holding other people where this doesn't apply?

The you have to be clearer on the conditions of the holding. If they are merely spooning and fell asleep, it can easily be considered not sexual. If they are spooning and he is rubbing himself off on her, it can be viewed as holding. In order for it to be prosecutable, it MUST be sexual in nature, beyond reasonable doubt.

Rasmus

9th June 2011, 07:49 AM

Exactly, that is my point.

So where is the problem?

Person gives consent. Person falls asleep and cannot change their mind. Since they cannot change their mind, they are logically still consenting. The inability to communicate a change of mind becomes irrelevant if it is not possible to change one's mind.

Now, if the person wakes up again they can both change their mind and communicate that they are now withdrawing their consent.

There never is a situation where the person was no longer consenting but could not communicate their change of mind. (Unless, of course, we are back to arguing about a few moments or seconds - a problem that is by far not unique to being unconscious!)

Really now, what?

There is no need for you to explain this, as everybody is perfectly aware of it. It adds nothing to the discussion and simply doesn't address any of the arguments. Yes, the law says so and the judges have ruled according ot the law. The law is unjust then!

sgtbaker

9th June 2011, 07:59 AM

So where is the problem?

Person gives consent. Person falls asleep and cannot change their mind. Since they cannot change their mind, they are logically still consenting. The inability to communicate a change of mind becomes irrelevant if it is not possible to change one's mind.

That is where you an I differ; according to the law, mind you a law that I completely agree with; the absence of the ability to revoke consent does not equate to consent.

There is no need for you to explain this, as everybody is perfectly aware of it. It adds nothing to the discussion and simply doesn't address any of the arguments. Yes, the law says so and the judges have ruled according ot the law. The law is unjust then!

What has to be understood is there are a number of various opinions about the case in it's entirety. I am asking you a valid question not trying to ask a loaded question. Do you feel that it is a valid interpretation of a faulty law? editing, please wait...

It comes back to the same situation that I was in previously. When I challenge the examples given and why I feel it doesn't apply to the law, I am dodging, when I cite the law to someone who appears to be challenging the ruling, itself, I am being redundant. You may feel that it's a an accurate interpretation of a faulty law but others feel it was a stretch of the law. To be fair, look at the conversation in it's entirety before you quote me and tell me what I am doing.

Belz...

9th June 2011, 09:15 AM

The reason why I disagree is because once a person is unconscious, they are incapable of revoking consent.

Which also applies to a doctor operating you under general anesthesia. Once you go under you're incapable of revoking consent.

I don't see why the principle couldn't apply to both cases.

Dave Rogers

9th June 2011, 09:20 AM

Which also applies to a doctor operating you under general anesthesia. Once you go under you're incapable of revoking consent.

I don't see why the principle couldn't apply to both cases.

It could apply, but it doesn't; it's the law, and the law is what the law says it is rather than what a particular line of argument suggests it might be. Sex and surgery are defined as being different in law, and as requiring different forms and levels of consent. And, in fact, it would be damned silly if a doctor or paramedic was prohibited from ever carrying out any medical procedure on someone who was unconscious and had not previously given consent for the procedure; it would, for example, mean leaving a large proportion of accident victims to die. On the other hand, it would be equally wrong if it were legally acceptable to carry out any sexual act on someone who was unconscious and had not previously given consent for the act.

The thing about arguing by analogy is that you have to remember that an analogy is not an identity.

Dave

Kev The Green

9th June 2011, 09:31 AM

Which also applies to a doctor operating you under general anesthesia. Once you go under you're incapable of revoking consent.

I don't see why the principle couldn't apply to both cases.So, do you believe that the law requiring written consent for medical procedures also applies to sexual contact? If not, why do you think your argument is valid in one case and not the other?

Rasmus

9th June 2011, 10:28 AM

That is where you an I differ; according to the law, mind you a law that I completely agree with; the absence of the ability to revoke consent does not equate to consent.

Where do you get that from?

I think that consent given explicitly for the case where one should no longer be able to revoke said consent is, in fact, consent. That is all this is about.

It is not about raping someone who is asleep or otherwise unconscious. It is not about extending consent that was given for the conscious state to the unconscious. (Even though I think this can be and often is reasonable, too.) Least of all it is about making up consent where none was given - explicitly or implicitly - just because someone could no longer deny their consent.

The law says a person cannot give consent for a case where they would not be able to comment either way. That is not only utterly ridiculous, it simply flies in the face of what people actually do and it is not consistent with how we usually view consent. (And, no, just declaring that sex is different isn't good enough.)

What has to be understood is there are a number of various opinions about the case in it's entirety. I am asking you a valid question not trying to ask a loaded question. Do you feel that it is a valid interpretation of a faulty law? editing, please wait...

It comes back to the same situation that I was in previously. When I challenge the examples given and why I feel it doesn't apply to the law, I am dodging, when I cite the law to someone who appears to be challenging the ruling, itself, I am being redundant. You may feel that it's a an accurate interpretation of a faulty law but others feel it was a stretch of the law. To be fair, look at the conversation in it's entirety before you quote me and tell me what I am doing.

You are not discussing the important question: Can a sane person willingly and knowingly give consent to another person to have sex when the first person is unconscious?

You are bringing up straw man after strawman and I can't for the life of me see why.

Yes, it is obvious that not all hugging and holding is sexual. But it can be sexual. So this law says that a person who is being held in a way that could be described as being sexual in nature would by falling asleep force the "holder" to end the holding and change the situation to a non-sexual one. (And remember: It doesn't matter what the two actually want. The law says it is impossible to give consent here.)

In fact, it would probably make it illegal for one party to even masturbate whilst their SO was asleep in the same room. (It's something you can go to jail to when everyone is awake but doesn't consent, after all!)

Kev The Green

9th June 2011, 10:57 AM

You are not discussing the important question: Can a sane person willingly and knowingly give consent to another person to have sex when the first person is unconscious?Unless Parliament changes the law, no. I still think they should have carved out a reasonable exception, but a majority of the Supreme Court disagrees with us.

Something to keep in mind, this is not a new interpretation. The original trial judge also ruled that K.D. was not legally able to consent due to unconsciousness.

sgtbaker

9th June 2011, 02:51 PM

You are not discussing the important question: Can a sane person willingly and knowingly give consent to another person to have sex when the first person is unconscious?

You are bringing up straw man after strawman and I can't for the life of me see why.

I am not bringing these examples up other people are. I am answering my opinion on them and why they don't apply. I will answer the rest later.

Yes, it is obvious that not all hugging and holding is sexual. But it can be sexual. So this law says that a person who is being held in a way that could be described as being sexual in nature would by falling asleep force the "holder" to end the holding and change the situation to a non-sexual one.

If you don't want to argue strawmen, stop creating them and follow your own advice, stick to the issue.

BobTheDonkey

9th June 2011, 04:58 PM

I am not bringing these examples up other people are. I am answering my opinion on them and why they don't apply. I will answer the rest later.
People are giving you examples, and rather than address the examples, you simply choose to dodge the problem by claiming that these examples don't work.

What about this: What if my GF and I are laying in bed post-coitus. I fall asleep. She snuggles her butt back into my crotch (we're both still naked). Is that sexual assault? Let me guess: No. Because her snuggling back is not necessarily sexual in nature, even though if she were to do the same while we were clothed and merely co-workers, it would be considered sexual harassment. :rolleyes:

If you don't want to argue strawmen, stop creating them and follow your own advice, stick to the issue.
We are, you're the one that's dodging the points people are making by claiming that the examples presented don't apply rather than address the issues these examples (which can be interpreted as relevant) bring up.

sgtbaker

9th June 2011, 05:42 PM

People are giving you examples, and rather than address the examples, you simply choose to dodge the problem by claiming that these examples don't work.

What about this: What if my GF and I are laying in bed post-coitus. I fall asleep. She snuggles her butt back into my crotch (we're both still naked). Is that sexual assault? Let me guess: No. Because her snuggling back is not necessarily sexual in nature, even though if she were to do the same while we were clothed and merely co-workers, it would be considered sexual harassment. :rolleyes:

We are, you're the one that's dodging the points people are making by claiming that the examples presented don't apply rather than address the issues these examples (which can be interpreted as relevant) bring up.

If you get to say; I am bothered by this ruling/this law because... I will tell you why I think you are wrong. If you don't like being side tracked, don't bring up examples. End of story.

So what exactly do you mean by address the examples, anyway? Agree with you? I read your story, but I'm kind of afraid to answer my opinion, now. You might not like it and accuse me of some new logical fallacy.

slingblade

9th June 2011, 05:50 PM

What about this: What if my GF and I are laying in bed post-coitus. I fall asleep. She snuggles her butt back into my crotch (we're both still naked). Is that sexual assault?

Wouldn't it depend on whether she thinks it's sexual assault?

sgtbaker

9th June 2011, 05:56 PM

Wouldn't it depend on whether she thinks it's sexual assault?

Run, or you will be accused of dodging. Apparently if you disagree and explain why; it's dodging.

JoelKatz

9th June 2011, 07:21 PM

Gee, I hope a woman never passes out while she's making out with you.Why? If she hadn't consented to sexual acts while she was passed out, I couldn't do them. And if she had consented, why would you hope that she didn't pass out?

You need an objectively reasonable belief that the person consents. If a person passes out, and you want to do something, you need an objectively reasonable belief that they wanted to do that even while they were passed out. You can't infer that from consent under different circumstances, that's not reasonable.

Sometimes you can infer form consent under some circumstances that you also have consent in other circumstances. Sometimes you can't. And thinking you have consent in your own head isn't sufficient. You must have an objectively reasonable belief that you have continuing consent. And the jury (in the typical case) gets to decide if your belief was objectively reasonable or not.

sgtbaker

9th June 2011, 07:26 PM

Removed quote of moderated content
Sputnik, next time lurk a bit more. Not only am I not Canadian, I am a woman. Should be more careful with your assumptions.

Kev The Green

9th June 2011, 07:51 PM

Wouldn't it depend on whether she thinks it's sexual assault?Way to dodge the issue.

Just kidding. According to Canadian law, sexual contact with someone who cannot revoke consent is sexual assault. So the answer to your question as asked is no. Replace the word 'assault' with 'contact' and the answer is most likely yes.

This ruling didn't criminalize J.A's behavior, it failed to decriminalize it. That makes a difference when considering intent of the ruling. Don't have time to go into it because I'm late for work.

BobTheDonkey

9th June 2011, 07:55 PM

Wouldn't it depend on whether she thinks it's sexual assault?

In Canada, it's sexual assault. That's the problem.

Should that default to being considered sexual assault? Yes or no?

BobTheDonkey

9th June 2011, 07:56 PM

Run, or you will be accused of dodging. Apparently if you disagree and explain why; it's dodging.

No, see, it's not simply that you disagree. It's that you continue to twist any example presented by redefining the terms of the example to be non-sexual so you don't actually have to respond to the point being made. That's a dodge.

sgtbaker

9th June 2011, 08:46 PM

No, see, it's not simply that you disagree. It's that you continue to twist any example presented by redefining the terms of the example to be non-sexual so you don't actually have to respond to the point being made. That's a dodge.

No, actually a dodge is changing the subject. The thing is though, I am not twisting. This thread has been reduced to attempting to create seemingly innocent situations that are illegal under this interpretation of Canada law. I am saying that according to the laws cited in this case, a sexual assault charge has to meet specific criteria and if your story doesn't meet the criteria, it's not relavent. That's not deflecting, dodging, or strawmaning your analogy, it's challenging it. If you could give me a better way to respond, I'm all ears.

slingblade

9th June 2011, 10:07 PM

In Canada, it's sexual assault. That's the problem.

Should that default to being considered sexual assault? Yes or no?

If my husband initiates sex with me while I'm sleeping, and it wakes me up, and I consent, it wasn't sexual assault.

If he does so, and I sleep through it, he's not as good as he used to be.

If someone not my husband does this, and it's someone to whom I wouldn't have given consent when awake, then I'd consider myself sexually assaulted.

That rape can consist of intercourse (coitus), and rape is illegal, doesn't mean that every time I have intercourse, it's rape.

slingblade

9th June 2011, 10:10 PM

Run, or you will be accused of dodging. Apparently if you disagree and explain why; it's dodging.

Pfft, let 'em. ;)

Rasmus

9th June 2011, 10:41 PM

If my husband initiates sex with me while I'm sleeping, and it wakes me up, and I consent, it wasn't sexual assault.

If he does so, and I sleep through it, he's not as good as he used to be.

In Canada, it would be sexual assault, regardless of what you thought about it.

If someone not my husband does this, and it's someone to whom I wouldn't have given consent when awake, then I'd consider myself sexually assaulted.

Of course this brings up the additional problem of consent that is merely implied. But that is not even what this is all about.

That rape can consist of intercourse (coitus), and rape is illegal, doesn't mean that every time I have intercourse, it's rape.
In Canada, it is - when you're asleep, that is.

BobTheDonkey

9th June 2011, 10:49 PM

If my husband initiates sex with me while I'm sleeping, and it wakes me up, and I consent, it wasn't sexual assault.

If he does so, and I sleep through it, he's not as good as he used to be.

If someone not my husband does this, and it's someone to whom I wouldn't have given consent when awake, then I'd consider myself sexually assaulted.

That rape can consist of intercourse (coitus), and rape is illegal, doesn't mean that every time I have intercourse, it's rape.

Not in Canada. That's exactly what's illegal in Canada regardless of your desires. This is exactly why most of us are arguing that the majority opinion is too broad.

If you're asleep, any sexual contact from your husband is, by law, non-consensual. Even if you wake up and enjoy it. Even if you ask him to do it that night before you fall asleep. And the same goes for you waking him up the same way.

BobTheDonkey

9th June 2011, 10:50 PM

No, actually a dodge is changing the subject. The thing is though, I am not twisting. This thread has been reduced to attempting to create seemingly innocent situations that are illegal under this interpretation of Canada law. I am saying that according to the laws cited in this case, a sexual assault charge has to meet specific criteria and if your story doesn't meet the criteria, it's not relavent. That's not deflecting, dodging, or strawmaning your analogy, it's challenging it. If you could give me a better way to respond, I'm all ears.

Ahhh, yes, redefining "dodge" so that what you're doing isn't a dodge. Seems ironically familiar.

slingblade

9th June 2011, 10:53 PM

In Canada, it would be sexual assault, regardless of what you thought about it.

So? If I don't consider it an assault, I'm not going to report it.
The State of Georgia used to have a law against oral sex. So, I'm a rampant law-breaker from way back. :cool:

Of course this brings up the additional problem of consent that is merely implied. But that is not even what this is all about.

In Canada, it is - when you're asleep, that is.

Whatever. I can see where such a thing might be useful to some, but the whole idea that a crime's been committed between spouses just isn't useful most of the time.

Hubby can wake me up anytime he likes. Sexy outlaw is sexy. ;)

slingblade

9th June 2011, 10:55 PM

Not in Canada. That's exactly what's illegal in Canada regardless of your desires. This is exactly why most of us are arguing that the majority opinion is too broad.

Right. So why are you arguing with me, then? It should be pretty obvious I think such an overly-broad application is ridiculous.

If you're asleep, any sexual contact from your husband is, by law, non-consensual. Even if you wake up and enjoy it. Even if you ask him to do it that night before you fall asleep. And the same goes for you waking him up the same way.

Then the law should be changed. It's useless for the most part, as written, or as applied.

Rasmus

9th June 2011, 11:02 PM

Sputnik, next time lurk a bit more. Not only am I not Canadian, I am a woman. Should be more careful with your assumptions.

Where did anyone suggest you were a guy?

Rasmus

10th June 2011, 12:09 AM

If you get to say; I am bothered by this ruling/this law because... I will tell you why I think you are wrong. If you don't like being side tracked, don't bring up examples. End of story.

But you don't refer to the examples given.

Among the possible cases that would be covered by the examples as stated, you home in on the ones that would not be affected by the law. There are other cases that would be covered, though - you could just give us the benefit of the doubt and assume we meant those cases - at least, after we've been pointing that out to you several times.

So what exactly do you mean by address the examples, anyway? Agree with you? I read your story, but I'm kind of afraid to answer my opinion, now. You might not like it and accuse me of some new logical fallacy.

Short of drawing you actual pictures, you have now been given scenarios that should meet the following conditions:

- Person A and B are in an intimate, long-term, trusting, loving and caring relationship. (Modify this further as needed. They have children, are both sterilized and have recently been tested for STDs with negative results. The relationship is exclusive and faithful.)

- A does something to B that would get A convicted of a sexual crime if A did it without the consent of B.

- Neither A nor B are in any way objecting to the act in question; for all practical purposes, B is consenting and A is aware of this. The situation so far is perfectly legal and acceptable.

- After all of this has been established, B falls asleep and thus looses consciousness.

-> Can we agree that this is possible?

The law now seems to say that at this precise moment, it is no longer possible that there could ever be consent from B to what A has been doing. A is now committing a crime.,

-> Do you agree or disagree?

Belz...

10th June 2011, 02:32 AM

sgtbaker

10th June 2011, 03:31 AM

Where did anyone suggest you were a guy?

In the previous post, he said most chaps (except sgtbaker). Chaps still means Guy or am I redefining that too?

Kev The Green

10th June 2011, 05:00 AM

So, do you believe that the law requiring written consent for medical procedures also applies to sexual contact? If not, why do you think your argument is valid in one case and not the other?

? I think it _DOES_ apply to both. Consent is explicitely given beforehand, with good reason to believe it still exists during unconsciousness.

I really hope you misread my previous post. Otherwise you just said that you believe the law requiring written consent for medical procedures also means that written consent is required for sexual contact.

sgtbaker

10th June 2011, 05:33 AM

sgtbaker

10th June 2011, 05:35 AM

Sputnik, next time lurk a bit more. Not only am I not Canadian, I am a woman. Should be more careful with your assumptions.

It's too late to edit but that ws intended to be playful. Sorry if it sounded nasty.

Oops wrong post.

I meant to quote this one.

In the previous post, he said most chaps (except sgtbaker). Chaps still means Guy or am I redefining that too?

sgtbaker

10th June 2011, 07:42 AM

But you don't refer to the examples given.

Among the possible cases that would be covered by the examples as stated, you home in on the ones that would not be affected by the law. There are other cases that would be covered, though - you could just give us the benefit of the doubt and assume we meant those cases - at least, after we've been pointing that out to you several times.

Because I don't want to spend another two pages arguing yes you did/no I didn't, I will put it like this:

In no way am I attempting to use tactics. My interpretation of your examples is; this law is unfair because it makes <this situation between consenting adults> illegal. I disagree with your premise. I find the law to be rather specific as to what is prosecutable. If I find you are citing examples that are supposedly supporting the unfairness of the law, as unsupporting, I am going to call you on it. Furthermore, If you bring up an example of spooning, I have answered spooning. If you bring up kissing on the forehead, I am going to address kissing. I quote your example, state that I disagree that it is prosecutable, therefor the law is not overextending itself, and explain why I see it that way. If that is not the proper way to hold a discussion, my deepest apologies. I say this with a complete absense of snark, sarcasm, or confrontation, I don't understand how you want me to respond, and please don't say address the issue because obviously, I think I am. I am more than willing to be corrected.

Short of drawing you actual pictures, you have now been given scenarios that should meet the following conditions:

- Person A and B are in an intimate, long-term, trusting, loving and caring relationship. (Modify this further as needed. They have children, are both sterilized and have recently been tested for STDs with negative results. The relationship is exclusive and faithful.)

- A does something to B that would get A convicted of a sexual crime if A did it without the consent of B.

- Neither A nor B are in any way objecting to the act in question; for all practical purposes, B is consenting and A is aware of this. The situation so far is perfectly legal and acceptable.

- After all of this has been established, B falls asleep and thus looses consciousness.

-> Can we agree that this is possible?

The law now seems to say that at this precise moment, it is no longer possible that there could ever be consent from B to what A has been doing. A is now committing a crime.,

-> Do you agree or disagree?

I agree that it is now committing a crime and agree that it is a crime. I've stated my position on this many times. I feel, regardless of the actions leading up to the unconsciousness Once a person is incapable of revoking consent, they are equally no longer capable of granting it.

BobTheDonkey

10th June 2011, 08:19 AM

Because I don't want to spend another two pages arguing yes you did/no I didn't, I will put it like this:

In no way am I attempting to use tactics. My interpretation of your examples is; this law is unfair because it makes <this situation between consenting adults> illegal. I disagree with your premise. I find the law to be rather specific as to what is prosecutable. If I find you are citing examples that are supposedly supporting the unfairness of the law, as unsupporting, I am going to call you on it. Furthermore, If you bring up an example of spooning, I have answered spooning. If you bring up kissing on the forehead, I am going to address kissing. I quote your example, state that I disagree that it is prosecutable, therefor the law is not overextending itself, and explain why I see it that way. If that is not the proper way to hold a discussion, my deepest apologies. I say this with a complete absense of snark, sarcasm, or confrontation, I don't understand how you want me to respond, and please don't say address the issue because obviously, I think I am. I am more than willing to be corrected.
Right. By redefining any example to be chaste, regardless of the sexual nature or not, you're dodging having to actually admit that this ruling is actually too broad. Twist what you say you're doing all you like, this is, by your own admission, what you're doing.

I give you an example of contact that could be considered sexual in nature, and rather than address the point that the action is sexual assault in Canada, you simply redefine the action to being non-sexual in nature. When you're not redefining the terms of the example to be non-sexual, you're arguing that this ruling stops people from taking advantage of others using arguments where making-out is somehow offering consent to more, even though this is already addressed in existing case law and has no bearing, whatsoever, on this current discussion as nothing has changed with regards to how that would be addressed in court.

I agree that it is now committing a crime and agree that it is a crime. I've stated my position on this many times. I feel, regardless of the actions leading up to the unconsciousness Once a person is incapable of revoking consent, they are equally no longer capable of granting it.
Make sure you don't cuddle up to your boyfriend the next time you spend the night together, then. Wouldn't want you to become a sexual predator.

Dave Rogers

10th June 2011, 08:38 AM

If I find you are citing examples that are supposedly supporting the unfairness of the law, as unsupporting, I am going to call you on it. Furthermore, If you bring up an example of spooning, I have answered spooning. If you bring up kissing on the forehead, I am going to address kissing. I quote your example, state that I disagree that it is prosecutable, therefor the law is not overextending itself, and explain why I see it that way.

Could you give your opinion on the hypothetical scenario I suggested in post #371?

Dave

sgtbaker

10th June 2011, 09:13 AM

Right. By redefining any example to be chaste, regardless of the sexual nature or not, you're dodging having to actually admit that this ruling is actually too broad. Twist what you say you're doing all you like, this is, by your own admission, what you're doing.

I give you an example of contact that could be considered sexual in nature, and rather than address the point that the action is sexual assault in Canada, you simply redefine the action to being non-sexual in nature. When you're not redefining the terms of the example to be non-sexual, you're arguing that this ruling stops people from taking advantage of others using arguments where making-out is somehow offering consent to more, even though this is already addressed in existing case law and has no bearing, whatsoever, on this current discussion as nothing has changed with regards to how that would be addressed in court.

Make sure you don't cuddle up to your boyfriend the next time you spend the night together, then. Wouldn't want you to become a sexual predator.

Impressive that you manage to only tell me what I am doing but not address a single thing I've said. :rolleyes:

I'm done with you

sgtbaker

10th June 2011, 09:20 AM

Could you give your opinion on the hypothetical scenario I suggested in post #371?

Dave

Yes, I actually did have an opinion on that but it was after we agreed to disagree, so I didn't want you to think I was being argumentative.

Let's try another hypothetical. Suppose your partner goes to sleep in your arms, and one of your hands is holding her breast. Have you now committed a sexual assault? She's asleep, so she can't give continued consent to the contact between your hand and her breast. And I don't think anyone would argue that fondling a woman's breast against her will is anything but a sexual assault. The law now says that you have to move your hand as soon as she goes to sleep, or you're guilty of a crime.

Dave

I think it would be considered sexual assault, if she was sleeping and you were awake. You are continuing sexual contact after she is no longer in a state of consent.

Dave Rogers

10th June 2011, 09:25 AM

I think it would be considered sexual assault, if she was sleeping and you were awake. You are continuing sexual contact after she is no longer in a state of consent.

We agree, then, that it would be considered sexual assault in Canadian law. The question is, then, should it? I think it shouldn't; it's a perfectly normal and even commonplace way for people who love each other to interact. And yet, it's now been defined, without exception, as a criminal offence.

Dave

sgtbaker

10th June 2011, 09:32 AM

We agree, then, that it would be considered sexual assault in Canadian law. The question is, then, should it? I think it shouldn't; it's a perfectly normal and even commonplace way for people who love each other to interact. And yet, it's now been defined, without exception, as a criminal offence.

Dave

Well, yes, I think it should for the reason I gave; The reciever of the contact is no longer in the state of mind to consent or revoke.

Dave Rogers

10th June 2011, 09:36 AM

Well, yes, I think it should for the reason I gave; The reciever of the contact is no longer in the state of mind to consent or revoke.

But in reality, this isn't a far-fetched hypothetical. Lots of couples go to sleep naked in each others' arms. I don't find it reasonable to criminalise that behaviour - and, even worse, to assign the roles of criminal and victim solely on the basis of who happens to go to sleep first.

Dave

slingblade

10th June 2011, 10:44 AM

I think it would be considered sexual assault, if she was sleeping and you were awake. You are continuing sexual contact after she is no longer in a state of consent.

A law might say that's assault. I don't, and the law be damned.

I mentioned the Georgia law against oral sex (and sodomy):

Oral sex has long had a special criminal status in Georgia law; until 1998, oral sex even between husband and wife was punishable with up to 20 years in prison.[9]

The United States Supreme Court, in 1986, originally upheld Georgia's anti-sodomy law (which covered both oral sex and anal sex) as constitutional even when applied to criminalize two consenting adults in the privacy of their bedroom (Bowers v. Hardwick, 478 U.S. 176).

Twelve years later, Georgia's Supreme Court would, however, find that the same law upheld by the U.S. Supreme Court was unconstitutional on state constitutional grounds, at least as applied to oral sex with persons over the age of consent (Powell v. Georgia, S98A0755, 270 Ga. 327, 510 S.E. 2d 18 (1998)).

My husband and I were definitely and knowingly criminals under the old law. Should we have been?

YOU KIDS GET THE HELL OFF MY LAWN OUT OF MY BEDROOM! :p

BobTheDonkey

10th June 2011, 11:12 AM

Impressive that you manage to only tell me what I am doing but not address a single thing I've said. :rolleyes:

I'm done with you

Why would I address anything you've said when you've yet to address anything I've said?

Even given that you've continued to dodge my points, my post was still addressing yours. You said you aren't redefining anything, I say you are. I then provided examples of the dodges you've employed in refutation of your claim that you haven't been dodging.

I then made a comment that is a direct response to a comment you made.

Ignore me if you choose, it doesn't change that you've repeatedly refused to acknowledge any point made in response to your argument, preferring instead to raise strawmen.

sgtbaker

10th June 2011, 11:25 AM

But in reality, this isn't a far-fetched hypothetical. Lots of couples go to sleep naked in each others' arms. I don't find it reasonable to criminalise that behaviour - and, even worse, to assign the roles of criminal and victim solely on the basis of who happens to go to sleep first.

Dave

Going to sleep in each other's arms eliminates intent. You are both sleeping so there is no presence of mind to contemplate committing a crime. That, at least IMHO, is a little different from being awake and touching your wife's breast while she sleeps.

BobTheDonkey

10th June 2011, 11:34 AM

Going to sleep in each other's arms eliminates intent. You are both sleeping so there is no presence of mind to contemplate committing a crime. That, at least IMHO, is a little different from being awake and touching your wife's breast while she sleeps.

Here we are again:

"well, see, that's not really sexual. Here's why. So that doesn't apply."

And it's an end-run around the ruling we're discussing.

How about this scenario:

My GF and I are laying in bed naked post-coitus. I fall asleep. She snuggles back into me. Is that sexual assault in Canada? Should it be?

(and before you attempt to reinterpret my example so you can claim it's not sexual, she's awake. We're both naked. She snuggles her butt back into my crotch. This is something that would be considered sexual harassment if we were both clothed and co-workers and it was uninvited, so, yes, it is sexual in nature)

ETA: Oh, wait, I just reread your post. I see what you did there. Now you've added intent to commit a crime to whether it's sexual assault or not. That's still covered in my scenario as she's awake when she snuggles back. I'm sure Dave meant for that to be the case (one of the partners to be awake), but it wasn't specifically stated and you exploited that (well done).

sgtbaker

10th June 2011, 11:38 AM

Why? If she hadn't consented to sexual acts while she was passed out, I couldn't do them. And if she had consented, why would you hope that she didn't pass out?

The last line in the post to which I was responding:

If the partner is unable to revoke consent, then the partner does not revoke consent. So it's consensual. The partner could be unable to revoke consent because they're so in love with their partner they'd consent to anything. The inability to revoke consent just strengthens the argument that the conduct is consensual.

...sounded frighteningly like "win her over with Chloroform." I apologize if I took it wrong.

You need an objectively reasonable belief that the person consents. If a person passes out, and you want to do something, you need an objectively reasonable belief that they wanted to do that even while they were passed out. You can't infer that from consent under different circumstances, that's not reasonable.

Sometimes you can infer form consent under some circumstances that you also have consent in other circumstances. Sometimes you can't. And thinking you have consent in your own head isn't sufficient. You must have an objectively reasonable belief that you have continuing consent. And the jury (in the typical case) gets to decide if your belief was objectively reasonable or not.

I, personally, feel that once a person is in a state, whether requested or not, where they do not have the presence of mind to consent or revoke consent; it becomes exactly what I highlighted, "thinking you have consent in your own head."

Belz...

10th June 2011, 11:59 AM

If my husband initiates sex with me while I'm sleeping, and it wakes me up, and I consent, it wasn't sexual assault.

Not in Canada, apparently. Have you read the thread ?

Belz...

10th June 2011, 12:00 PM

So? If I don't consider it an assault, I'm not going to report it.

And ? If _anyone_ else suspects it happened charges could still be pressed.

Belz...

10th June 2011, 12:02 PM

I really hope you misread my previous post. Otherwise you just said that you believe the law requiring written consent for medical procedures also means that written consent is required for sexual contact.

I don't understand where the disconnect happened. I was talking about consent, written or otherwise.

sgtbaker

10th June 2011, 12:27 PM

A law might say that's assault. I don't, and the law be damned.

I mentioned the Georgia law against oral sex (and sodomy):

In the ruling on the case in the OP; an unnamed woman went to the police and said that she and her partner were engaging in sexual activity. She claimed that she agreed to be suffocated to the point of passing out and agreed to being tied up. She said that when she woke, he was inserting a dildo in her anus. At some point (? still unclear on exactly when) she said she actually did give permission to the act in question, that he did it for ten seconds after she awoke, then they had intercourse and he untied her. She said she made those claims because he threated to take custody of her son. The judge found her recanting to be typical in an abuse situation and the case moved forward. He was found guilty, the first time of sexual assault and bodily harm. The appeal over turned the conviction of bodily harm since the suffocation was consensual and no bodily harm was actually committed. The only thing left was the question of rape, which went forward without her testimony. The majority ruled that a person cannot give prior consent to a sexual act that will take place when the person is unconscious. Once a person is unconscious, they are incapable of granting or revoking consent. The dissent argued that if her state of mind was that of consent before and after the transient unconsciousness, then no sexual assault has occured. (did I present that fairly?) The man was found guilty of sexual assault.

It's a rather interesting case and the ruling has been linked a few times. If you have the time, you should read it.

sgtbaker

10th June 2011, 12:31 PM

ETA: Oh, wait, I just reread your post. I see what you did there. Now you've added intent to commit a crime to whether it's sexual assault or not. That's still covered in my scenario as she's awake when she snuggles back. I'm sure Dave meant for that to be the case (one of the partners to be awake), but it wasn't specifically stated and you exploited that (well done).

Why don't you try reading the conversation in it's entirety instead of simply stalking everything I say, desperate for your little, "Aha!" moment. You might be more interesting to converse with.

BobTheDonkey

10th June 2011, 12:54 PM

Why don't you try reading the conversation in it's entirety instead of simply stalking everything I say, desperate for your little, "Aha!" moment. You might be more interesting to converse with.

I have read the discussion. I have been paying attention. Right now, you're the only one arguing that the majority opinion is correct. Don't flatter yourself believing you're personally the target of my posting.

sgtbaker

10th June 2011, 01:01 PM

I have read the discussion. I have been paying attention. Right now, you're the only one arguing that the majority opinion is correct. Don't flatter yourself believing you're personally the target of my posting.

Does that actually have a point or are you just sayin?

slingblade

10th June 2011, 01:04 PM

In the ruling on the case in the OP; an unnamed woman went to the police and said that she and her partner were engaging in sexual activity. She claimed that she agreed to be suffocated to the point of passing out and agreed to being tied up. She said that when she woke, he was inserting a dildo in her anus. At some point (? still unclear on exactly when) she said she actually did give permission to the act in question, that he did it for ten seconds after she awoke, then they had intercourse and he untied her. She said she made those claims because he threated to take custody of her son. The judge found her recanting to be typical in an abuse situation and the case moved forward. He was found guilty, the first time of sexual assault and bodily harm. The appeal over turned the conviction of bodily harm since the suffocation was consensual and no bodily harm was actually committed. The only thing left was the question of rape, which went forward without her testimony. The majority ruled that a person cannot give prior consent to a sexual act that will take place when the person is unconscious. Once a person is unconscious, they are incapable of granting or revoking consent. The dissent argued that if her state of mind was that of consent before and after the transient unconsciousness, then no sexual assault has occured. (did I present that fairly?) The man was found guilty of sexual assault.

It's a rather interesting case and the ruling has been linked a few times. If you have the time, you should read it.

Oh, I did read it. I didn't say such a law (edit: or a ruling) never has a legitimate application. I'm only saying this one seems so broad that it has faulty applications.

I'm going to largely ignore a law that's so broad that it criminalizes sexual activity most people consider perfectly normal, whether or not I'm engaging in that normal sexual activity. I don't care if the law says it's a crime for my husband to spoon with me after I've fallen asleep. I don't care if oral sex between married, consenting adults is a crime.

That a woman can be raped by her husband is covered by the law. But again, that doesn't mean every time a married couple has sex, it's rape.

I'm not saying this law is never justified. I'm saying it seems poorly written. (edit again, or the ruling seems somehow poorly made.)

sgtbaker

10th June 2011, 01:12 PM

Oh, I did read it. I didn't say such a law (edit: or a ruling) never has a legitimate application. I'm only saying this one seems so broad that it has faulty applications.

I'm going to largely ignore a law that's so broad that it criminalizes sexual activity most people consider perfectly normal, whether or not I'm engaging in that normal sexual activity. I don't care if the law says it's a crime for my husband to spoon with me after I've fallen asleep. I don't care if oral sex between married, consenting adults is a crime.

That a woman can be raped by her husband is covered by the law. But again, that doesn't mean every time a married couple has sex, it's rape.

I'm not saying this law is never justified. I'm saying it seems poorly written. (edit again, or the ruling seems somehow poorly made.)

I think the general consensus is that the ruling is accurate to the letter of the law. The problem people have is with the law and it's potential applications as well as the application to this particular case.

As I've said, this case was put before a court to decide. I feel that if they made a special situation for this case, it would open up a defense for future rape cases involving loss of consciousness and consent prior to the act.

Kev The Green

10th June 2011, 07:00 PM

He was found guilty, the first time of sexual assault and bodily harm. The appeal over turned the conviction of bodily harm since the suffocation was consensual and no bodily harm was actually committed.Just a nitpick, he was never found guilty of causing bodily harm. There's a link to the original ruling back in post #372, the relevant section is [45].

JoelKatz

11th June 2011, 04:03 AM

I, personally, feel that once a person is in a state, whether requested or not, where they do not have the presence of mind to consent or revoke consent; it becomes exactly what I highlighted, "thinking you have consent in your own head."Not at all. What matters is whether it is objectively reasonable for you to believe you had consent.

If your wife says to you, "you may kiss me when I'm asleep" and you have no reason to believe she withdrew that consent, it is objectively reasonable for you to believe you have her consent to kiss her when she's asleep. I take it that you, in your own head, do not believe this gives you consent. But that doesn't matter. The contents of your head are not relevant to the consent issue (though they are relevant to intent issues).

Kev The Green

11th June 2011, 05:38 AM

I think the general consensus is that the ruling is accurate to the letter of the law. The problem people have is with the law and it's potential applications as well as the application to this particular case. I'm calling a temporary deceasefire since this opens up a new aspect of discussion. The problem is indeed the law. Requiring consent to be valid only when the ability to revoke is present sounds good at first. But, Parliament failed to allow for any common sense exceptions. Faced with a poorly conceived law, the Court had two choices.

First, what I consider the safe choice. They could have carved out a narrow exception for this case and otherwise left the law alone. Officially, K.D. consented not only to a specific act but consented to having it performed while she was unconscious. That seriously limits the precedent that ruling this way would have set. In particular, it wouldn't have allowed an exception if one party denied they consented.

The other choice was to insist on following the letter of the law and blame Parliament for writing a bad law. That's the approach they took. The majority ruling states that Parliament's definition of consent is potentially unrealistic in some situations. But, they said it was up to Parliament to fix it.

That leaves three possible outcomes. Parliament does nothing; thus leaving a lot of otherwise innocent acts criminal. Parliament fixes the law and doesn't leave any loopholes. Parliament tries to fix the law but either fails or creates a whole new set of problems.

While the first possibility is likely, I'm betting my money on the last outcome. I could be wrong, but I trust the judiciary to make the law work as intended more than I trust the legislature.

Obligatory Hypothetical: I'm making love to a woman. She tells me "I think I'm just going to go to sleep. Go ahead and finish what you're doing". Should it be legal for me to continue having sex with her?

Ron Webb

11th June 2011, 09:06 AM

BobTheDonkey

11th June 2011, 09:29 AM

I agree with your summary. As I said earlier, the choice was between a loose interpretation of the law in accordance with common sense ("judicial activism") and a strict interpretation of a badly-worded law. I think this is a clear case where judicial activism is appropriate, because frankly I can't see where the political will would come from to amend this law. (I can just imagine how the opposition would characterize it as an amendment to allow kinky sex.) IMHO it will simply stay on the books, rarely if ever used but always there to potentially make criminals out of ordinary people.

(...or to be used as ammunition in child custody cases. Far stretch, I know...but there it is.)

Checkmite

12th June 2011, 10:49 AM

How about if you agreed to the sex act, and while they were caressing you, you fell asleep. Do you think they should then be charged with sexual assault?

How about if a woman's husband comes to bed after she goes to sleep and touches her breast. Is he guilty?

Continuing to have sex with or fondle/caress in a sexual manner someone who is unconscious and can't respond in any way is...creepy, to be quite honest.

Checkmite

12th June 2011, 11:05 AM

sgtbaker

12th June 2011, 12:40 PM

I'm calling a temporary deceasefire since this opens up a new aspect of discussion. The problem is indeed the law. Requiring consent to be valid only when the ability to revoke is present sounds good at first. But, Parliament failed to allow for any common sense exceptions. Faced with a poorly conceived law, the Court had two choices.

First, what I consider the safe choice. They could have carved out a narrow exception for this case and otherwise left the law alone. Officially, K.D. consented not only to a specific act but consented to having it performed while she was unconscious. That seriously limits the precedent that ruling this way would have set. In particular, it wouldn't have allowed an exception if one party denied they consented.

The other choice was to insist on following the letter of the law and blame Parliament for writing a bad law. That's the approach they took. The majority ruling states that Parliament's definition of consent is potentially unrealistic in some situations. But, they said it was up to Parliament to fix it.

That leaves three possible outcomes. Parliament does nothing; thus leaving a lot of otherwise innocent acts criminal. Parliament fixes the law and doesn't leave any loopholes. Parliament tries to fix the law but either fails or creates a whole new set of problems.

While the first possibility is likely, I'm betting my money on the last outcome. I could be wrong, but I trust the judiciary to make the law work as intended more than I trust the legislature.

I would be very interested to hear the wording of a fixed version of that law and I mean that without sarcasm or snark. I don't see how a judge/jury would be able to differenciate between honest consent while unconscious and the accused claim that he/she consented prior to unconsciousness. Merely claiming that there was consent, by the defense, with a special consideration to the law does open up a window of doubt. It's hard enough to prosecute typical rape cases when the question of consent is on the table.

Obligatory Hypothetical: I'm making love to a woman. She tells me "I think I'm just going to go to sleep. Go ahead and finish what you're doing". Should it be legal for me to continue having sex with her?

First, I am going to refrain from making any jokes about a woman choosing to go to sleep, mid coitus with you. If you want my honest opinion, yes, but for the same reason I've been stating all along; I don't think it's safe to start carving out special exceptions involving possible rape.

Because I feel you do make valid points, I will check to see if you respond but other than that, I am probably not going to be involved in this thread anymore.

brodski

12th June 2011, 02:39 PM

Madalch

12th June 2011, 03:32 PM

First, I am going to refrain from making any jokes about a woman choosing to go to sleep, mid coitus with you.

What happens if a couple decides to enjoy a post-coital cuddle without withdrawing, and one partner falls asleep during that cuddle?

sgtbaker

12th June 2011, 03:40 PM

What happens if a couple decides to enjoy a post-coital cuddle without withdrawing, and one partner falls asleep during that cuddle?

It's been my experience that the penis does a fairly good job of retracting on it's own. :D

Ron Webb

12th June 2011, 04:03 PM

Continuing to have sex with or fondle/caress in a sexual manner someone who is unconscious and can't respond in any way is...creepy, to be quite honest.

And because you find it "creepy", therefore it should be illegal?

JoelKatz

12th June 2011, 04:13 PM

As to the law: I honestly don't see a problem with it the way it is written. Since the only person who could bring this charge against an alleged assailant is the 'victim', then it it certainly isn't a threat or inconvenience to couples who don't at all mind their partners initiating sex while they're asleep and only asking later on if they consent to it; all they have to do is not call the police on their partner. Simple really. But for those women or men who would feel violated by such an act, the law provides recourse should they choose to pursue it. I'm fine with that.What makes you think the only person who can bring the charge is the victim? That's completely and utterly false. For example, consider the facts in Lawrence v. Texas:

The petitioners, John Geddes Lawrence, a medical technologist, then age 55, and Tyron Garner (July 10, 1967 – September 11, 2006), then 31, were alleged to have been engaging in consensual anal sex in Lawrence's apartment in the outskirts of Houston between 10:30 and 11 p.m. on September 17, 1998 when Harris County sheriff's deputy Joseph Quinn entered the unlocked apartment, with his weapon drawn, arresting the two.

The arrests had stemmed from a false report of a "weapons disturbance" in their home — that because of a domestic disturbance or robbery, there was a man with a gun "going crazy." The person who filed the report, neighbor Robert Royce Eubanks, then 40, had earlier been accused of harassing the plaintiffs. Despite the false report, probable cause to enter the home was not at issue in the case. Eubanks, with whom Garner was romantically involved at the time of the arrest, later admitted that he was lying, pleaded no contest to charges of filing a false police report, and served 15 days in jail.

Lawrence and Garner were arrested, held overnight in jail, and charged with violating Texas's anti-sodomy statute, the Texas "Homosexual Conduct" law. The law, Chapter 21, Sec. 21.06 of the Texas Penal Code, designated it as a Class C misdemeanor when someone "engages in deviant sexual intercourse with another individual of the same sex," prohibiting anal and oral sex between members of the same sex. They later posted $200 bail.

http://en.wikipedia.org/wiki/Lawrence_v._Texas#Arrest_of_Lawrence_and_Garner

Laws like this are time bombs waiting to go off on innocent people, and they are easily abused by not-so-innocent people to get back at people they don't like.

Kev The Green

13th June 2011, 07:22 AM

I would be very interested to hear the wording of a fixed version of that law and I mean that without sarcasm or snark. I don't see how a judge/jury would be able to differenciate between honest consent while unconscious and the accused claim that he/she consented prior to unconsciousness. Merely claiming that there was consent, by the defense, with a special consideration to the law does open up a window of doubt. It's hard enough to prosecute typical rape cases when the question of consent is on the table.The majority ruling's closing argument was that it wasn't their place to make an exception to Parliament's intent. That falls short of actually endorsing this definition of consent. Instead, their ruling seems to be an exercise in judicial modesty and places all the blame for any bad outcomes from this law on Parliament.

That's not the approach that I think they should have taken. Like you, I have a hard time picturing an actual fixed version of the law. I think the better course of action would have been to carve out an exception for when the the person assaulted actually testifies to consent. As long as it was made clear that mistaken belief in consent wasn't a defense, the potential for abuse would be limited.

It's way too early to know the repercussions of this ruling. I know you agree with the current state of law, but there's no telling how long it will last. I suspect if enough Canadians realise that they are committing felonies, Parliament will be forced to change the law. This will be helped along if the law ends up being used against otherwise innocent people.

There's also the question of a constitutional challenge being brought against the law. I'm not knowledgeable enough in Canadian law to know exactly what this would entail. But, it's not at all certain from this ruling how the Court would rule if one were made.

sgtbaker

13th June 2011, 09:32 AM

The majority ruling's closing argument was that it wasn't their place to make an exception to Parliament's intent. That falls short of actually endorsing this definition of consent. Instead, their ruling seems to be an exercise in judicial modesty and places all the blame for any bad outcomes from this law on Parliament.

That's not the approach that I think they should have taken. Like you, I have a hard time picturing an actual fixed version of the law. I think the better course of action would have been to carve out an exception for when the the person assaulted actually testifies to consent. As long as it was made clear that mistaken belief in consent wasn't a defense, the potential for abuse would be limited.

Judiciary discretion is reasonable enough and though I do agree with the law as well as the ruling; I certainly wouldn't have gone off in a tissy, had they ruled against the sexual assault on the specific exception that they believed her recanting to be genuine. However, applying it to future possible cases or making it habit among married and commonlaw cases, I would feel more hesitant to agree with the same possible ruling, continuously, because of the commonality of victims of domestic situations recanting.

It's way too early to know the repercussions of this ruling. I know you agree with the current state of law, but there's no telling how long it will last. I suspect if enough Canadians realise that they are committing felonies, Parliament will be forced to change the law. This will be helped along if the law ends up being used against otherwise innocent people.

I guess it would depend on the circumstances. There's nothing to stop an individual, in the future, from making the same accusations but abuse allegations in divorce and custody battles are not unheard of. I, personally, would much rather prosecute people who make false accusation, rather than reword a law to prevent possible "revenge" accusations.

There's also the question of a constitutional challenge being brought against the law. I'm not knowledgeable enough in Canadian law to know exactly what this would entail. But, it's not at all certain from this ruling how the Court would rule if one were made.

I don't know how it works either. I don't know who instigates a constitutional challenge or where it starts.

Kev The Green

13th June 2011, 09:58 AM

sgtbaker

13th June 2011, 10:04 AM

I'm just replying to say I'm not replying. We seem to have pretty much covered everything.

What are you talking about? We haven't even gotten to proper litigation, yet. :D

BobTheDonkey

13th June 2011, 03:23 PM

Judiciary discretion is reasonable enough and though I do agree with the law as well as the ruling; I certainly wouldn't have gone off in a tissy, had they ruled against the sexual assault on the specific exception that they believed her recanting to be genuine. However, applying it to future possible cases or making it habit among married and commonlaw cases, I would feel more hesitant to agree with the same possible ruling, continuously, because of the commonality of victims of domestic situations recanting.
Then you address the commonality of victims of abuse recanting. The Court ruling could very easily have focused on that and ignored the bigger picture. It simply didn't. And in doing so, has caused a large population to be now considered sexual offenders. That's without even addressing the people that are no longer able to engage in their fetish (asphyxiation play).

You might not enjoy cuddling with your significant other while he's asleep, but I'd wager a large percentage of the population does. That action, along with many others, is now illegal. Rather than protect consent, strengthen the value of it, this ruling has rather destroyed the value of it. The individual's ability to consent is no longer valid in many instances, all of them valid examples.

I guess it would depend on the circumstances. There's nothing to stop an individual, in the future, from making the same accusations but abuse allegations in divorce and custody battles are not unheard of. I, personally, would much rather prosecute people who make false accusation, rather than reword a law to prevent possible "revenge" accusations.But this ruling removes the need to even look at prosecuting people for false accusations. There can be no false accusation when all it takes for someone to be the sexual offender/rapist is for him/her to touch his/her sleeping partner in any manner that could be considered sexual in nature (i.e. cuddling, kissing, etc).

You've mentioned a few issues you have with prior consent, all of which seem to boil down to:

1) Person A consents to being awoken to sexual play
2) Person A changes her/his mind (due to fight/lack of desire, it's inconsequential why, only that consent has been reneged) or isn't interested that particular day
3) Her/his partner relies on the previous consent as a defense to engage in sexual activity while Person A is sleeping.

What you fail to acknowledge is that prior understanding/interpretation of consent protects Person A from #3. Consent had been withdrawn. Until consent is renewed, Person A's partner is legally not allowed to initiate any sexual activity with Person A. It's just really that simple. There was no need to combat this issue with a blanket ban on any kind of sexual activity to a sleeping partner, it was already addressed by previous case law. Especially not when addressing a case where consent had been provided immediately prior to unconsciousness.

The variation of this scenario includes Person A being intoxicated or otherwise his/her mental facilities are compromised. That, also, has been addressed in case law. This is, again, not sufficient reason to ban couples from engaging in consensual sexual activity.

sgtbaker

14th June 2011, 01:30 PM

Then you address the commonality of victims of abuse recanting. The Court ruling could very easily have focused on that and ignored the bigger picture. It simply didn't. And in doing so, has caused a large population to be now considered sexual offenders. That's without even addressing the people that are no longer able to engage in their fetish (asphyxiation play).

Just for accuracy, the dissent pointed out that the case is not addressing asphyxiation. It is not illegal.

You might not enjoy cuddling with your significant other while he's asleep, but I'd wager a large percentage of the population does. That action, along with many others, is now illegal. Rather than protect consent, strengthen the value of it, this ruling has rather destroyed the value of it. The individual's ability to consent is no longer valid in many instances, all of them valid examples.

If you still want to discuss it, keep it on topic. Don't presume to know what I like and what I don't like, in the bedroom; it is not now or ever will be, your business to comment on. You have your opinion on the result of the ruling and you are entitled to it but I feel it protects the individual when they are no longer in the state of consent.

You've mentioned a few issues you have with prior consent, all of which seem to boil down to:

1) Person A consents to being awoken to sexual play
2) Person A changes her/his mind (due to fight/lack of desire, it's inconsequential why, only that consent has been reneged) or isn't interested that particular day
3) Her/his partner relies on the previous consent as a defense to engage in sexual activity while Person A is sleeping.

What you fail to acknowledge is that prior understanding/interpretation of consent protects Person A from #3. Consent had been withdrawn. Until consent is renewed, Person A's partner is legally not allowed to initiate any sexual activity with Person A. It's just really that simple. There was no need to combat this issue with a blanket ban on any kind of sexual activity to a sleeping partner, it was already addressed by previous case law. Especially not when addressing a case where consent had been provided immediately prior to unconsciousness.

In that particular situation, I could see how he could try to justify his actions. How long does "no" last before he is allowed to make an advance again? Whatever inspired her to say, "No," could easily be overriden by being seduced in a way she has already asserted that she enjoys. I don't know what their pillow talk is and and she very well may have said, "You can wake me up like that any time," at some time earlier in the relationship.

My position on sex play with a sleeping partner has already been stated and I hope to FSM that the law never falls on the side of the conscious individual, should it be brought to them to decide. While adding immediate prior consent does convolute the issue considerably but to me, it still falls in the realm of performing sexual acts to an individual that is incapable of saying stop.

Delphinium

14th June 2011, 03:56 PM

Women cannot give consent in advance but must give consent continuously while any act is going on.

http://ca.news.yahoo.com/supreme-court-says-no-consent-unconscious-sex-case-135928262.html

Absolutely bizarre.

That's just fine with me. That a person consents to one thing doesn't mean that they consent to anything and everything the other person chooses to do to them after that point. Consent to one thing doesn't mean that it's everything goes - if I made a purchase of newspaper and consent to that transaction and hand over the funds, that doesn't therefore mean the seller can obligate me to purchase a sofa costing much more (for instance). It actually should be uncontroversial that if someone is unconscious or otherwise incapacitated their ability to consent is non-existent or diminished and as the article points out, if the courts had ruled any other way, there would have been no protection for victims of exploitation in this way and they would lose their autonomy. It would have lead to the possibility that a rapist could knock someone unconscious or whatever, and then after that they sexually violate that person it wouldn't be deemed rape as consent then does not apply and the victim would have no recourse to the law to get justice.

This isn't the same as when in a relationship with someone, they might touch you in their sleep or something. That's not a parallel situation, the two people there are there by mutual consent, and presumably have set ground rules as to conduct within the relationship. If the other person is uncomfortable or doesn't want something ("not now, I'm too tired" for instance) they still retain the capacity to agree to or not agree to the act. I don't think it alters anything that they might have agreed on a previous occasion to do an act, the right to accept or refuse in any particular situation is still retained and doesn't just disappear because they agreed previously. It would seem to be rather a strawman to say oh, but if I touch them in my sleep that's then therefore sexual assault, when there was mutual agreement to sleep in the same bed and be in the situation where your bodies might touch (and if that isn't wanted, single beds could be purchased instead!). Not the same thing as someone waking up from their sleep to find that they are being assaulted because someone broke into their house.

The recantation aspect is interesting, because it seems the events are not and were not in dispute but for whatever reason, the person that originally laid the complaint decided to not go ahead. This is irrespective of what might have spurred them to lay the complaint in the first place, that a person may have some kind of motivation doesn't mean that the event didn't happen or that it might be defined as a crime that can be prosecuted. That would tend to mean irrespective of events happening concurrently or later that there was something there that needed to be addressed, but that leaves the suggestion that it was all false when there are all sorts of pressures there that might push them to reconsider laying a claim even if there was a crime that occurred, such as unsympathetic and disbelieving police and society, low chance of the prosecution being successful and not being able to handle the court process, pressure from the ex-partner to withdraw and so on. I think that's why in some cases, courts go ahead regardless of the recantation because despite all of those pressures, it's clear a crime may have occurred and they need to make a determination on that point.

AvalonXQ

14th June 2011, 04:34 PM

It would seem to be rather a strawman to say oh, but if I touch them in my sleep that's then therefore sexual assault, when there was mutual agreement to sleep in the same bed and be in the situation where your bodies might touch (and if that isn't wanted, single beds could be purchased instead!). Not the same thing as someone waking up from their sleep to find that they are being assaulted because someone broke into their house.

You're right, it's not the same thing...

... except that under Canadian law, both are sexual conduct without consent. That's the problem here -- you can't consent to conduct while you're asleep, no matter what you intend to allow.

BobTheDonkey

14th June 2011, 05:18 PM

Just for accuracy, the dissent pointed out that the case is not addressing asphyxiation. It is not illegal.
You're right. Aspyxiation itself is not. Any action taken after the moment he/she loses consciousness is though. Which severely restricts consenting adults.

If you still want to discuss it, keep it on topic. Don't presume to know what I like and what I don't like, in the bedroom; it is not now or ever will be, your business to comment on. You have your opinion on the result of the ruling and you are entitled to it but I feel it protects the individual when they are no longer in the state of consent.
1) My post was on topic.
2) I do not presume to know what you do or don't like, which is why I included the conditional term "may".
3) This is not about you. It was not intended as commentary on your personal habits. In fact, I specifically left it vague with regards to what you do or don't do (reference point 2).
4) Way to not address the point of my comment, choosing instead to take offense and use that as a retort.

It not only protects the individual when he/she is not in a state to provide consent, but it also prevents that individual from consenting in advance to something that would occur when he/she is unable to provide consent - in this case, kissing, cuddling, fondling, wake-up oral sexual stimulation, etc. regardless of whether the "victim" desired, nay even requested, such activity. Thus, this ruling removes the ability of consenting adults to consent. That weakens the value of consent.

In that particular situation, I could see how he could try to justify his actions. How long does "no" last before he is allowed to make an advance again?Again, this is covered under previous case law. "No means no" ring a bell? Once consent is removed, it remains removed until it is renewed. This is not a difficult concept to grasp. What's frustrating is that I keep feeling like I (and other males) am (are) being painted as merely beasts who are only going to act on impulse and have no self control or are simply looking for ways to take advantage of a situation, regardless of what previous legal decisions say about that.

Whatever inspired her to say, "No," could easily be overriden by being seduced in a way she has already asserted that she enjoys. Then she has renewed consent. ETA: Actually, I should ask for clarification. Perhaps she's being seduced by a foot rub. Is that sexual assault if she doesn't stop it from happening? No. Would it be sexual assault if he woke her up by fondling her? Yes. But, again, that could easily have been made explicit in a more narrow ruling. This blanket "protection" you're attempting to provide adds nothing to the current legal standing of consent, whether given or withdrawn.

I don't know what their pillow talk is and and she very well may have said, "You can wake me up like that any time," at some time earlier in the relationship.And this is countered by the latest removal of consent. How hard is that concept to grasp? You keep erecting this strawman of "If the Courts don't forcibly remove consent, once a woman's consented to a sexual activity in the future, that consent remains, regardless of her rescinding that consent." This argument of yours is like saying that since my ex-wife provided me consent 10 years ago, I'd be able to use that as defense should I decide I'm lonely and want sex from her. It's just not even close to being a solid defense, nor is it even something that was not addressed prior to this ruling. Hell, this ruling could have easily focused on that single, narrow issue - but it didn't. That's the problem.

sgtbaker

14th June 2011, 06:16 PM

You're right. Aspyxiation itself is not. Any action taken after the moment he/she loses consciousness is though. Which severely restricts consenting adults.

I can't argue that. It does put legal limits on it.

1) My post was on topic.
2) I do not presume to know what you do or don't like, which is why I included the conditional term "may".
3) This is not about you. It was not intended as commentary on your personal habits. In fact, I specifically left it vague with regards to what you do or don't do (reference point 2).
4) Way to not address the point of my comment, choosing instead to take offense and use that as a retort.

Well to me it seems that you were suggesting that my position on this law is based on...I'm sorry, could be based on my personal preferences in bed. It's irrelavent and to me, it would be the equivalent of me saying, "You may like to perform sex acts on unconscious people but..." and no I am not going there, I am just assuming that your position is based on a practical view, not a personal view. I don't know how it is you wanted me to respond to that. Were you asking me what my personal choices were? I addressed what followed.

Again, this is covered under previous case law. "No means no" ring a bell? Once consent is removed, it remains removed until it is renewed. This is not a difficult concept to grasp.

I just feel a person stating, "I love being woken up with sex," could easily be construed as implied consent.

What's frustrating is that I keep feeling like I (and other males) am (are) being painted as merely beasts who are only going to act on impulse and have no self control or are simply looking for ways to take advantage of a situation, regardless of what previous legal decisions say about that.

If you got the impression that I suggested it was a male thing, I really do apologize. I feel I've paid very close attention to only using specific gender identities when either referring to this particular case or answering a specific analogy, otherwise, I've either used "he/she" or "individual." I never meant to give any impression that I feel only males would want to touch females.

Then she has renewed consent. ETA: Actually, I should ask for clarification. Perhaps she's being seduced by a foot rub. Is that sexual assault if she doesn't stop it from happening? No. Would it be sexual assault if he woke her up by fondling her? Yes. But, again, that could easily have been made explicit in a more narrow ruling. This blanket "protection" you're attempting to provide adds nothing to the current legal standing of consent, whether given or withdrawn.

No, she woke to him having sex with her, which is exactly how she said she likes to be woken. How narrow of an exception would they be able to write; minutes, hours? How far in advance can a person grant general or specific consent before the conscious person has to rethink, does he/she still want this?

And this is countered by the latest removal of consent. How hard is that concept to grasp? You keep erecting this strawman of "If the Courts don't forcibly remove consent, once a woman's consented to a sexual activity in the future, that consent remains, regardless of her rescinding that consent." This argument of yours is like saying that since my ex-wife provided me consent 10 years ago, I'd be able to use that as defense should I decide I'm lonely and want sex from her. It's just not even close to being a solid defense, nor is it even something that was not addressed prior to this ruling. Hell, this ruling could have easily focused on that single, narrow issue - but it didn't. That's the problem.

The point I was making with that story was the ambiguity of implied consent. In the specific post I was addressing, I put the story before what that poster shared as an example of what is now considered a sexual offense; "tomorrow I want you to wake me up with a BJ." I was addressing a situation where the conscious individual has (even if it's minimal) reason to believe the unconscious individual wanted that act. You are the one who resurrected this story and applied it to this discussion. I am more than happy to drop it, as the only thing it actually has in common with this case is an unconscious female. I don't even know how to answer the "strawman" you accuse me of creating because I never said that.

BobTheDonkey

14th June 2011, 06:34 PM

I just feel a person stating, "I love being woken up with sex," could easily be construed as implied consent.
Yes, it is consent. But that consent is only valid until it is withdrawn. Thus, it doesn't apply. Hence why your argument is a strawman.

The point I was making with that story was the ambiguity of implied consent. In the specific post I was addressing, I put the story before what that poster shared as an example of what is now considered a sexual offense; "tomorrow I want you to wake me up with a BJ." I was addressing a situation where the conscious individual has (even if it's minimal) reason to believe the unconscious individual wanted that act. You are the one who resurrected this story and applied it to this discussion. I am more than happy to drop it, as the only thing it actually has in common with this case is an unconscious female. I don't even know how to answer the "strawman" you accuse me of creating because I never said that.
...
No, she woke to him having sex with her, which is exactly how she said she likes to be woken. How narrow of an exception would they be able to write; minutes, hours? How far in advance can a person grant general or specific consent before the conscious person has to rethink, does he/she still want this? Really? This is really this hard a concept? On one hand you argue that consent somehow manages to remain after it's been removed, but then when I point out that this is like arguing that my ex-wife's consent 10 years ago is valid today, you claim it has nothing to do with your argument.

Here's the bottom line: consent is only valid until it's withdrawn. She says "I like to be awoken with sexual stimuli". He says "you're a ****". She says "**** you, you're not touching me". He no longer has consent including while she's asleep. He wakes her up with sexual stimuli before she renews that consent, it's sexual assault. That was the way it worked prior to this ruling.

I see no reason to throw the baby out with the bathwater in the manner the Court recently did. Especially not when the only examples of undesirable activity that would be avoided were already considered sexual assault.

sgtbaker

14th June 2011, 06:41 PM

Yes, it is consent. But that consent is only valid until it is withdrawn. Thus, it doesn't apply. Hence why your argument is a strawman.

Really? This is really this hard a concept? On one hand you argue that consent somehow manages to remain after it's been removed, but then when I point out that this is like arguing that my ex-wife's consent 10 years ago is valid today, you claim it has nothing to do with your argument.

Here's the bottom line: consent is only valid until it's withdrawn. She says "I like to be awoken with sexual stimuli". He says "you're a ****". She says "**** you, you're not touching me". He no longer has consent including while she's asleep. He wakes her up with sexual stimuli before she renews that consent, it's sexual assault. That was the way it worked prior to this ruling.

I see no reason to throw the baby out with the bathwater in the manner the Court recently did. Especially not when the only examples of undesirable activity that would be avoided were already considered sexual assault.

First, how long before the decline for sex expires and he is allowed to make another advance? If it had been the next night, or two nights later, would it make a diffference? Would it make a difference if they weren't fighting and she just said, "Not right now, I'm tired,"?
Second, if she woke up enjoying it, is it still sexual assault?

Kev The Green

14th June 2011, 07:12 PM

It actually should be uncontroversial that if someone is unconscious or otherwise incapacitated their ability to consent is non-existent or diminishedIt is and always has been uncontroversial. The issue at stake was whether or not actual prior consent was still valid while unconscious. The court ruled no.

and as the article points out, if the courts had ruled any other way, there would have been no protection for victims of exploitation in this way and they would lose their autonomy. It would have lead to the possibility that a rapist could knock someone unconscious or whatever, and then after that they sexually violate that person it wouldn't be deemed rape as consent then does not apply and the victim would have no recourse to the law to get justice. This is just wrong. It's based on a misunderstanding of the issue being addressed. The idea that you either have to outlaw all sexual contact with unconscious people or it's open season on them is not supportable.

It may not change your position on this, but reading the actual ruling linked to in post #23 will give you a better idea of what the issue at stake is.

Checkmite

16th June 2011, 09:32 AM

alternatively if one partner later has a grievance against the other partner (such as the child custody battle that sparked the case in the op) they can decide at that point to make a complaint to the police, regardless of whether they felt violated or not or felt that they had not consented, because under this law the victims perception of consent or violation is irrelevant.

So?

I can go out and wreck my car in the middle of the night, then run home and report it stolen. Happens a lot. So because such abuse is possible, should auto theft not be illegal? Of course not.

Checkmite

16th June 2011, 09:33 AM

And because you find it "creepy", therefore it should be illegal?

Trying to see where I said that; having trouble.

Checkmite

16th June 2011, 09:36 AM

What makes you think the only person who can bring the charge is the victim? That's completely and utterly false. For example, consider the facts in Lawrence v. Texas:

http://en.wikipedia.org/wiki/Lawrence_v._Texas#Arrest_of_Lawrence_and_Garner

Laws like this are time bombs waiting to go off on innocent people, and they are easily abused by not-so-innocent people to get back at people they don't like.

That's why God invented juries. What was the disposition of that case?

Belz...

16th June 2011, 09:37 AM

Dave Rogers

16th June 2011, 09:40 AM

First, how long before the decline for sex expires and he is allowed to make another advance? If it had been the next night, or two nights later, would it make a diffference? Would it make a difference if they weren't fighting and she just said, "Not right now, I'm tired,"?

I don't see the problem with any of this. If consent is withdrawn, it has to continue to be considered as withdrawn until stated otherwise. It doesn't matter how, or why, she says no; that no stays in effect unless and until she says yes.

Second, if she woke up enjoying it, is it still sexual assault?

If she specifically didn't consent, then of course it is; it should never be a defence to any sexual assault charge that the victim may have enjoyed it. But if she gave consent beforehand, then that's an interesting one. As I understand the ruling, if a woman states, shortly before going to sleep, that she consents to a sexual act taking place while she's asleep, wakes up enjoying it, and states afterwards that she consented to the act and that her consent still stands, then her partner is still guilty of sexual assault. That's an aspect of the ruling that particularly concerns me.

Dave

Dave Rogers

16th June 2011, 09:42 AM

That's why God invented juries.

Verdicts can be directed. If the defence stipulates that the acts alleged by the prosecution were carried out, and the law states that those acts are illegal, the jury may not get any say in the decision.

Dave

3point14

16th June 2011, 09:57 AM

Trying to see where I said that; having trouble.

Er,

Here:

Continuing to have sex with or fondle/caress in a sexual manner someone who is unconscious and can't respond in any way is...creepy, to be quite honest.

Just passing though :)

Belz...

16th June 2011, 10:36 AM

Checkmite didn't say it should be illegal, be he/she did imply that people supporting the freedom of carrying out such actions were a bit off.

Hypothetical person A: "I think this ruling is wrong ! What about people who WANT this in the privacy of their lives ?"
Checkmite: "But, it's CREEPY !!"

I'm sure Checkmite can see the implication that one might detect.

Checkmite

16th June 2011, 10:43 AM

Er,

Here:

Just passing though :)

Referring to the 'therefore it should be illegal' part of course.

Checkmite

16th June 2011, 10:49 AM

Of course, car theft has victims.

Should someone feel violated after waking up to having a sexual act performed on them without consent by someone who, for whatever reason, presumed it would be okay, do they deserve legal recourse?

Checkmite

16th June 2011, 10:53 AM

Verdicts can be directed. If the defence stipulates that the acts alleged by the prosecution were carried out, and the law states that those acts are illegal, the jury may not get any say in the decision.

Dave

Again, so? That's a risk that's present in every single trial for absolutely any alleged offense. It's an argument against the integrity of the US legal system, not this particular law.

BobTheDonkey

16th June 2011, 11:22 AM

Should someone feel violated after waking up to having a sexual act performed on them without consent by someone who, for whatever reason, presumed it would be okay, do they deserve legal recourse?

That's the same red herring/strawman Sgt Baker has been hawking around here. It doesn't work for you for the same reasons it didn't work for her:

That was already considered sexual assault (note the "without consent" condition of your scenario) prior to this ruling and, in fact, this ruling has no bearing whatsoever on that scenario as this ruling is specific to instances where the victim did offer consent.

(It doesn't apply to non-consent cases because, obviously, there is no need for the Court/Parliament to determine if consent was actually provided - in those cases it wasn't. It applies, thus, to only cases where consent was/would be provided by removing the "victim's" ability to consent.)

Belz...

16th June 2011, 11:33 AM

Should someone feel violated after waking up to having a sexual act performed on them without consent by someone who, for whatever reason, presumed it would be okay, do they deserve legal recourse?

Yes. How does this relate to the cases we're talking about, where consent was given, never withdrawn, and confirmed post-awakening ?

Kev The Green

16th June 2011, 11:39 AM

Should someone feel violated after waking up to having a sexual act performed on them without consent by someone who, for whatever reason, presumed it would be okay, do they deserve legal recourse?Just so we're clear on your position how do you feel about this situation. A wife consents to a sex act and consents to having that sex act performed while she is unconscious. The husband performs the exact sex act on his wife that she agreed to and does it while she is unconscious. Is he guilty of sexual assault?

brodski

16th June 2011, 11:59 AM

So?

I can go out and wreck my car in the middle of the night, then run home and report it stolen. Happens a lot. So because such abuse is possible, should auto theft not be illegal? Of course not.
The two cases are in no way comparable.
In one case you are making a false police report and (presumably) attempting to defraud an insurance company, in the other you are engaging in consensual sexual activity with an adult and then getting them sent to gaol for it without lying.

The last bit is the most important bit, this is not a case of false reporting, it is a case where consent is immaterial, not perception of consent, not presumed consent, actually saying the words "I want this" under no duress is not deemed to be good enough- because the court has decided that there is some sexual conduct which adults cannot consent to.

brodski

16th June 2011, 12:00 PM

Again, so? That's a risk that's present in every single trial for absolutely any alleged offense. It's an argument against the integrity of the US legal system, not this particular law.

OK, now I am convinced that you have not read the case that this thread is about.

Checkmite

16th June 2011, 12:49 PM

The two cases are in no way comparable.
In one case you are making a false police report and (presumably) attempting to defraud an insurance company, in the other you are engaging in consensual sexual activity with an adult and then getting them sent to gaol for it without lying.

The last bit is the most important bit, this is not a case of false reporting, it is a case where consent is immaterial, not perception of consent, not presumed consent, actually saying the words "I want this" under no duress is not deemed to be good enough- because the court has decided that there is some sexual conduct which adults cannot consent to.

OK, now I am convinced that you have not read the case that this thread is about.

I'm replying to hypothetical scenarios offered by the people I quoted; scenarios which may differ from the case that the thread is about.

Checkmite

16th June 2011, 12:51 PM

Just so we're clear on your position how do you feel about this situation. A wife consents to a sex act and consents to having that sex act performed while she is unconscious. The husband performs the exact sex act on his wife that she agreed to and does it while she is unconscious. Is he guilty of sexual assault?

I would say that determination is up to the wife.

brodski

16th June 2011, 12:57 PM

I'm replying to hypothetical scenarios offered by the people I quoted; scenarios which may differ from the case that the thread is about.

Ok, can you point out where I (the person your first quest was in response to) made any hypothetical which would be analogous to insurance fraud or where Dave Rodgers (the trigger for your second response which I quoted) mentioned the USA?

Kev The Green

16th June 2011, 01:10 PM

I would say that determination is up to the wife.Sorry about playing 'gotcha', but I wanted to be sure that you actually understood what you were arguing for. It turns out that you don't. The correct answer was 'yes'.

The scenario I quoted was the exact scenario that the Court considered; I didn't add or omit a single relevant detail. Their ruling was that he was guilty regardless. That's now settled Canadian law.

You really should read the ruling. It might not change your position completely, but at least you won't be arguing based on a misconception of what the actual law says

Checkmite

16th June 2011, 01:24 PM

Ok, can you point out where I (the person your first quest was in response to) made any hypothetical which would be analogous to insurance fraud or where Dave Rodgers (the trigger for your second response which I quoted) mentioned the USA?

Yes. My first post was in response your scenario:

alternatively if one partner later has a grievance against the other partner (such as the child custody battle that sparked the case in the op) they can decide at that point to make a complaint to the police,

This strategic abuse of a sex offense law in order to gain an advantage in a child custody dispute that wouldn't otherwise exist seems analogous to abusing auto theft law in order to gain legal advantage (dodging of tickets or responsibility for property damage) when you wreck your car.

As to Dave Rodgers, his assertion was that verdicts can be directed, forcing a conviction under this law even when a jury would otherwise acquit. My response was simply that this risk is inherent in any case under any given law; there's nothing special about this law or interpretation we're dealing with that makes it inordinately susceptible to such a problem.

brodski

16th June 2011, 02:34 PM

Yes. My first post was in response your scenario:

This strategic abuse of a sex offense law in order to gain an advantage in a child custody dispute that wouldn't otherwise exist seems analogous to abusing auto theft law in order to gain legal advantage (dodging of tickets or responsibility for property damage) when you wreck your car.

except it is not abuse of the sex law as drafted and interpreted, it is proper use- in as much as the allegation would not be false, a criminal act wold have been committed even though both parties were fully consenting. And that is the problem, and it is nothing like committing insurance fraud.

Belz...

16th June 2011, 02:36 PM

^
|
This.

Checkmite

16th June 2011, 02:54 PM

'Fully consenting' is the thing at issue, I think. Can a person consent to sex if they're unconscious, and how long is that consent valid? Can I consent right now to someone having sex with me in my sleep three days, a week, two weeks hence, and be then prohibited from complaining after the fact?

See, I've got to confess I'm kind of fanatical when it comes to consent. I go to an extreme - I feel, for instance, that 20 minutes into consensual coitus, a participant has the right to decide to stop at any moment, and if his or her partner proceeds beyond that point I have no problem with that being prosecuted as rape. As opposed to the prevailing view that a 'yes' at the beginning counts as a 'yes' until whenever the man decides he's done.

The thing about sex when someone is sleeping is, a participant loses that right to revoke consent at any time. There's no 'safeword' that an unconscious person can give. My 'yes' two weeks ago being binding when I'm asleep tonight doesn't leave room for the possibility that to tonight sex is the last thing on my mind, so far that it doesn't even occur to me to say "no sex when I'm sleeping please" before I nod off.

For people for whom that's not a problem, again I say that all they have to do is not turn their partner in to the police. Reference to a case that happened over 20 years ago, which seems to literally be the only one of its kind to ever take place and which was eventually overturned anyway is specious, because the state would have to prove the victim was asleep, which without his or her support is impossible.

Belz...

16th June 2011, 05:02 PM

Dave Rogers

17th June 2011, 02:40 AM

As to Dave Rodgers, his assertion was that verdicts can be directed, forcing a conviction under this law even when a jury would otherwise acquit. My response was simply that this risk is inherent in any case under any given law; there's nothing special about this law or interpretation we're dealing with that makes it inordinately susceptible to such a problem.

It was a response, actually, to your suggestion that no jury would convict. The jury is not there to determine what is the law, but rather to determine whether the prosecution has proved its case beyond reasonable doubt. If the defence stipulates that the husband carried out any act of a sexual nature on his wife while she was asleep, then the prosecution's case is proven, and the law mandates a guilty verdict irrespective of what statements of consent were made before or after the act by the wife. The problem, very specifically, is that the Canadian Supreme Court has ruled that in this instance the woman does not have the power to consent to certain acts.

And it's not enough to say that "all they have to do is not turn their partner in to the police." The case we're referring to is itself the ideal example; a partner consented, before and after the fact, and then was in effect able to revoke that consent retrospectively to obtain an advantage in a custody hearing. So all a Canadian woman now has to do in an acrimonious divorce is get her husband to admit that he once snuggled up to her while she was asleep and they were both naked, and suddenly he's a convicted sex offender even if she was completely happy with it at the time.

Criminalising normal behaviour, that harms nobody, is seldom a good idea.

Dave