"Men Guilty of Sexual Assault If They Touch Her While She Sleeps:" Supreme Court

[JoelKatz]

That's why God invented juries. What was the disposition of that case?The problem is that judges can limit juries to seeing only the "relevant" facts and can easily pressure juries into following the law whether the law makes sense or not. As a result, juries are not an adequate check on a bad law.

The disposition of that case was that they didn't risk a jury and plead guilty, retaining the right to challenge the Constitutionality of the law. (If you're facing 10 years in jail if convicted by a jury or a $200 fine, and you're technically guilty of violating the law, you'll take the fine, if you're rational.) That challenge was considered a massive long shot, by the way.

[sgtbaker]

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.)

Yes because drudging up something I said, 8 pages earlier in response to an anology that someone else created, bearing only a slight resemblance to this case, and then arguing that I am wrong because that post doesn't compare to this case; is certainly not a strawman. Nice to meet you pot, I'm kettle.

[Checkmite]

So would I.

The Canadian court disagrees.

Well, Canada is weird; so there's that.

[Belz...]

Well, Canada is weird; so there's that.

We're a nanny state, for better or for worse.

[BobTheDonkey]

Yes because drudging up something I said, 8 pages earlier in response to an anology that someone else created, bearing only a slight resemblance to this case, and then arguing that I am wrong because that post doesn't compare to this case; is certainly not a strawman. Nice to meet you pot, I'm kettle.

Actually, it applies directly to the example we were discussing just a page or two ago. You know, the scenario where you presented a woman who said "no" and a man who waited till she fell asleep.

You know, that scenario where consent was not provided - and then you argue that somehow this ruling applies to that scenario. As I've pointed out, it doesn't - because that scenario doesn't deal with a situation where consent was provided by both adults prior to the sexual activity.

But, don't mind me pointing out the problems with your scenarios not connecting to this particular court case ;)

[sgtbaker]

Actually, it applies directly to the example we were discussing just a page or two ago. You know, the scenario where you presented a woman who said "no" and a man who waited till she fell asleep.

You know, that scenario where consent was not provided - and then you argue that somehow this ruling applies to that scenario. As I've pointed out, it doesn't - because that scenario doesn't deal with a situation where consent was provided by both adults prior to the sexual activity.

But, don't mind me pointing out the problems with your scenarios not connecting to this particular court case ;)

It was post 465 that you brought it up after it sat for many pages, which pretty much solidifies my theory that you are, in fact, stalking my posts. Mind you, in my next post, I was also the one that said it was irrelavent to this case. Now let's go back and see.

Sorry to have to point this out but it seems that I was seperating the two cases.

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.
See above is where I was talking about the scenerio you resurrected.

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.

I seperated them into paragraphs because I was talking about two different scenerios. The highlighted was where I thought I was making it clear that they were different situations and the only similarity between the two was that one of the two parties is not conscious.

Now, quite honestly, if you have anything further to accuse me of, send me a PM because I feel really bad about hijacking a very interesting topic, going tit for tat with you.

[gumboot]

All people should be required to have these things when they have sex with or do other sex-like things to other human beings:


Birth certificates or other identifications that proves that all parties are of legal age
A written statement declaring that all parties are consenting and of sound mind
A toxicology report showing that said persons are free of any narcotics or drugs that might have affected their ability to consent
Notes related to a medical check-up showing that all parties are free of sexually transmitted diseases
And finally, a videotape showing the sex so that everyone can clearly see that all the sexual activity was nice, consensual and legal (this might not be included if one of the parties are old enough to consent to sex yet young enough to be considered a 'child', since that would have created outrageously evil child pornography. A sound recording, or possibly a written log of all the words said and sexual acts that took place, could work as substitute)


Anyone that does not have all of these things is clearly asking to be punished to the full extent of the law.



And don't forget, since consent must be given continually, each partner must cease their sexual activity at regular intervals (say every five minutes) to inquire as to whether their partner still continues to consent or not.

[JoelKatz]

'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?It depends. The person can consent for any time frame they want to. And they can always withdraw that consent if they want to. People are free to consent however they please.

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.Of course. The law does not accept any form of irrevocable consent. You can get someone to sign a consent contract in triplicate, but if they can convince a jury they said "stop" in the middle of the act and you didn't stop, it's rape. That's the law, and I don't think anyone disagrees with that.

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.No, they still have the right to revoke consent at any time. They lose the *ability* to revoke consent. But there are many times when we temporarily lose the ability to revoke consent. You can't revoke consent during an orgasm. You can't revoke consent when your mouth is closed. That's why we have a simple rule -- you need an objectively reasonable belief that you have consent.

People normally give consent that can be reasonable construed to extend through brief periods of inability to revoke consent. They don't normally give consent that can be reasonably construed to extend through unconsciousness with the exception of things like snuggling or falling asleep during sex. The crux of the question is whether the consent was reasonably construed. But you are free to give stronger versions of consent if you wish to, with the exception that you cannot give irrevocable consent. (We don't accept sexual slavery agreements any more than we accept any other kind of slavery agreement.)

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.I agree. That's probably why you most people wouldn't give a consent that can be reasonable construed to apply two weeks later. But you have the right to give that kind of consent if you wish to.

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.That doesn't work, for the reasons that have been discussed to death in this thread. Your partner's cooperation is not needed for charges to be brought.

[BStrong]

I know if I pulled this on my girl, I wouldn't need to worry about arrest, prosecution and conviction.

I'd die of lead poisoning.

[Belz...]

Lead poisoning ? What's in her skin ???

[Checkmite]

And don't forget, since consent must be given continually

Don't be a choad. Nobody ever said consent has to be "given continually". But the capability of withdrawing consent must always be there; otherwise you (as the conscious actor doing something to an unconscious person) should consider yourself open to being accused of taking advantage, I think. Do it if you're willing to take that chance, I suppose; but I believe in protecting the rights of someone who feels violated waking up to their partner doing something to them sexually, and that "we're married" or "I did this once before and you don't complain" are not and should not be get-out-of-trouble-free cards.

[Checkmite]

It depends. The person can consent for any time frame they want to. And they can always withdraw that consent if they want to.

How does a sleeping person withdraw consent?

[BobTheDonkey]

Don't be a choad. Nobody ever said consent has to be "given continually". But the capability of withdrawing consent must always be there; otherwise you (as the conscious actor doing something to an unconscious person) should consider yourself open to being accused of taking advantage, I think. Do it if you're willing to take that chance, I suppose; but I believe in protecting the rights of someone who feels violated waking up to their partner doing something to them sexually, and that "we're married" or "I did this once before and you don't complain" are not and should not be get-out-of-trouble-free cards.

I don't believe anyone has argued that those are get-out-of-jail-free cards except for the strawmen arguments like what you just presented.

What we've argued, on the other hand, is that people should be allowed to consent to sexual activity being performed while they are unconscious. As it currently stands, people in Canada are not able to provide consent to these activities.

As I've explained previously, you're arguing the same fallacious arguments that have been presented and explained before. They simply don't apply here. "We're married, I can do what I want" is a strawman in this discussion as it's covered under previous understanding of consent laws. Same goes for "you enjoyed it last time". Neither of those indicate that consent was given for the current session of unconsciousness. Those are not affected by this ruling because this ruling simply states that whether the adults want to give consent or not, he/she cannot.

[BStrong]

Lead poisoning ? What's in her skin ???

It's not what's in her system, it's the .45 she'd shoot me with.

[Kev The Green]

but I believe in protecting the rights of someone who feels violated waking up to their partner doing something to them sexually, and that "we're married" or "I did this once before and you don't complain" are not and should not be get-out-of-trouble-free cards.Quite honestly, this far into the thread, it's a tad offensive that you would be implying that those of us who disagree with you don't believe this also. As has been repeatedly pointed out, this is a strawman that has nothing to do with the issue at hand.

From the dissent:
[76] I agree as well that prior consent affords no defence where it is later revoked or where the ensuing conduct does not comply with the consent given.

That's the other way that the Court could have ruled. There is simply no way that using the dissent instead of the majority ruling would have allowed the type of abuse that you suggest.

It really seems like you're not basing your opinion on the actual ruling. You really should read it, especially the dissent. You might find that your concerns could have been addressed without declaring that a significant number of Canadians, men and women, now commit sexual assault on a regular basis,

[Rasmus]

How does a sleeping person withdraw consent?

How does a sleeping person change their mind?

[JoelKatz]

How does a sleeping person withdraw consent?It is not possible for a person who does not wish to withdraw consent to withdraw consent.

[sgtbaker]

Don't be a choad. Nobody ever said consent has to be "given continually". But the capability of withdrawing consent must always be there; otherwise you (as the conscious actor doing something to an unconscious person) should consider yourself open to being accused of taking advantage, I think. Do it if you're willing to take that chance, I suppose; but I believe in protecting the rights of someone who feels violated waking up to their partner doing something to them sexually, and that "we're married" or "I did this once before and you don't complain" are not and should not be get-out-of-trouble-free cards.

*one minor nitpick: the law specifically does require continuous consent, through word or expression, throughout each individual act.

I agree 100% with what I highlighted in your statement. I also agree with the law being clear on that matter. I just don't think you are clear on what was being discussed. Their problem is not with the idea of not being allowed to have sexual contact with an unconscious partner, their problem is that even if the (soon to be) unconscious partner gives permission to have a specific sexual act performed on them while they are unconscious, immediately before they go unconscious, Canada still considers it sexual assault.