OTTAWA, Ontario—The Supreme Court of Canada has begun hearings into a case that involves the ability of a sexual partner to consent to sexual activity that takes place while the person is unconscious. The case, Her Majesty the Queen v. J.A., has already been adjudicated by a lower court, which found the Respondent guilty, and an appeals court, which reversed.
The couple in question had been together for several years and had a child when they decided to begin engaging in kinky sexual activity, including erotic asphyxiation—sometimes called “breath play”—and also anal sex. The sex act that the government is calling an assault took place in 2007. According to testimony, all parties agree that the couple had experimented with auto asphyxiation previously, and also anal sex, but never at the same time, until that evening, when they talked through what was permissible and not permissible before engaging in the activity.
“While [K.D.] was unconscious,” the Respondent’s factum (complaint) states, “the Respondent bound her hands behind her back with white cable ties and inserted a dildo into her rectum. When she regained consciousness, the consensual sexual activity continued, and they had vaginal sex. Late on, when she wished to stop, K.D. used the ‘safe word’ they had established previously—‘tweety bird’—to signal that she wished to have her hands cut loose. The Respondent promptly unbound her hands.”
Sexual activity continued afterwards, including vaginal sex, and according to the factum, “The Respondent and K.D. spent the rest of the evening watching late-night television and then went to bed.”
The kinky sex only became an issue about a month and a half later, following a quarrel between the two, when, according to J.A., K.D. made a false complaint in July of 2007 “in an effort to secure custody of their son. Her uncontradicted evidence was that, months after the incident, the Respondent had threatened to seek sole custody of their child during an argument, and she could not take the risk that these were idle threats made in anger. Her uncontradicted and unchallenged testimony at trial was that her police complaint was a lie intended to ensure that the Respondent would not be able to gain sole custody of their son.”
According to a summary of the case on the Supreme Court website, “In convicting the Respondent of sexual assault, the trial judge concluded that while the complainant and the Respondent had previously discussed anal penetration, there was never any consent. The trial judge also concluded that the complainant could not legally consent in advance to sexual activity while unconscious.
“The majority of the Court of Appeal allowed the appeal, set aside the Respondent’s convictions and dismissed the charges,” the summary continues. “It found that the evidence led at trial was insufficient to support a finding that the complainant did not consent. The majority also concluded that there was no basis for holding that, as a matter of general principle, a person cannot legally consent in advance to sexual activity expected to occur while that person is unconscious or asleep, and that if anything, a review of the relevant case law supports the opposite conclusion.
“LaForme J.A., dissenting, would have dismissed the appeal, finding that prior consent is not effective as a matter of law because unconsciousness deprives the person consenting of the ability to express consent or know whether they are consenting at the time the sexual activity occurs.”
The High Court will now decide “whether the majority of the Court of Appeal erred by concluding that the complainant could in law consent in advance to sexual activity that occurred while she was unconscious.”
Not all observers of this case are confident that the Court will come down in favor of K.D.'s abilty to consent before the fact to kinky sex that includes erotic asphyxiation.
According to the gay and lesbian news site, Xtra.ca, "The Supreme Court of Canada has a spotty record when it comes to BDSM sexuality. The longstanding Butler decision, for instance, holds that BDSM sex is inherantly 'harmful' and that 'degrading' pornography is obscene."
The sub-sections of the Criminal Code of Canada relevant to this case are:
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Accused's belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
The Respondent's Factum can be read here.
The Appelant's Factum can be read here.