TORONTO, Canada — Yes, people in Canada have sex and sometimes it’s so weird and troubling it needs to be adjudicated by the country’s top court.
In a split decision, the Supreme Court of Canada today ruled that a person must be conscious in order to consent to a sexual act.
The ruling restored the sexual assault conviction of an Ottawa man who choked his common-law spouse unconscious, bound her hands behind her back and penetrated her with a sex toy.
The couple, identified only as J.A. and “his long-term partner” K.D., occasionally included “erotic asphyxiation” in their foreplay. They even reportedly had a safe word — "Tweety Bird" — in case things got out of hand.
But that’s what clearly happened one evening in 2007.
J.A. squeezed his hands tightly around K.D.’s neck, with her consent, until she passed out. When she came to minutes later, she was being sodomized and her hands were bound behind her back. K.D. complained to police that her consent did not include anal penetration.
Writing for the court majority, Chief Justice Beverley McLachlin said “on-going, conscious consent” is required “to ensure that individuals engaging in sexual activity are capable of asking their partner to stop at any point.”
“I conclude that the [Criminal] Code makes it clear that an individual must be conscious throughout sexual activity in order to provide the requisite consent.”
The decision was a relief to Canadian feminists, who had warned the case might erode decades of reforms that had clearly enshrined in law the concept of “no means no.” Rapists, they feared, could once again claim their victims had given prior consent before passing out from drugs or alcohol.
“You are basically saying: ‘I’m your sex slave. You can have sex with me when I’m not there,’ ” University of Ottawa law professor Elizabeth Sheehy had warned in an interview last year.
But Friday’s decision was not nearly unanimous. Three of the nine judges dissented, citing among other things, mitigating circumstances.
K.D. acknowledged, for instance, that the couple had sex immediately after the choking incident. Nor did she actually complain to police until two months after the incident, and only after J.A. said he wanted sole custody of their 2-year-old child. She also later recanted her testimony.
Those factors had figured in the overturning of the man’s original conviction for sexual assault — and his 18-month sentence — by a provincial appeals court.
Beyond the facts of the case, the dissenting judges said there were disturbing legal implications for the exercise of free will. The provisions of the Criminal Code regarding consent “were intended to protect women against abuse by others. Their mission is not to protect women from themselves.”
“Put differently, they aim to safeguard and enhance the sexual autonomy of women, not make choices for them.”
In addition, they said, the ruling was an unwarranted intrusion in the private affairs of Canadian couples and risked criminalizing simple acts of affection: “Cohabitating partners across Canada, including spouses, commit a sexual assault when either one of them, even with express prior consent, kisses or caresses the other while the latter is asleep.”
That’s an argument with faint echoes of the past.
The court and Canadians in general have a long history of tolerance in private sexual matters. It was a former prime minister, Pierre Trudeau, who famously said "there's no place for the state in the bedrooms of the nation. What's done in private between adults doesn't concern the Criminal Code."
In the late 1960s under Trudeau, Canada decriminalized homosexual acts, and legalized contraception and abortion. The Supreme Court struck down restrictive abortion laws in the 1980s and, in 2004, said gay marriage was protected by the constitution.
With today’s ruling, however, the court clearly decided it had some role to play between the sheets.