May 27, 2011, Toronto<\/b> — The Supreme Court of Canada rendered its decision today in the case of R. v. J.A.<\/i>, a case in which an accused charged with the sexual assault of his unconscious common-law spouse argued that the complainant had consented to the sex \u00ab\u00a0in advance\u00a0\u00bb. LEAF intervened in the appeal to argue that there can be no such thing as \u00ab\u00a0advance\u00a0\u00bb consent to unconscious sex. Consent must always be active, voluntary, ongoing and contemporaneous with the sexual act. In a 6-3 decision, the Supreme Court of Canada agreed.<\/p>\n\n\n\n
\u00ab\u00a0The Court reaffirmed the last 20 years of equality-driven developments in the law of sexual assault\u00a0\u00bb explains LEAF Legal Director, Joanna Birenbaum. \u00ab\u00a0The decision confirmed what is already clear in the Criminal Code and what is, or should be, common sense. When a woman is unconscious she is not sexually available. Any sexual act perpetrated on an unconscious woman, who is unable to say \u00ab\u00a0yes\u00a0\u00bb or \u00ab\u00a0no\u00a0\u00bb, is assault. This is a simple proposition. And it is uncontroversial.\u00a0\u00bb<\/p>\n\n\n\n
The facts of the case involve an abusive spouse who strangled the complainant into unconsciousness and, while she was unconscious, bound her and penetrated her anally with a dildo, at which point the complainant came-to. The accused argued that the complainant had consented to the strangulation and had consented \u00ab\u00a0in advance\u00a0\u00bb to the sexual acts performed on her body while unconscious. The trial judge convicted the accused of, among other charges, sexual assault. The Ontario Court of Appeal overturned the conviction on the basis that the complainant had consented in advance to the sexual acts performed on her while unconscious.<\/p>\n\n\n\n
The Supreme Court of Canada restored the conviction and held that \u00ab\u00a0an individual must be conscious throughout the sexual activity in order to provide the requisite consent\u00a0\u00bb and that \u00ab\u00a0the definition of consent…requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement.\u00a0\u00bb<\/p>\n\n\n\n
\u00ab\u00a0This decision offers important protection for women who are most vulnerable to sexual assault\u00a0\u00bb explains LEAF counsel Elizabeth Sheehy. \u00ab\u00a0Women who are unconscious because of drugs or alcohol, whether taken voluntarily or involuntarily, or because of disability, are sexually assaulted at shockingly high rates, often with impunity for the offenders. This decision ensures that predatory men cannot rape unconscious women and then say \u00ab\u00a0well, she said it was OK before becoming unconscious.\u00a0\u00bb<\/p>\n\n\n\n
Birenbaum adds that \u00ab\u00a0the decision also affirms the law, taken for granted by most if not all Canadians, that a wife can say \u00ab\u00a0no\u00a0\u00bb to sex with her husband.\u00a0 Consent cannot be assumed from the spousal relationship. \u00a0The fact that a spouse, or any woman, said \u00ab\u00a0yes\u00a0\u00bb at some point in the past, is not a perpetual consent to sex.\u00a0 Sexual partners have an obligation to ensure consent on an ongoing basis.\u00a0 Women must always have the right to withdraw consent at any moment.\u00a0 Withdrawal of consent is simply not possible when a woman is unconscious.\u00a0\u00bb<\/p>\n\n\n\n
-30-<\/b><\/p>\n\n\n\n
For more information contact:<\/p>\n\n\n\n
Joanna Birenbaum<\/b><\/p>\n\n\n\n
LEAF Legal Director<\/p>\n\n\n\n
(647) 500-3005 (cell)<\/p>\n\n\n\n
(416) 595-7170 ext. 223 (office)<\/p>\n\n\n\n
Elizabeth Sheehy<\/b><\/p>\n\n\n\n
LEAF co-counsel<\/p>\n\n\n\n
(613) 240-7119 (cell)<\/p>\n\n\n\n
Susan Chapman<\/b><\/p>\n\n\n\n
LEAF co-counsel<\/p>\n\n\n\n
(416) 509-7121 (cell)<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_acf_changed":false},"categories":[210,17],"tags":[],"class_list":["post-6163","news","type-news","status-publish","hentry","category-leaf-cases","category-media-releases"],"acf":[],"yoast_head":"\n