Supreme Court got it right in ruling against ‘advance consent’

Elizabeth Sheehy, Wednesday, June 1, 2011

A win for women at the Supreme Court of Canada last week in the J.A. decision had a worrying subtext: All three dissenting justices who argued in favour of decriminalizing sex with unconscious “consenting” women were men.

The majority in the 6-3 decision, written by Chief Justice Beverley McLachlin and joined by the other three female and two male justices, ruled against the idea of “advance consent” to sexual assault. They properly concluded there can be no consent in law when a woman is unconscious.

The three dissenting justices argued that it would further women’s right to autonomy to create a new doctrine of “advance consent,” so that unconscious women can have “sexual adventures.” But can unconscious women enjoy sexual pleasure or exercise autonomy? Unconsciousness is the very antithesis of autonomy.

At the very least, this view represents an impoverished understanding of “autonomy.” It is also terribly abstracted from the reality of women’s lives, in which the sexual assault of women who are unconscious, whether from intoxication, medications, episodic disability or other causes, is a serious and widespread social problem.

The woman complainant purportedly “agreed” to being strangled unconscious, bound and penetrated with a dildo. But the top court was not permitted to consider the full context of this alleged consent, which was that the offender, J.A., was an abuser with a criminal record of weapons and violent offences, including two previous convictions for assaulting the complainant.

It’s also true that the majority decision says there are no exceptions for husbands and wives or cohabiting couples: Sexually touching your sleeping partner puts you at risk of criminal prosecution. Understandably, for many people, this sounds like dangerous state intervention.

But think about it: If men and women in their relationships honestly give permission for such conduct, the criminal courts will never hear about it.

Who will report it? Will police set out on their own to find these cases?

Will prosecutors drag the women and men to court? Who will bear witness to the crime by testifying?

The only cases we can expect to see will be those arising out of exactly the kinds of relationships that the complainant was caught up in: violent ones -where “consent” is extracted through coercion, control and abuse. Those are the women who may show up to file sexual assault complaints. And they won’t be saying their husbands gave them a tender kiss while they slept.

Moreover, the argument that the law should not apply to cases at the margins is not unique to sexual assault, but is true across the spectrum of criminal offences. Theft of a dollar is still theft. Yet we don’t carve out a statutory exception for this offence, or any other.

The law of consent, on the books for over 20 years, was enacted by Parliament with input and support from a broad base of women’s organizations. It addresses the pervasiveness of sexual assault and aims to protect women from sexual violence. The requirement that consent be conscious, continuing, contemporaneous with the sexual activity and revocable at any point is a cornerstone of this legislation.

Luckily for Canadian women and men, the majority of the Supreme Court last week understood the stakes in the litigation. Recognition of “advance consent” would have undermined the entire legislative framework for identifying sexual assault, including the requirement that men take “reasonable steps to ascertain consent.” The ruling means the only reasonable step that will suffice when a woman is unconscious is to wake her before proceeding to sexual acts.

It also says married and cohabiting women are entitled to the same protection in criminal law as other women: There are no exceptions to the law of consent for certain categories of women or relationships.

Finally, strangulation is a significant risk factor for intimate femicide.

Allowing “advance consent” would have risked normalizing abusive and potentially lethal behaviour. It also would have made it effectively impossible to prosecute the assault of unconscious women. The high court’s clear ruling that unconscious women are sexually unavailable is a welcome and clear message for the Canadian public.

Elizabeth Sheehy was counsel for the Women’s Legal Education and Action Fund in the J.A. case, and is a professor in the faculty of law, University of Ottawa.