Slog
News & ArtsMonday, April 12, 2010
Sex Canadian Supreme Court Chokes On Tough Case
Posted by Dan Savage on Mon, Apr 12, 2010 at 9:36 AM
Can a person legally consent to sexual activity that will take place after that person is rendered unconscious?
No, say feminist legal scholars, because consent has to be "revocable at any time," and a person can't withdraw her consent if she's not awake. Yes, say the lawyers defending the man who choked his wife into unconsciousness before penetrating her with a dildo, because the state shouldn't tell people that they can't "consent to having their bodies used in those ways," we consent in advance to surgery before being put under, and besides telling people they can't consent in advance to unconscious dildo play, “degrades our humanity.”
The Canadian Supreme Court will get the last word. (This seems to have been overlooked in the debate about consciousness and consent: choking "games" are extremely unsafe.)
1
...and there's so much legal precedent for imposing our stated *wills* after we die (when we presumably have lost our ability to revoke our consent) including deposition of our bodies. hell - all of contract law is based upon prior agreement being held to a degree non-revocable . what a fascinating legal conundrum! - thankee Dan.
3
Re: choking games are dangerous
So is getting hit in the head with a hockey stick, but we allow our fellow citizens to consent to that.
So is getting hit in the head with a hockey stick, but we allow our fellow citizens to consent to that.
4
Choking games are extremely unsafe. So is surgery sometimes. So are lots of other things. That doesn't mean people can't consent to it.
5
Dan, you forgot to add, "Ewww!"
I think I'm siding with the feminists/rational people. This seems like a true and salient statement: “Consent ends when the active, independent, operating will ceases.”
On the other hand I might like meeting a guy with a fetish for role playing "the sleeping sex slave"! It's permission to lie there and do nothing!
I think I'm siding with the feminists/rational people. This seems like a true and salient statement: “Consent ends when the active, independent, operating will ceases.”
On the other hand I might like meeting a guy with a fetish for role playing "the sleeping sex slave"! It's permission to lie there and do nothing!
6
I must agree with Mr. Savage on this matter; the crux is not whether she possessed the ability to give consent, but the innate dangerousness of such an act. Imagine if it were permitted to play "William Tell" without consequences.
7
More to the point, the innate dangerousness of the act possesses no potential life-saving consequences that certain high-risk surgeries (primarily for people already in danger of dying) do.
9
Being that this would take place in canada there's a good chance that the court will rule that sex ( to canadians: chocking another person into unconsciousness ) is just like surgery.
10
Not weighing in on the consent issue at all: the dangers of breath play are greatly exaggerated, or perhaps more accurately, people don't differentiate between different breath play activities that have vastly different levels of risk. Auto-erotic asphyxiation is a killer, there's no doubt about that; but an amazingly large population chokes each other silly in judo, brazilian jiu jitsu, mixed martial arts, and other related sports all the time without ill effect. There are medical studies of judo players that suggest there's neither a short term or cumulative effect to the amount of choking (which includes occasionally to unconsciousness) that takes place in the sport.
11
This is interesting in the context of feminism. On one hand, you have the fact that consent needs to be revocable at any time, but on the other hand, legislating that sexual acts are illegal when the recipient is unable to revoke previously given consent IS placing society's laws on one's body, which is strongly opposed by the feminist movement. I have to side against the "feminist legal scholars" and say "my body, my decisions" and if I want to tell someone that if I pass out cold tonight, they can go to town, I want that right. This could cause precedent for making impaired (drunk, stoned, etc.) sexual acts illegal, under the guise that one is not able to revoke consent if one is too impaired. Not a world I want to live in.
12
@7: "Life-saving?" No. But they clearly derive some benefit from it. Who are you to judge whether that's worth the risk?
13
There are two issues of interest in this case. One being whether you can consent to an activity that will cause you bodily harm. The crown argued at one point that choking someone unconscious constitutes assault causing bodily harm whether the choke consented or not. This rationale would capture a lot of consensual activity that may cause “non-trivial bodily harm” such as bruising or draw blood. I’d rather not see that happen. I don’t really want judges deciding the social value of an activity before determining whether or not I can consent to it. We need a more principled approach than that.
The second is whether you can consent to any sexual activity performed once you are unconscious. The court focused almost entirely on this issue. Both are interesting.
The second is whether you can consent to any sexual activity performed once you are unconscious. The court focused almost entirely on this issue. Both are interesting.
14
@9 ............ *pat* It's okay, dear. Go back to your cartoons and colouring with crayons :) Let the adults have their discussion, okay?
Anyhow, from my understanding of this, it sounds like this wasn't the first time it had happened. Meaning that she had given consent for things before.... It's really fucking dangerous, but I can't see this as being equivalent to rape :/ I don't really know the full situation, though.
Anyhow, from my understanding of this, it sounds like this wasn't the first time it had happened. Meaning that she had given consent for things before.... It's really fucking dangerous, but I can't see this as being equivalent to rape :/ I don't really know the full situation, though.
15
#11 "Not a world I want to live in."
You already live in that world. Sex is not consensual if someone is too drunk to give consent. That's already the law most places.
The picture you paint of feminism is also a tad 1 dimensional. I don't think feminists have blanket denial that laws restrict bodies, and the point of feminism is not to have blanket opposition to laws doing so. Feminism is a movement against sexism and sexist oppression. Laws should protect people likely to be victimized.
You already live in that world. Sex is not consensual if someone is too drunk to give consent. That's already the law most places.
The picture you paint of feminism is also a tad 1 dimensional. I don't think feminists have blanket denial that laws restrict bodies, and the point of feminism is not to have blanket opposition to laws doing so. Feminism is a movement against sexism and sexist oppression. Laws should protect people likely to be victimized.
16
I'm fascinated by the array of people taking it on faith that 'choking people is dangerous'. Driving your car is more dangerous and statistically more likely to kill people.
If you spend 10 minutes doing some basic research, and acquire some basic tips "don't crush the windpipe", "don't apply traumatic force to the throat", etc. you can proceed with relative safety. The BSDM anti-choking brigades (Hi Jay Wiseman!) have made the notion of bloodflow/breathing restriction into something that is INSTANT MURDER AND DEATH.
quick quiz! how many people have died in judo, bjj, mma, or any other competition where choking your opponent out is allowed, as a result of the choke?
also that Control Tower article is about auto-erotic asphyxia, and not what is being talked about. I expect better from Dan Savage on these kinds of topics.
If you spend 10 minutes doing some basic research, and acquire some basic tips "don't crush the windpipe", "don't apply traumatic force to the throat", etc. you can proceed with relative safety. The BSDM anti-choking brigades (Hi Jay Wiseman!) have made the notion of bloodflow/breathing restriction into something that is INSTANT MURDER AND DEATH.
quick quiz! how many people have died in judo, bjj, mma, or any other competition where choking your opponent out is allowed, as a result of the choke?
also that Control Tower article is about auto-erotic asphyxia, and not what is being talked about. I expect better from Dan Savage on these kinds of topics.
17
Hang on a minute, everyone is missing the point. Why the hell did he penetrate her with a *dildo* after making her black out. That won't stimulate anyone. It makes no sense!!
18
@15 You mean two-dimensional. Two-dimensions renders something flat and one sided. One-dimensional is a theoretical place having no mass, volume, or dimensions.
19
So was Mrs. Breathplay not into being penetrated with the dildo while she was unconscious? It seems like she wasn't down with being penetrated (which would explain why she reported it when she woke up) which means that there wasn't consent even BEFORE she blacked out. If that's the case then the issue of whether someone can give consent before they're unconscious doesn't seem to apply.
20
Why is this in the court system at all? Did she choke to death? How did this story make it out of the bedroom?
21
That's not quite acurate. You can read the actual court of appeal decision here.
http://www.canlii.org/en/on/onca/doc/201…
http://www.canlii.org/en/on/onca/doc/201…
22
Link didn't seem to work. Here is an excerpt from the case summary.
"The complainant on all of the charges was the appellant’s intimate partner and the mother of the couple’s son. She testified that she consented to the appellant choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. She explained that she complained to the police about the incident about a month and a half after it happened as a result of an argument with the appellant."
"The complainant on all of the charges was the appellant’s intimate partner and the mother of the couple’s son. She testified that she consented to the appellant choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. She explained that she complained to the police about the incident about a month and a half after it happened as a result of an argument with the appellant."
23
In that case it's fucking stupid that this is going to trial. If you have a person who consented before the act and consented after the act then there's a continuous consent that should apply.
24
So some types of sexual activities should be illegal because some people are too stupid to understand what consent is?
I don't see why the sexual activity has any relevance in this case. The only thing that should be a trial is whether or not you can allow to be choked by someone else.
I don't see why the sexual activity has any relevance in this case. The only thing that should be a trial is whether or not you can allow to be choked by someone else.
25
@24 I've got a big fat where do you draw the line on that? As someone into D/s play, I've done many things that could be construed as assault under non-consensual circumstances - but that doesn't mean it should be illegal. Of course, breath play is a lot more dangerous than most other sorts of activities, but kinksters with proper education and training can pull off a lot of things.
Also, this woman sounds like a real bitch - fully consenting and then reporting it months later because she got pissed at the guy. No case.
Also, this woman sounds like a real bitch - fully consenting and then reporting it months later because she got pissed at the guy. No case.
26
@18 I think they are both apt spacial metaphors ;-)
@25 It's not "her" case. In both the US and Canada prosecutors do not need the victim's cooperation to try someone for a criminal offense.
@25 It's not "her" case. In both the US and Canada prosecutors do not need the victim's cooperation to try someone for a criminal offense.
27
Being that this would take place in canada there's a good chance that the court will rule that sex ( to canadians: chocking another person into unconsciousness ) is just like surgery.
I'm not sure what "chocking" is, but did you just make a sweeping, disparaging generalization about 33 million people based on the behaviour of 2 of their number? In other words, precisely the type of thing you rail about (yet still engage in) all the time?
I'm not sure what "chocking" is, but did you just make a sweeping, disparaging generalization about 33 million people based on the behaviour of 2 of their number? In other words, precisely the type of thing you rail about (yet still engage in) all the time?
29
what if you take the danger out of it?
what if one partner consents and then knocks themselves out with healthy dose of ambien?
what if one partner consents and then knocks themselves out with healthy dose of ambien?
30
Two things. First, it's incredibly stupid to choke or allow oneself to be choked by someone to the point of unconsciousness, especially when you have children and they will be the ones to suffer most when one of their parents dies and the other gets sent to prison for killing him or her.
Second, the article linked here isn't very informative. The woman reported several weeks after the incident that her partner had "violated her" with a dildo while she was unconscious. What does any of that mean? Did they have a specific agreement with regard to sexual activity while she was unconscious that didn't include dildos, or was the game purely supposed to be about choking the person into unconsciousness? Much should hinge on the answers to those questions.
The bottom line is that these people had an 8-year relationship clearly built on a lot of trust. Taking the stupidity/dangerousness element and the alleged violation out of the equation for a moment, why should it not be possible to give prior consent to a planned act that will take place when one is unconscious? If you trust someone enough to let them choke you to the point of blacking out, and if you can consent to that activity, then clearly you can also consent to them performing specific acts on your unconscious body. There's no real difference between that situation and people who do scenes where one partner is restrained to the point of incapacitation and rendered unable to communicate by hoods/gags etc. We assume that the restrainee in the latter situation has given prior consent to whatever activities may occur, even if they happen, with their full consent, to be rendered for all intents and purposes unable to withdraw that consent during the scene.
Second, the article linked here isn't very informative. The woman reported several weeks after the incident that her partner had "violated her" with a dildo while she was unconscious. What does any of that mean? Did they have a specific agreement with regard to sexual activity while she was unconscious that didn't include dildos, or was the game purely supposed to be about choking the person into unconsciousness? Much should hinge on the answers to those questions.
The bottom line is that these people had an 8-year relationship clearly built on a lot of trust. Taking the stupidity/dangerousness element and the alleged violation out of the equation for a moment, why should it not be possible to give prior consent to a planned act that will take place when one is unconscious? If you trust someone enough to let them choke you to the point of blacking out, and if you can consent to that activity, then clearly you can also consent to them performing specific acts on your unconscious body. There's no real difference between that situation and people who do scenes where one partner is restrained to the point of incapacitation and rendered unable to communicate by hoods/gags etc. We assume that the restrainee in the latter situation has given prior consent to whatever activities may occur, even if they happen, with their full consent, to be rendered for all intents and purposes unable to withdraw that consent during the scene.
31
@30
She gave consent but later changed her mind when she got pissed at her husband. She changed her mind again but by then the Crown (the state) decided her personal opinion was now irrelevant.
Most of the time the system works this way to protect people like battered wives who pussy out after filling a complaint against their husbands.
But in this case, husband and wife seem just too stupid to breathe...
She gave consent but later changed her mind when she got pissed at her husband. She changed her mind again but by then the Crown (the state) decided her personal opinion was now irrelevant.
Most of the time the system works this way to protect people like battered wives who pussy out after filling a complaint against their husbands.
But in this case, husband and wife seem just too stupid to breathe...
32
LC, thank you for hating Canadians.
It makes me happy when people like you hate me, because it reassures me that I'm right.
Love and kisses.
It makes me happy when people like you hate me, because it reassures me that I'm right.
Love and kisses.
33
They can't possibly make consent to choking illegal, because that would make Brazilian jiu jitsu illegal. And, btw, I do BJJ, and it's not true to say that people get choked out all the time. Choked -- yes; choked OUT -- no. You TAP when you feel dizzy. Actually passing out from a choke is pretty rare. It happens, yes -- but not frequently. Example: In my 1.5 years in the sport I've seen someone in my club pass out from a choke exactly once.
I don't understand what the legal question is, frankly. If you can't give consent in advance to acts that will be done when you're unconscious, then you can't have surgery. Period.
Also: the feminists who argue that consent should be revocable at all times forgot an important thing. WHY in the first place is it so important that consent is revocable at all times? Because the person can *change their mind* about consenting, and should be able to act on the change of mind, if it happens. But how can someone change their mind while being unconscious?! The reasoning that consent should be revocable just doesn't apply to this situation at all!
I don't understand what the legal question is, frankly. If you can't give consent in advance to acts that will be done when you're unconscious, then you can't have surgery. Period.
Also: the feminists who argue that consent should be revocable at all times forgot an important thing. WHY in the first place is it so important that consent is revocable at all times? Because the person can *change their mind* about consenting, and should be able to act on the change of mind, if it happens. But how can someone change their mind while being unconscious?! The reasoning that consent should be revocable just doesn't apply to this situation at all!
34
Oof, this is a tough one.
Okay...it seems to me that when it comes to certain things being "instantly revocable," it's more important to have that standard apply to acts that can cause injury/potential injury than to acts that are merely intimate. If I'm unconscious, I can't tell you, "What you're doing hurts and will cause damage if you continue doing it."
I can absolutely grant standing consent to merely *intimate* acts happening between me and my partner when I'm asleep, and I do. Many nights, if I've gone to bed significantly earlier than my husband, he comes into bed later, spoons up against me and runs his hands over me, including all my "naughty bits." No problem. In fact, I find it quite nice on the occasions I wake up for it and have no discomfort whatsoever about the fact that it sometimes happens without my awareness. And if he wanted to do something more sexual like, I don't know, masturbate on me or do it "college style," that's a-ok by me, too. All of these acts are definitely things that require enthusiastic consent from me as a participant, and that consent is standing and implied at all times in our relationship (though not, necessarily, in yours).
Penetration, on the other hand...I might be a bit iffy about, simply because my internal bits are less resilient. If I'm asleep, I can't tell him that hey, I need more lube or maybe don't thrust so hard right now or this is taking too long, gonna have to finish a different way or I'm gonna chafe. I could wake up rather sore or even injured.
So...I dunno. Surgery has been mentioned a lot on this thread, but the thing about surgery is that surgeons are *skilled.* They're trained to perform dangerous procedures and not cause damage (beyond the obvious necessary cutting and stuff). If they screw up, they can get in trouble. Can we apply similar standards of responsibility to sex acts performed on an unconscious person? Can I say, "I consent to sex, but not to injury," and hold the other person responsible if they don't take the care needed to avoid hurting me (or hurting me more than I wanted them to)? Seems like that could be a reasonable standard, or at least a good way to direct the debate.
More...
Okay...it seems to me that when it comes to certain things being "instantly revocable," it's more important to have that standard apply to acts that can cause injury/potential injury than to acts that are merely intimate. If I'm unconscious, I can't tell you, "What you're doing hurts and will cause damage if you continue doing it."
I can absolutely grant standing consent to merely *intimate* acts happening between me and my partner when I'm asleep, and I do. Many nights, if I've gone to bed significantly earlier than my husband, he comes into bed later, spoons up against me and runs his hands over me, including all my "naughty bits." No problem. In fact, I find it quite nice on the occasions I wake up for it and have no discomfort whatsoever about the fact that it sometimes happens without my awareness. And if he wanted to do something more sexual like, I don't know, masturbate on me or do it "college style," that's a-ok by me, too. All of these acts are definitely things that require enthusiastic consent from me as a participant, and that consent is standing and implied at all times in our relationship (though not, necessarily, in yours).
Penetration, on the other hand...I might be a bit iffy about, simply because my internal bits are less resilient. If I'm asleep, I can't tell him that hey, I need more lube or maybe don't thrust so hard right now or this is taking too long, gonna have to finish a different way or I'm gonna chafe. I could wake up rather sore or even injured.
So...I dunno. Surgery has been mentioned a lot on this thread, but the thing about surgery is that surgeons are *skilled.* They're trained to perform dangerous procedures and not cause damage (beyond the obvious necessary cutting and stuff). If they screw up, they can get in trouble. Can we apply similar standards of responsibility to sex acts performed on an unconscious person? Can I say, "I consent to sex, but not to injury," and hold the other person responsible if they don't take the care needed to avoid hurting me (or hurting me more than I wanted them to)? Seems like that could be a reasonable standard, or at least a good way to direct the debate.
35
@31 - "Consent" in an abusive relationship is a joke. That could be what's going on, here, in which case the system could be doing its job rightly. However, if that's the case, it's not a matter of prior consent applied to unconsciousness, it's a matter of whether or not consent was really consent.
36
@35: My understanding is that they're not still a couple, and she still didn't want to pursue the case. See: http://www.ottawacitizen.com/news/assaul…
If they're not in a relationship anymore, I don't think abuse is the issue.
If they're not in a relationship anymore, I don't think abuse is the issue.
Advertisement
Most Commented on Slog
-
Hating People Doesn't Make Them Thinner by Jen Graves
-
Los Angeles Gay Bar Bans Bachelorette Parties Until Marriage Equality Is Attained by David Schmader
-
Fill in the Blank by Grant Brissey
-
This Reminds Me of the Great Calculator Scare of the Late '70s/Early '80s by David Schmader
-
Idiot Tries to Defend Bigoted Anti-Gay-Marriage Preacher on Anderson Cooper by Paul Constant
-
Six Moms with Too Much Time on Their Hands and a Shitty Website Decide to Fight Gay Superheroes by Paul Constant
-
The Saturday Morning News by Unpaid Intern
-
Why Mayor McGinn's Wife Canceled Her Family's Seattle Times Subscription by Eli Sanders
-
What the Hell Is Wrong With Seattle's Pride Parade? by Dominic Holden
-
NYC Man Ticketed for Not Riding in the Bike Lane by Jonathan Golob
RSS
Facebook
Twitter
Comments (37) RSS