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Consent and the Supreme Court of Canada

Unfortunately, no actual sex (kinky or otherwise) will be happening among the supremes - or none that we know of - but it seems that the Supreme Court of Canada may have to decide whether an unconscious person can give consent. Yikes!

An Ottawa man was charged and convicted of sexual assault for penetrating his partner with a dildo while she was unconscious. Apparently, the couple was hot-and-heavy into asphyxiation and according to The Globe and Mail, their relationship soured and a few weeks later, the 'top' partner was charged. As it stands now, the conviction has been overturned by the Ontario Court of Appeals and almost inevitably, that decision will be appealed, and this will probably wind up in front of the Supreme Court of Canada.

This case is seriously problematic, and I'm probably being far too optimistic in hoping that this decision leads to some legal clarity for folks who participate in BDSM. I'll leave the asphyxiation warnings (auto-erotic and otherwise) to Dan Savage (he feels more strongly about this than I do), but in a country where the government does not meddle in our bedrooms, people who play with power and sex don't have any protection against accusations of sexual assault. Similarly, folks engaging in BDSM play who are violated or assaulted, will have a difficult (if not impossible) time explaining to authorities how consent works in their relationships.

I know the Canadian media and courts are framing this as an issue of whether a person can consent to acts performed while they are unconscious, but I'm not sure that consciousness is even relevant here. The Globe article used some nice touchy-feely analogies - eg. snuggling your lover while they're asleep - but I think that establishing consent while someone is bound-and-gagged is equally problematic and is almost equivalent here. Of course, millions of Canadians work out these issues every day on their own without the help of the government, but the question remains - what happens when things do go wrong and the cops are called?

I guess we'll find out soon enough...

 

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