Woman can’t consent to sex while unconscious, Supreme Court rules

OTTAWA—The Supreme Court has ruled that an unconscious woman can't give consent to sex.

In a 6-3 decision Friday, the court restored the sexual-assault conviction of a man who performed an unwanted sex act on his female partner in 2007.

The case involves a woman — who can only be identified as K.D. because of a publication ban — who was choked unconscious by her common-law spouse. When she awoke, she found herself bound and being penetrated with a sex toy.

The woman told police that she consented to the asphyxiation, but not the subsequent sexual activity. She later recanted. Her evidence at trial was described by the judge as a “typical cross-examination of a recanting complainant in a domestic matter.”

The man was originally convicted at trial of sexual assault but that was overturned by the Ontario Court of Appeal in a 2-1 split decision.

Chief Justice Beverley McLachlin, writing for the majority, said a person must be conscious during sexual activity to give consent.

“Our task on this appeal is to determine whether the Criminal Code defines consent as requiring a conscious, operating mind throughout the sexual activity,” she wrote.

“I conclude that the code makes it clear that an individual must be conscious throughout the sexual activity in order to provide the requisite consent.

“Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. I would therefore allow the appeal and restore the conviction of the respondent.”

Justice Morris Fish, writing for the dissenters, noted the woman consented to the sexual activity leading up to her unconsciousness and the unconsciousness itself.

“It is undisputed that K.D.'s consent was freely and voluntarily given — in advance and while the conduct was still in progress. Immediately afterward, K.D. had intercourse with J.A., again consensually.”

The woman first complained to police two months after the incident when J.A. threatened to seek sole custody of their two-year-old child.

Fish said the provisions of the Criminal Code that deal with consent to sexual acts are designed to protect women against abuse by others.

“Their mission is not to 'protect' women against themselves by limiting their freedom to determine autonomously when and with whom they will engage in sexual relations of their choice,” Fish wrote.

“Put differently, they aim to safeguard and enhance the sexual autonomy of women and not make choices for them.”

The court did not address the issue whether asphyxiating someone to the point of unconsciousness constitutes causing bodily harm.

The law does not allow someone to consent to bodily harm.

Elizabeth Sheehy, a University of Ottawa law professor, said the ruling upholds 20 years of gains made in criminal law to protect women from sexual assault.

“The big message of this decision is that unconscious women are not sexually available,” said Sheehy, who represented the Women's Legal Education and Action Fund, which was granted intervener status in the case.

“Any other sort of ruling would have had implications for women who are vulnerable to sexual exploitation because they're asleep, because they're medicated, because they experience episodic disabilities, or because they're drunk.”

The man's lawyers argued that the couple had clear parameters established ahead of time regarding their intimate relations and rules about how the woman would indicate her partner should stop.

“Surely, she must have contemplated that while she was unconscious she would not be able to revoke her consent,” lawyer Howard Krongold argued last fall when the Supreme Court heard the case.

The man, J.A., was sentenced to 18 months in jail, and has served his time. As a result, it is unlikely he will face further time behind bars.