Last week, in a victory for women, the Supreme Court of Canada ruled 6-3 that there can be no sexual consent in law when a woman is unconscious.
Simple, right? Not so fast. The 3 dissenters (all men) 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.’” Huh?
“But can unconscious women enjoy sexual pleasure or exercise autonomy?” law professor Elizabeth Sheehy wrote in the Vancouver Sun. “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 Court’s decision makes no exceptions for husbands and wives, or cohabiting couples: You can literally get arrested for sexually touching your sleeping partner.
But honestly, how many people are going to report their partner if everything is okay between them. The law is meant to protect women in violent relationships, where “consent” may mean coerced under pressure or threat of abuse to consent.
Granted, the case in question was complicated: a woman supposedly “agreed” to being strangled unconscious, bound and penetrated with a dildo. The Court was not allowed to consider the context, which was that the offender was an abuser with a criminal record of weapons and violent offenses, including two previous convictions for assaulting the complainant.
I’m sure we can all think of many possible, complicated scenarios and loopholes (what if a woman is drunk, says yes to sex, and then passes out in the middle of it?)
But this is an important start. The bottom line is: The Court reinforced the idea that consent should be “conscious, continuing, contemporaneous with the sexual activity and revocable at any point.”
Perhaps there are some women who get off on strangulation—the “unconscious sexual adventure” the dissenting justices were most likely referring to. But, as professor Sheehy states, “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.”
To further the message, Canada has an edgy new ad campaign, with a woman passed out on a couch, liquor bottles surrounding her, and the message: “Just Because She Isn’t Saying No, Doesn’t Mean She’s Saying Yes.”
Amen to that.