Insensate consent

The Supreme Court of Canada is set to consider whether a person can consent to sexual activity that will take place while they’re unconscious.

The deliberation has been prompted by a case brought before the court by a woman who awoke in a sexual scenario after being choked into unconsciousness by her partner.

The woman—whose identity has been withheld from the media—claimed the intercourse was non-consensual, but subsequently recanted her testimony. While her partner was convicted of sexual assault, a court of appeal ruled that the woman had consented and overturned the conviction.

There are compelling arguments for the case on both sides. Some have argued that the ability to consent to an activity must include the freedom to withdraw consent at any time, which is impossible in a state of unconsciousness. If advanced consent is codified into law, some are concerned it could become a legal defence in cases of sexual assault.

Others suggest that the ability to relinquish the right to consent is a crucial component of an individual’s right to determine what they do with their own body.

Creating a law prohibiting this kind of behaviour will inevitably raise far more questions than it will help resolve. One Supreme Court justice questioned whether or not an individual who kisses a sleeping partner could be charged with assault. It’s a silly example, but it illustrates the essential difficulty of negotiating this concern: defining what someone can consent to while unconcious.

The problem with criminalizing this activity is that it’s essentially impossible to regulate, and thus won’t simplify any existing problems facing cases of sexual violence. Two individuals who engage in this activity consensually and without adverse consequences will never have cause to enter the legal system in the first place.

If two consenting adults wish to participate in a sexual activity and do so without concerns of wrong-doing, no one has been injured.

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