Can sexual consent be given in advance?

A case currently before the Supreme Court of Canada (SCC) holds the potential to change existing laws around sexual consent. 

The SCC has been tasked to determine if an individual can provide advance consent to sexual activity they are subjected to while unconscious. The alternative argument is that consent is no longer valid when an individual loses conscious control of their body.

This question arises from a case where a woman agreed to asphyxiation for sexual purposes. She claims that after a short period of unconsciousness, she awoke to unwanted sexual activity. Her partner, who now faces trial for sexual assault, alleges the woman consented to such conduct prior to being asphyxiated. 

When the Ontario Court of Appeal heard this case in 2009, they established that advanced consent is possible when a person consents to an activity that is expected to occur once blacked out. This position is now being challenged at the Supreme Court level. 

What are the arguments for advanced consent? 

In the respondent’s factum, lawyers for the accused argue that a primary element of consent, as seen in the Criminal Code of Canada, is “voluntary agreement”.  A common understanding of agreement, they suggest, is that it is typically given in advance of what is anticipated to occur. It is therefore reasonable that such agreement can take place prior to unconsciousness, rendering valid consent.   

Moreover, defense appeals to the concept of autonomy. The Canadian Constitution, they state, guarantees an individual’s autonomy when making fundamental life choices. It is argued, then, that advanced consent furthers this freedom – we are entitled to make decisions regarding the treatment of our own body, and this includes sexual practices. 

Indeed, in preserving the principle of sexual autonomy for adults, the courts have long been reluctant to intervene in matters that involve consensual sexual activity. Striking down the concept of advanced consent would likely trigger concerns of imposed restrictions on sexual freedom. This may be seen by many as potential precedent for a slippery slope of court intervention in private matters.

What are the arguments against advanced consent?

The Women’s Legal Education and Action Fund (LEAF) recently appeared before the SCC in the current case to speak in opposition of advanced consent. They raised a number of concerns in their intervener’s factum.

LEAF argues that beyond agreement, consent is a continuous state of mind, which terminates at the point of incapacity. The ability to revoke, they contend, is a key component of consent. When unconscious, an individual loses their ability to revoke. 

LEAF also claims that sexual liberty is not a legitimate concern of the issue at hand. An unconscious individual, they explain, is unable to exercise any autonomy or receive sexual pleasure. Thus, advanced consent acts in opposition to liberty and autonomy.  

More broadly, it is suggested that a doctrine of advanced consent would open the door for strangling to be used as a defense in sexual assault cases. In addition, allowing consent to be obtained at an earlier time could lead to an idea of ‘assumed’ consent between intimate partners, simply due to the nature of their relationship. LEAF holds that this contravenes the concept that consent must be express and ongoing. 

Clarity on the notion of concept of advanced consent will be provided when the SCC makes its final decision in the coming months. 

 

Kaley  

1st Year Law Student

University of Victoria 

 

 

 

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