The Vancouver Sun by Danielle Fostey and Heather Cassells 13 June 2011

Could you imagine how horrifying it would be to be sexually assaulted by your partner or date? Imagine going to the police to report the assault and being told, “We can’t do anything. That happened in an intimate relationship.” Suddenly, the nightmare is even worse.

If Sun Columnist Ian Mulgrew wrote our Criminal Code we may not have to imagine this. In his article on June 6th (Behaviour of Men and Women…) Mr. Mulgrew criticized the Supreme Court’s ruling in R. v. J.A. for upholding a sexual assault charge against a man who performed sexual acts on his unconscious partner. He asserted that because the sexual act had taken place in an intimate relationship and both partners had consented to the sexual activity prior to the assault, that the court criminalized “benign” activity.

And, while Mr. Mulgrew was correct when he noted that the case involved a couple in an intimate relationship, he was wrong to suggest that that fact made the assault any less criminal than a random occurrence. Mr. Mulgrew describes “taking unscrupulous advantage of” an unconscious person and sexual activity “in an intimate relationship” in opposition to one another, as though the two circumstances never coincide. In reality, we know that sexual assaults can and do occur within intimate relationships. Statistics Canada reports that 24 percent of women who accessed shelters in 2007/2008 did so because of sexual abuse in their relationships. And, while this statistic is scary enough, it is also a reality that many women do not report sexual assaults and face numerous challenges when they do choose to come forward and share their experiences. Mr. Mulgrew’s comment that sexual assault allegations often take place in the “midst of nasty break-ups,” as though they are a tactic of revenge, trivializes the circumstances under which sexual assaults are reported.

Furthermore, the existence of consent in previous sexual encounters does not act as consent for all future sexual activity. In this case, it is completely irrelevant that the parties had previously engaged in sexual acts. What is relevant is that at that moment one of the involved parties was unable to consent to the sexual touching that was taking place.

Mr. Mulgrew opined that the Supreme Court “muddied the waters” around the law of consent in sexual assault. It did not. The decision reaffirmed the well-established principle that obtaining consent is an ongoing obligation. Ongoing consent requires that the individual must be conscious throughout the sexual activity and able to revoke their consent at any time. Mr. Mulgrew failed to address the fact that there was no consent in this sexual encounter. Only one party was aware of what was taking place, while the other was unconscious and open to exploitation by her partner.

The basic elements of consent are enumerated in the Criminal Code and have been well-articulated in case law. The Criminal Code stipulates that there is no consent when an individual is incapable of consenting; for instance, where he or she is unconscious. The law requires voluntary consent be given specifically for each and every sexual act. The Supreme Court ruled that it is impossible for an unconscious person to satisfy the requirements of consent, even if she expresses her consent in advance.

In Canadian law the onus is on the person who wants to touch to obtain consent. Consent can be revoked at any time. If a person participates in a sexual activity where their partner is unable to express a revocation of consent, for example because they are unconscious, then that person accepts the risk that their partner may later claim that he or she was assaulted without consent. The Supreme Court was not criminalizing sexual activity in an intimate relationship as Mr. Mulgrew would have us believe.

The Supreme Court was protecting a person’s right to withdraw consent – in and outside of intimate relationships.

Danielle Fostey and Heather Cassells are Legal Interns at West Coast Women’s Legal Education & Action Fund (West Coast LEAF).