Consent to sex: What happened to moral blameworthiness ?

A few years ago I sought leave to appeal from the Supreme Court of Canada in a case which was popularly referred to as "The Clergy Man and the Park". In Webb v. Waterloo Police Services Board and P.C. Gillingham I sought to recover compensation for my client who was unwittingly entangled in a police sting operation carried out by Waterloo Region Police Service in their efforts to "rid a park of homosexual activity" by having P.C. George Gillingham entice men seeking sexual activity in Kitchener's Homer Watson Park to touch him and then charge them with sexual assault.

The evil which I attempted to have the Supreme Court of Canada acknowledge was that the offence of sexual assault was not amendable to a sting-type operation like the one carried out by Waterloo Region Police because the actus reus is dependent on the complainant's subjective state of mind - in the Webb case - a police officer who admittedly concealed his identity as a police officer to Mr. Webb because "he would not have committed the offence if he knew I was a cop." I argued that the potential harm capable of flowing from allowing state actors such a broad power of discretion warranted review and censure from the highest court in the land. An innocent citizen could potentially be charged with sexual assault only because the charging police officer claims a lack of consent notwithstanding the fact that all objective indicia point to consent.

Last week the Supreme Court of Canada increased the class of potential victims of false allegations of sexual assault from gay men at the hands of the police to include common law partners who engage in erotic asphyxiation. The Supreme Court of Canada overturned a husband's acquittal by the Court of Appeal for Ontario finding that the wife could not have consented to any sexual act while she was unconscious even thought the couple had engaged in this conduct before and the wife maintained that she consented to be asphyxiated. This conclusion was arrived at in the face of the following uncontested facts:

- H and W were involved in a long-term relationship and had a child
together;
- H and W had engaged in asphyxiation during sex before;
- W complained to police two months after the act;
- W recanted at some point and stated that she brought the
allegation of sexual assault after H threatened to take custody
of their son;
- W testified that she consented to the asphyxiation.

This appeal made its way to the Supreme Court of Canada because one of the justices of the Court of Appeal for Ontario, Mr. Justice Laforme, dissented finding that as a point of law the woman could not have consented because she was unconscious. It is clear that the majority in the Supreme Court of Canada jumped on an opportunity to both confirm and expand upon the court's ruling in Ewanckuk - the so called "no means no case". While one can see the logic in the broad proposition put forward by the majority in this case that proposition fails to do justice to the specific facts of the case. One could not argue in good conscience that a person who drugs another in order to have sexual relations with that person has obtained valid consent where that party is unconscious during the act. However, clearly that situation is not what was before the Supreme Court of Canada. The parties in this case were involved in a long-term common law relationship in which they had a child together and had previously engaged in the type of sex which was the subject of the allegation. Evidence in the trial court suggested that W sought to recant the sexual allegation by suggesting that she brought it forward as a result of a threat by H to take custody of their son. If anything - consent appears to have been withdrawn two months after it was given as a bargaining chip in the custody battle between the couple.

Commentary:

The results in Webb v. Waterloo Region Police Service and R v. J.A. provide compelling evidence of the danger associated with the legal regulation of a fundamental part of human interaction. In Webb the courts determined that a police officer playing a role to invite a man to touch him so as to "rid a park of homosexual activity" did not consent to the touching of his clothed crotch even though the same officer had committed the same act on another man hours prior and on all objective criteria the officer had clearly invited and consented to the sexual touching. In Webb the courts appear to have decided to close their eyes to the mountain of evidence which called into question the police officer's claim of a lack of consent. In R v. J.A. the approach and result are strikingly similar but with a new twist. Consent it is said can only be given by a conscious mind. This is so even thought the complainant consented to being asphyxiated. Clearly the complainant was well aware that she would lose consciousness and her partner would continue to engage in sexual activity with her during her period of unconsciousness. They had done it before.

One question which arises for this ruling is this. If voluntary intoxication can not be used as a defence to a general intent crime why then should voluntary aspxyiation negate consent to private acts between consenting adults ? Surely, the law is capable of making a distinction between the husband and wife who voluntarily engage in this form of sexual pleasure with a situation where the agreement to become unconscious is lacking. To be clear - that is not to say that there may never be circumstances in which even with an agreement to aspxyiation that one may not consent to a specific act in all of the circumstances. Consent has both a subjective and objective component to it. An over emphasis on the subjective component of the analysis combined with an interpretation of consciousness which has no regard for the agreement of the actors may not be in the public interest and liable to make criminals of those who lack the necessary blame-worthy state of mind generally required for a crime.

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the regulation of consensual sex between adults.