Quick Facts:
A long term couple with a child have on multiple occasions engaged in sex where the woman is choked to the point of unconsciousness and had sexual acts performed before and after the loss of consciousness. A few weeks after one of these sessions, the couple had a fight and the woman filed charges against the man in a bid for custody of their son, claiming sexual assault. She later withdrew her complaint. The Crown nevertheless decided to prosecuted and obtained a conviction.
The Issue:
The battle now is between those fearful that a change in the idea that consent is withdrawn when the consenter loses the ability to consent, [i.e. the reading of 273.1(2)(b) that no consent is obtained when the complainant is unable to give consent to mean unconscious people withdraw consent,] would give rapists an excuse in claiming they though they obtained consent prior to slipping that roofie in the drink; and those supporters of sexual freedoms who argue the current rules are an infringement on the sexual rights of consenting adults.
In this particular situation, with explicit consent to each act performed and the history of such interactions, it would seem unfair to punish the man, especially given the ulterior motives of the complainant at the time. However, in the opinion of this writer, the general benefit to society of setting a clear, and simple rule that protects victims of sexual crimes, and offers a strong deterrence against would be offenders, outweighs the interests of the very few unlucky chumps who will undeservedly get caught (and who would have to go through the ordeal of seeking exceptional redress).
Changing the rules, and creating a refined, holistic test that looks into a plethora of factors would create uncertainty in clear cut cases and waste precious judicial resources when cases where such care is needed are rare and far between.
I know KP disagrees with me, and hopefully will pen a opposing opinion. Thoughts?
A long term couple with a child have on multiple occasions engaged in sex where the woman is choked to the point of unconsciousness and had sexual acts performed before and after the loss of consciousness. A few weeks after one of these sessions, the couple had a fight and the woman filed charges against the man in a bid for custody of their son, claiming sexual assault. She later withdrew her complaint. The Crown nevertheless decided to prosecuted and obtained a conviction.
On appeal, the ONCA overturned the conviction in a 2-1 decision.
The battle now is between those fearful that a change in the idea that consent is withdrawn when the consenter loses the ability to consent, [i.e. the reading of 273.1(2)(b) that no consent is obtained when the complainant is unable to give consent to mean unconscious people withdraw consent,] would give rapists an excuse in claiming they though they obtained consent prior to slipping that roofie in the drink; and those supporters of sexual freedoms who argue the current rules are an infringement on the sexual rights of consenting adults.
In this particular situation, with explicit consent to each act performed and the history of such interactions, it would seem unfair to punish the man, especially given the ulterior motives of the complainant at the time. However, in the opinion of this writer, the general benefit to society of setting a clear, and simple rule that protects victims of sexual crimes, and offers a strong deterrence against would be offenders, outweighs the interests of the very few unlucky chumps who will undeservedly get caught (and who would have to go through the ordeal of seeking exceptional redress).
Changing the rules, and creating a refined, holistic test that looks into a plethora of factors would create uncertainty in clear cut cases and waste precious judicial resources when cases where such care is needed are rare and far between.
I know KP disagrees with me, and hopefully will pen a opposing opinion. Thoughts?
