Canadian Supreme Court rules consent cannot be given when unconscious (duh!)

It’s a sad state of affairs when you need a Supreme Court to tell you an unconscious person can’t give consent!

No consent in unconscious sex case: Supreme Court

A woman cannot give advance consent to sexual activity while unconscious, the Supreme Court of Canada ruled Friday.

The decision restores the conviction of an Ottawa man who regularly practised consensual erotic asphyxiation with his longtime girlfriend.

The case goes back to a particular episode in 2007 when the woman, who cannot be named because of a publication ban, complained to police about what her partner did to her after she passed out. At trial, the man was found guilty of sexual assault but his conviction was overturned on appeal.

On Friday, in a 6-3 decision, the country’s top court restored the conviction. Writing for the majority, Chief Justice Beverley McLachlin said consent ends once someone is unconscious or asleep.

“If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent,” the ruling said.

Here’s a dissenting viewpoint:

“The approach advocated by the Chief Justice would also result in the criminalization of a broad range of conduct that Parliament cannot have intended to capture in its definition of the offense of sexual assault. Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately.”

Sounds like they’re protecting male entitlement. I hardly doubt any rational woman would run to court to press charges against her partner for kissing or caressing her. And if a person is not suppose to be kissing, caressing, or anything else- well, it should be a human right to seek protection from somebody doing something against our will.

Domestic violence resources

I was without power for three days last week on account of the snow storm, so I started cleaning out some papers. I found a few that I’d like to post, even though they might be a few years old.

WATCH  This group does court monitoring in Minnesota. I had a WATCH brief called WATCH Report II:  The Impact of Minnesota’s Felony Strangulation Law May, 2009. The link I provide has several of their briefs. In the brief I have, it’s startling to read that Minnesota was only the sixth state to make strangulation of a family member a felony-level crime. Prio to this law, strangulation was a misdemeanor that could be reduced to disorderly conduct. It says 23-68% of female victims of domestic violence have experienced at least one strangulation and that strangulation is an indicator of escalating violence and potential lethality.

Resource Center on Domestic Violence: Child Protection and Custody – This Web site has many resources, including a database that has domestic and family violence legislation.

This is a link to a study looking at Men’s Rights and domestic violence: Men’s Rights and Feminist Advocacy in Canadian Domestic Violence Policy Arenas 

Men’s Rights and Feminist Advocacy in Canadian Domestic Violence Policy Arenas Contexts, Dynamics, and Outcomes of Antifeminist Backlash

Ruth M. Mann
This article examines government and advocacy group texts on three recent Canadian domestic violence policy moments. Drawing on governance, feminist poststructuralist, and social movement perspectives, it examines men’s rights advocates’ and feminists’ discursive actions and their influence on officials. The research aim is to explore the provisional, intrinsically incomplete, and indeed questionable success, to date, of Canadian anti-domestic violence advocates’ strategies and tactics of resisting men’s advocates’ efforts to delegitimize gendered constructions of domestic violence. At the level of political action, the article contributes to efforts by feminists internationally to safeguard protections and supports for abused women and children in a political context marked by the increasingly prominent influence of men’s rights and associated antiprogressive backlash.

NOTE: This link also has Michael Kimmel’s substantive look at “gender symmetry”

This is a link to Bala’s study on false allegations, noting men make more than women (but you’d never know that from the myths and stereotypes) –

 Results: Consistent with other national studies of reported child maltreatment, CIS-98 data indicate that more than one-third of maltreatment investigations are unsubstantiated, but only 4% of all cases are considered to be intentionally fabricated. Within the subsample of cases wherein a custody or access dispute has occurred, the rate of intentionally false allegations is higher: 12%. Results of this analysis show that neglect is the most common form of intentionally fabricated maltreatment, while anonymous reporters and noncustodial parents (usually fathers) most frequently make intentionally false reports. Of the intentionally false allegations of maltreatment tracked by the CIS-98, custodial parents (usually mothers) and children were least likely to fabricate reports of abuse or neglect. Conclusions: While the CIS-98 documents that the rate of intentionally false allegations is relatively low, these results raise important clinical and legal issues, which require further consideration.

The light bulb goes off

There’s been a case going on in Canada where the parents have been battling custody decisions over 3 boys, one of which is 18 years old. The mother accuses the father of “alienating” the children. This is unusual in that men almost exclusively claim women “alienate” children. The claim is referred to as parental alienation syndrome and is not accepted by the American Psychological Association (APA) or the American Medical Association (AMA). In regard to the case, the judge ordered the 2 younger boys to be “deprogrammed.” The 18 year old sibling then fought for custody of his younger brothers – who had become suicidal.

Here’s one story about it here. You’ll find many more on the Internet.

Anyway, the biggest problem with PAS is that it masks child abuse – what’s the difference between a child that has been “alienated” and a child that has been abused? Nothing. Nada. Zilch. The so-called scientific theory is nothing more than a simplistic excuse for a child’s negative feelings towards a parent. In fact, it negates the child’s feelings and beliefs. It also presumes women lie about abuse when women make allegations. It becomes the woman’s claim of abuse vs. the man’s counter claim of PAS. Studies find men accused of abuse use this claim and…get custody.

So, here is an article on Men’s News Daily where the light bulb has finally gone off….well, maybe. The writer is referring to the 18-year-old in the following quotes:

First, he’s not a bit happy with the experts in the case.  He feels strongly that they had theories to peddle and they were going to do so regardless of the realities of the case.  They became advocates for PAS rather than impartial assessors of parental and adolescent behavior.

Protective parents have been saying this all along. Funny, they don’t listen to us when the case involves a mother who is the victim of the PAS witch hunt.

But the interesting wrinkle P.F. puts on the issue of PAS allegations is that once an expert gives evidence of PAS, the court tends to ignore what the child has to say, apparently believing alienation to be an established fact.

Bingo! PAS is unscientific. It needs no evidence but an accusation that Mom is “alienating” Junior. It totally disregards the consequences of divorce on children (depression & hostility), witnessing violence in parent’s relationships or….being abused by your parent. It totally disregards the right children have to their own thoughts, beliefs and values. It tells them their own thoughts are wrong and tries to “deprogram” them.

It is beyond me how courtrooms are able to use such junk science in their decisions. If it takes women making claims against men to get them to ponder how crazy it is to negate children’s feelings, well, then, so be it…but stop the witch hunt that punishes women (fines, jail & loss of custody for making “false” allegations) and puts children in harm’s way (over 58,000 children are place in danger each year, according to the Leadership Council on Child Abuse).