The Slippery Slope Of "Advance Consent"

A Canadian woman agreed to erotic asphyxiation with her common-law husband, but not to anal penetration. As Canada’s Supreme Court considers whether she gave “advance consent,” the implications go far beyond her own case.

The woman has been locked in a custody battle with the man, who also has a history of domestic violence convictions. The two had agreed to try erotic asphyxiation and had discussed anal sex, but the woman said she hadn’t consented to what she woke up to, which was anal penetration with a dildo.

The man was convicted of sexual assault, but then a higher court overturned his conviction, saying she had essentially consented to sexual activity before she blacked out. They framed it as an issue of not criminalizing adult activity, which is confused to say the least.

Now the case is before Canada’s highest court. As The Toronto Star summarized it,

The court is being asked to determine whether a person can provide “advance” consent to sexual activity that will take place while they are unconscious — or whether consent ends when a person no longer has active control over their own body.

Can we pick option B and call it a day? Is it really so hard to understand that consenting to one act — including one as risky as erotic asphyxiation — is not carte blanche to commit all others without enthusiastic participation? (This particular case is complicated by the woman’s testimony; accounts differ, but at one point she said it wasn’t consensual, and then retracted it.)

The director of the Women’s Legal Education and Action Fund said, “This case has the potential to significantly change sexual assault law, and in a way will be potentially dangerous for the real lives of women.” They worry that the precedent would put the burden on women to say they said no rather than the alleged perpetrators showing they said yes. The idea of advanced consent could also undo hard-fought victories to have marital rape recognized. I mean, couldn’t you then argue that saying “I do” is a form of perpetual consent? How about just showing up?

Update: To clarify, the court is currently deliberating on whether it’s possible to consent to sexual activity while unconscious. The facts of which acts the woman consented to are in dispute and contradictory. Read the decision here.

Court To Judge ‘Advance’ Consent [Montreal Gazette]
“Advance” Sexual Consent Up For Debate [Canadian Press]
Can An Unconscious Person Consent To Sex? [Toronto Star]