Sexual defence threatens women

On Monday, the Supreme Court of Canada will hear the JA case. JA was convicted of sexual assault for tying his 22-year-old partner's hands behind her back and inserting a dildo in her anus while she was unconscious. She testified at trial she had agreed to erotic asphyxiation (strangulation) at her partner's hands because she thought it would enhance sexual arousal. Instead, she became unconscious. In giving this evidence, she recanted statements she made when she first went to the police, including her statement that she had not agreed to erotic asphyxiation. The trial judge described her as a "classic recanting victim."

The Ontario Court of Appeal overturned JA's conviction, stating the complainant had consented in advance to sexual activity that occurred while she was unconscious and therefore no sexual assault occurred. JA's lawyer is now arguing the law should just leave couples alone if they want to engage in "spicy sex." He also asserts men who sexually touch a sleeping partner could be prosecuted if JA's conviction is reinstated.

Erotic asphyxiation is extremely dangerous. There is no safe way to engage in it. Any time the brain's blood supply is cut off, there is a danger of brain damage and even death. At least 1,000 Americans accidentally kill themselves each year while attempting it. Even advocates for radical personal autonomy regarding sexual practices agree all sexual activity must cease when a partner loses consciousness. Common sense dictates consent to engage in sexual activity is never present when an unconscious partner is in a potentially life-threatening situation.

The sleeping-partner problem the defendant's lawyer raised is a red herring. In almost 25 years of research, I have never seen a sexual-assault prosecution of a man who wakes a sleeping spouse with a sexual touch unless the parties were already estranged and no longer sharing a bed.

On the other hand, there are recent cases where men have been acquitted of sexual assault for sexually touching women with whom they have no sexual history while the women are sleeping, intoxicated, drugged or incapacitated. Acquittals were granted because the defendants perceived a signal of possible sexual interest (such as flirtatious comment) at some earlier time. Sexual assault is often a crime of opportunity so perhaps it is not surprising these cases most often involve complainants who are aboriginal, young or physically disabled. A doctrine of advance consent will make these women even more vulnerable to sexual violence.

The Supreme Court should soundly reject the Appeal Court's determination that advanced consent should become part of Canadian law.

At JA's sentencing hearing -- but not before -- the trial judge learned he was a lifelong criminal and described him as a "deviant and dangerous man." JA had been convicted on 13 previous occasions of multiple charges for violent offences. Three of the previous sets of convictions involved wife abuse; two of those involved this complainant. He was sentenced to 18 months imprisonment, two years probation and prohibited from contacting the complainant.

Our criminal evidence laws prevent a trial judge in most cases from having information about a defendant's prior convictions when making the determination of guilt. Thus, judges make decisions about a complainant's credibility without having a full understanding of her actions, including why she made the complaints and what led her to her recantation.

Strangulation in wife abuse cases is common, difficult to detect and a known precursor to the use of lethal violence. In one study, 68 per cent of all battered women who sought emergency medical attention had been strangled by their male partners. Another study of the emergency records of 1,000 women who had been strangled by their partners found there were no visible or photographable markings to the neck on 85 per cent of the women. Non-fatal strangulation is a known risk factor for lethal violence. Therefore if someone survived strangulation by a partner, steps to prevent violence from escalating must be taken.

In light of these very real dangers, perhaps it is time to reconsider the evidence rules, especially when a recanting complainant has experienced serious repeated violence at the hands of the same defendant. It will be interesting to see if the Supreme Court will contextualize the complainant's evidence in light of JA's previous convictions.

But should the Appeal Court's decision and JA's arguments find purchase with the Supreme Court, we can expect to see more prosecutions in cases involving strangulation thwarted by claims that "we were just having fun."

Karen Busby is a law professor at the University of Manitoba. She provided assistance to the Women's Legal Education and Action Fund (LEAF) in preparation of its brief to the Supreme Court of Canada in the JA case, but the views expressed in this article are hers alone and should not be attributed to LEAF.

Republished from the Winnipeg Free Press print edition November 6, 2010 A17