Court Institute Open Reading
Am I a victim of sexual assault if my wife wakes up before I do, kisses me while I’m still asleep and then heads off to work? On one reading of the Supreme Court of Canada’s decision in R. v. J.A., I might be.
J.A. and K.D. had been in a relationship for some time. One evening, as they had before, they engaged in consensual erotic asphyxiation: K.D. allowed J.A. to put his hands around her throat and choke her to unconsciousness. The criminal charge of sexual assault against J.A. came from K.D.’s later complaint to the police that when she regained consciousness, J.A. was doing something to her that she had not consented to.
That is, after all, the essence of the charge of sexual assault: sexual contact without consent. Although that should be simple enough for most people to understand, there are unfortunately too many men who believe that “No” is just some women’s way of saying “Yes”. So it’s been necessary to clarify the rules on what actually constitutes consent, as the court did in R. v. Ewanchuk. One of the rules that Ewanchuk established was that it’s not enough that she doesn’t say “no”; she has to actually consent. Without consent, sexual contact is sexual assault.
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