Bioethics Blogs

Consent and Sexual Advance Directives

Consent and Sexual Advance Directives

Fritz Allhoff, Center for Law and the Biosciences

Consent, including the ability to withdraw it, is a major issue in biomedical research, as well as in health care.  A recent Canadian case and the following discussion raises another issue around consent that may have implications for law and the biosciences.

In R. v. J.A. (2011), the Canadian Supreme Court considered a case involving a sexual advance directive.  The pertinent details are summarized in a law review artice by Prof. Alexander Boni-Saenz (Chicago-Kent), and were featured in a provocative discussion over on Volokh.  Here’s an excerpt:

In May of 2007, a woman and her long-time male partner engaged in consensual kinky sex. Specifically, the woman consented to erotic asphyxiation, or the practice of choking during a sexual encounter as a way to restrict oxygen flow and enhance sexual arousal. She also consented to sexual penetration while unconscious.

The man then choked the woman, something which they had done before, and she passed out for approximately three minutes. During that time, the man tied the woman’s arms behind her back and inserted a dildo into her anus. When she regained consciousness, he removed the dildo, and they had consensual penile-vaginal intercourse as well. After they had both finished, she said her safe word—“Tweet  Bird”—and he cut her free of her bonds. Despite the woman’s consent, the state still prosecuted the man for sexual assault, claiming that she could not consent in advance as a matter of law. (Boni-Saenz at 2-3; internal citations omitted.)

The trial court convicted the man, holding that the woman “cannot legally consent to an activity that takes place while she is unconscious.”  The appellate court reversed, arguing that there was no general principle that established this proposition.  The Canadian Supreme Court reversed again, holding that “[t]he definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.