Consent To Bodily Harm: A Paradox?

The Toronto Star had an interesting story yesterday about a court case. I've tried and tried to find it on their website but I can't so it's lucky I saved the dead-tree-format version I was reading over my dinner.

The headline is, "People Can't Invite Violent Sex Acts, Judge Rules." The case involves a couple who routinely engaged in what's described as "raunchy" sex, over a period of years. Some of that was sado-masochistic. They had a safe word.

The guy is accused of sexual assault for having choked her to the point of unconsciousness and then, well, maybe you're reading this over lunch or something, so let's just say, he's accused of having followed this up with further sexual acts while she was "out."

The accuser called the cops one month after it happened, and then later tried to recant, explaining that since it was a consensual interaction, there was nothing he did wrong. The accuser says she "routinely" consented to being choked.

OK, let's pass quickly over the whole report-it-one-month-later-then-deny-there-was-anything business. About that we can just say, something is f***ed up between these two people.

What's more interesting to me are the comments of the prosecutor and judge. The article says that the prosecutor (or as we call it here in Canada, the "Crown counsel"), argued "successfully" that "an individual cannot consent to bodily harm, such as being choked to the point of unconsciousness." The prosecutor called it "paradoxical" that one who was unconscious could be "in a position to enjoy heightened or intensified sexual gratification."

Later it says quotes the judge saying, "Even if she had consented previously - or on that night - she cannot legally consent to sexual activity that takes place when she is unconscious."

This makes it sound like according to the judge, the accuser could have consented to being choked. And maybe she could have consented to being choked to the point of unconsciousness. But she couldn't consent to anything that happened when she was unconscious.

So, does this mean that to engage in any sex act legally, each party must be in a position to give consent at the moment of sex? Then if two longtime partners want to get really drunk and have sex, or if a guy has sex with his wife in the middle of the night and she falls asleep in the middle, or if one person wants to get really stoned and have their partner have sex with them, all those things would be sexual assault.

It also makes it sound like according to the judge, there's nothing paradoxical going on, and it's not a question of bodily harm. It's just a question of the possibility of consent, and when and how it's required.

On the other hand, the judge also said, "the reasonable man would conclude that choking someone to the point of unconsciousness does interfere with that person's 'health or comfort,' and can, in some cases, endanger life."

I don't know what the law is, but if there's a law against making other people uncomfortable, we're all in big trouble.