A recent case in Canada involving a couple that engaged in consensual kinky sex is testing the limits of the concept of prior consent. In the case, a man and woman had agreed to asphyxiation during sex, but when the woman was asphyxiated she says she came to and found a sex toy inserted in her anus, which she claims not to have consented to.
Initially, she did not contact police, but when a custody battle came up a couple months later she called the police and claimed she had been raped. Although she later recanted her testimony, the judge still sentenced the man to jail for having sex with an unconscious person.
However, an appeals court overturned the ruling, saying it was not sexual assault. Now, Canada’s Supreme Court is considering the case, and hearing arguments from attorneys concerning the meaning of consent.
According to Joanna Birenbaum, legal director of the Women’s Legal Education and Action Fund, the concept of advance consent is both “dangerous and regressive.” She says that consent is something that must be continuous and consciously made. So, for example, if a man and woman were having consensual sex, and the woman changed her mind and told him she wanted to stop, if he did not do so at that moment it would be rape. Consent, according to feminists, is only valid if it is revocable at any time for any reason
The Canadian Supreme Court has already ruled that there is no such thing as “implied consent,” so in all likelihood the feminist standard will prevail. The next step for feminists is to introduce the concept of retroactively revocable consent, which means that if consent were based on some misunderstanding or falsehood, it can be retroactively revoked and what at first was a consensual encounter becomes rape after the fact.
The feminist goal of classifying all heterosexual sex as rape is nearing fruition. Perhaps at some point in the future, the term “sex” will no longer be used to describe coitus, but rather it will all be known as “rape,” at which point all sex will be criminalized.
One interesting implication of the argument against advance consent may concern whether or not people are allowed to sign do not resuscitate orders. If, when unconscious, dying people cannot have previously consented to pulling the plug, will doing so be murder?
