Tied Hands? A Doctrinal and Policy Argument for the Validity of Advance Consent

Abstract

In R. v. A. (J.), a majority of the Supreme Court of Canada rejected the legal validity of advance consent: consent to sexual acts anticipated to occur during unconsciousness. This article, to the contrary, argues that the legal validity of advance consent should be accepted. First, this article argues that the Criminal Code and jurisprudence are consistent with the legal validity of advance consent. Second, this article argues that, in the circumstance of a sleeping partner, advance consent should be accepted based on policy considerations in relation to sexual autonomy and the administration of justice.

Keywords: Sexual assault, consent, advance consent, Supreme Court of Canada