J.A: Consent to Sexual Activity Cannot Be Irrevocable

(2011) 84 Criminal Reports (6th) 35-37

Posted: 14 Feb 2013

See all articles by Janine Benedet

Janine Benedet

University of British Columbia - Faculty of Law

Date Written: 2011

Abstract

The conclusion of the majority of the Supreme Court of Canada in R. v. J.A. that women should be conscious and awake when men touch them sexually is an important recognition of women's right not to be used as sexual objects and of the fact that unconscousness for any reason (intoxication, disability, sleep) makes women particularly vulnerable targets for sexual assault.

The author reviews the facts (including that the woman was strangled into unconsciousness) and the appeal history of the case. She comments on the dissenting judges' apparent confusion of advance consent with the now extinct doctrine of implied consent, and the obsolete marital rape exception.

The real concern in the J.A. case is that the person is unconscious when the application of force takes place, making the consent irrevocable. The issue is not that the expression of consent might precede the actual touching in a temporal sense.

Keywords: Canada, Criminal Law, Defences, Consent

Suggested Citation

Benedet, Janine, J.A: Consent to Sexual Activity Cannot Be Irrevocable (2011). (2011) 84 Criminal Reports (6th) 35-37, Available at SSRN: https://ssrn.com/abstract=2033991

Janine Benedet (Contact Author)

University of British Columbia - Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada
604 822 0637 (Phone)
604 822 8108 (Fax)

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