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CALGARY, Alberta (Reuters) - Having sex with someone who is unconscious constitutes sexual assault, even when the victim consents during relations to being choked to the point of blacking out, the Supreme Court of Canada ruled on Friday.
In a six to three decision, the top court overturned an Ontario appeal court ruling and reinstated a sexual assault conviction on a man who had sex with his partner during an mutually agreed-upon erotic asphyxiation session.
"The definition of consent for sexual assault requires the complainant to provide active actual consent throughout every phase of sexual activity," Chief Justice Beverley McLachlin, writing for the majority, said. "It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance."
The case involves an Ottawa couple, referred to as J.A. and K.D. During sex one evening in 2007, J.A. placed his hands around K.D.'s throat and choked her until she was unconscious, according to testimony.
K.D. testified she consented to being asphyxiated and that the couple had experimented with the activity before. She said she was out cold for less than three minutes.
Upon coming to, she realized her hands were tied behind her back and that J.A. was inserting a dildo into her anus.
He removed the implement 10 seconds after she regained consciousness and the couple had vaginal intercourse. J.A. cut her hands loose when they were done, according to the testimony.
K.D. filed a complaint with police two months later, saying she had consented to being asphyxiated but not to the sexual activity. She later recanted the story, saying she made the allegation because J.A. threatened to seek sole custody of their young son.
After a trial, J.A. was found guilty of sexual assault. The Ontario Court of Appeal later set aside the conviction and dismissed the charges.
The Women's Legal Education and Action Fund, which intervened in the case, hailed the Supreme Court decision for affirming legal protection for women who are vulnerable to sexual assault by predatory men.
The case is R. v. J.A., 2011 SCC 28.
Reporting by Jeffrey Jones; editing by Frank McGurty