That makes twice that I know of. The first time was a long time ago, when I thought gender equality had actually made progress in both directions. But the Supreme Court decided that, though it was unethical for male guards to attend female prisoners in jail, that there was no such prohibition in the other direction. Apparently, women are not capable of sexually harrassing men, the women being so meek and demure and all, and just not imposing enough to bother those big strong men. Huh.

Anyway, given that I'm not in prison, and hope not to be, ever, it was a theoretical debate for me. I disagreed with the court, but I moved on. Their latest decision, though, troubles me personally. Now, don't get me wrong, I don't plan to routinely have sex with unconscious people, but still...

The court has decided that an unconscious person cannot give sexual consent.

Now, at first blush (if you blush at this sort of thing), this seems perfectly reasonable. After all, if you're out cold, you can't say "Yes". (Or "No", for that matter.) However, the argument for the defence in this case, was that the woman had give consent BEFORE she was choked into unconsciousness. Let us set aside the fact that the guy may have been lying through his teeth - I have no way of knowing or proving that. I'll be the court didn't have any way of knowing or proving it either. But let's say - just on principle - that he was honest.

Why can't you give preemptive consent? The argument I heard was that, being unconscious, you can't say "That's not what I meant!" or "Hey, that hurts more than I thought it would!" or even "Changed my mind - get that thing out of my bodily orifices!!!" This is true - you can't change your mind. As a project manager, that's why I say that you should have a scope document, signed by all stakeholders, before the sex begins. Ok, that's a little too geeky, even for me.

It should be noted that there were dissenting opinions. I gather from media reports that one of the objections was the "kiss the sleeping wife" argument. Since she's not awake to consent to the kiss, it would be sexual assualt. While technically true, I think that is inane. If spouses bring charges against each other for kissing their sleeping other half goodbye, there are larger marital issues that they need to work through. Besides, being illegal, it might make the kiss that much more alluring. My dissenting opinion is much more wide-sweeping than a little peck on the cheek.

What I would say is this:
If there is a reasonable expectation of behaviour, preemptive consent can be given regarding those expectations.

Here's my argument:
When I go to the doctor, I give consent for expected medical situations. I am going to be pretty pissed off if, as soon as I loss consciousness, the doctor decides he has to stop. I am also going to be pretty pissed off if, as sometimes happens, something goes wrong, and the doctor just gives up and stops because we didn't cover that in our preemptive consent discussion. The doctor bloody-well better do everything he can for me, even if (or especially if) I'm not conscious to give him moral support (and legal approval) that he needs. That said, if the doctor decides that, since I'm under for an apendectomy anyway, he may as well cut off both legs below the knee, because I drink to much Coke and may, in some future decade, develop diabetes. I believe that a reasonable person would find that inappropriate. And malpractice.

I say the same thing about sex. If I give my partner permission to do things to my body while I'm unconscious, I think that's legitimate. Rather odd, perhaps unsavory, somewhat fetishist, and not at all my style. But not illegal.