Are you a Criminal?

This may seem like an odd question to ask. However, the Supreme Court recently released a decision in a sexual assault case that stated an individual cannot consent to sexual touching while they are unconscious. The facts of the case were that two adults were engaged in erotic asphyxiation when the female passed out. Sexual activity continued, activity that she had consented to in advance. However, the accused was still convicted of sexual assault because the Court said that an unconscious person cannot consent to sexual touching.

This may seem like an odd question to ask. However, the Supreme Court recently released a decision in a sexual assault case that stated an individual cannot consent to sexual touching while they are unconscious. The facts of the case were that two adults were engaged in erotic asphyxiation when the female passed out. Sexual activity continued, activity that she had consented to in advance. However, the accused was still convicted of sexual assault because the Court said that an unconscious person cannot consent to sexual touching.

Seems reasonable, does it not, to think that a person cannot consent while unconscious? However, they cannot even consent in advance, because a person has to be able to withdraw their consent in order for consent to be valid. Why is this a problem? Let me explain.

The most obvious situation is when dealing with two people in a relationship. To be even more specific, let us take a husband and wife combination that have been married for twenty years. He kisses her on the lips while she is sleeping…that is a sexual assault. He climbs into bed with her and puts his arm around her, clasping her breast…that is a sexual assault. She climbs into bed and performs fellatio on her husband (almost every mans fantasy!), waking him up…that is a sexual assault. The Supreme Court has made millions of people criminals by stating that, no matter the extent of the prior consent, an unconscious person cannot consent to sexual contact.

For the vast majority of situations this will be of little concern. Most couples would not report the other to the police. However, situations can arise where prior sexual contact can become an after the fact problem. In the case involving the Supreme Court, a subsequent breakdown in the relationship and an ongoing custody battle led to the information being revealed that there had been sex while the female was unconscious. The man was convicted even though the woman was clear that she had consented to the contact!

The point…protect yourself. People need to know and understand this. Relationships breakdown, or contact may be admitted to because neither partner sees a problem. However, regardless of the personal views of the participants, the act is still illegal and can be prosecuted. Don’t let the law make you a victim!

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