No is no, yes is no

How can our conceptions of sexual consent be more nuanced?

Consent – a word every rez student is familiar with, thanks to the “Safe Space“ workshops our floor-fellows prodded and persuaded us into attending during that first orientation week at McGill.

We grudgingly stopped whatever we were doing for a mandatory two-hour long chat with strangers about topics that, while we acknowledged were important, weren’t on our list of “fun things to talk about this evening.” But, ever so obedient and respectful, fresh-faced, eager first years delved into the world of transgender issues, respect, and sexual consent. And consent, it turns out, is never implied. It must be stated verbatim (i.e. “yes”) for the sexual act to be considered consensual under Canadian law.

Such defined conditions are why the ongoing debate over pre-consenting to sex is drawing so much controversy in Canadian courts. According to a recent CBC news story, the case of an Ottawa woman consenting to sex prior to being voluntarily choked unconscious has escalated to the Supreme Court of Canada. While this may on the surface appear to be an isolated, abnormal incident, the true implication is the notion that you can say “yes” to sex in the future, and that sexual acts committed at a future date can be guaranteed consensual.

Of course, any eventual decision made in favour of sexual pre-consent would have to be accompanied by strict conditions, lest this be a window of opportunity for sexual assault. But consider the situation of elderly couples, where one spouse may be mentally incapacitated through any one of a myriad of age-related cognitive diseases. Could a long-time husband continue to have sex with his wife with Alzheimer’s, who may not even recognize him?

According to Isabel Grant, a law professor at the University of British Columbia, consent is “do you want to have sex this time with this person? And we can’t imply that from the fact that you’ve had sex with him before.”

Geriatric centres across the nation contend daily with the fine balance between emotionally healthy intimacy and sexual acts that might cause distress in a resident. Individuals with dementia, according to Mary Schulz, director of education for the Alzheimer Society of Canada, have a “need for intimacy, including sexual intimacy, [that] doesn’t change with age or the onset of dementia.” The challenge, thus, is in differentiating between desired and forced intimacy, which likely would need to be determined on a case-by-case basis by staff sensitive to minute, indicative changes of behaviour in residents.

If we can sexually pre-consent, can we also refuse in advance? Under the influence of certain mind-altering substances, many young adults become sexually promiscuous, and wake up regretfully the next day to the consequences of their drunken escapades. Should one be allowed to say no ahead of time, essentially deferring responsibility and imparting it on the other person, who’s then forced to ensure abstinence? The concept may seem preposterous, as we are interminably responsible for the decisions we make at every moment in time. But is there merit in the argument that if it possible for us to be unable to say no, once we’ve pre-consented, we should be unable to say yes as well?

In the upcoming months, the Supreme Court will be making its decision regarding the case of the Ottawa woman who pre-consented to sex, simultaneously setting a precedent for all other pre-consent cases that follow suit. Despite what the official laws assert individuals will always hold personal beliefs regarding such sensitive matters. For a certain Ontario man in his seventies, who asked his name not to be used, sex with his wife with late stage Alzheimer’s was never an option.

“I thought if I was to do that, it would be like raping somebody. And I could not rape my wife.”