Conscious of the Unconscious: Research notes
It has been a year since I first appeared on a TPOK Radio show (talking about unconscious sex). On May 1, 2016, I was the guest on The 3rd Rail with PreacherBear and Cypress. My appearance arose out of some comments I had made during the live chat and PreacherBear voluntold me to be on the next show. Great! I can do that! I have been researching this topic for years … but, talk about it? out loud? on a radio show? that will be archived??
Obviously, I overcame those trepidatious thoughts. There is now an archive of my conversation with the hosts of The 3rd Rail where I clearly articulate my fantasy of being drugged into an unconscious state and gang-banged. I even blurted out the number of Tops … 5 plus an overseer. No, I haven’t given this much thought at all. To mark the anniversary of the start of what has been a very eventful year, regarding me and radio shows, I decided to post the research that went into that show. I originally posted this on FetLife but why not add it here where all the other show-related words live?
The original posting:
On May 1, 2016, I will be chatting with PreacherBear and Cypress on The 3rd Rail (on TPOK Radio). We will be talking about one of my long-time fantasies. And whether accomplishing it legally is possible. The fantasy? Thank you for asking! Gang-banged while drugged into an unconscious state. Spreaker Airing – May 1, 2016, at 8 pm 1)When this was originally posted on FetLife, the episode had not aired.
The scenario (as I dream of it)
I would pre-negotiate my limits with a trusted partner. This would be videotaped, so he can go off and find some accomplices. I would drink the Koolaid and they would have whatever fun they want, within the negotiated limits. I would wake with no recollection of what happened and who did it, I would only have the aches and pains to remind me. The entire thing would be videotaped (the participants could wear masks if they chose). If I was curious enough, I could watch the recording, or, I could just marvel at the body of evidence on my body without knowing the particulars.
I’m not the only sick fucker!
Oh, and I’m not the only twisted fuck with this fantasy. While it doesn’t have a lot of following, there are a few fetishes here on FetLife that would describe this scenario: 2)some of these have likely been removed due to the recent “nonconsensual” purge on FetLife
- “Be quiet and eat your Rohypnol” – 120 kinksters
- drugged unconscious, waking up bound – 508 kinksters
- being fucked while unconscious – 106 kinksters
- drugged/sedated => molested while unconscious – 90 kinksters
- unconscious sex – 57 kinksters
- consensual nonconsent sleep play – 141 kinksters
- drugged consensual nonconsent – 15 kinksters
The Genesis of my appearance:
There was some discussion of this in the Spreaker chat for The 3rd Rail’s Episode 7 – It’s all about the drugz, man. While most of us agreed that this would be a sexual assault, there was some belief that since there was evidence of consent, the tops could defend themselves against any allegations of assault. The 3rd Rail Episode 8 – “The whole unconscious thing” will dispel any notion of that belief. I cannot consent, according to the Supreme Court of Canada, no matter how pumped I am for this scenario, no matter how carefully I negotiate, and even if the Top(s) stay well within my stated limits. 3)More accurately, I vacate my consent when I lose consciousness I am not a legal expert. However, I researched this topic in the hopes I can find one of my loopholes. (Tops love when I find a loophole!) The following laws are what I came up with. We will discuss these on the show, but I am putting them here so others can familiarise themselves with the jurisprudence on the topic.
What is sexual assault?
Section 271 of the Criminal Code of Canada (CCC) lays out the punishments for sexual assault, however, it does not define what constitutes sexual.
Everyone who commits a sexual assault is guilty of
- an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
- an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Sexual assault is sexual in nature:
The Supreme Court of Canada has defined the specifically sexual element of a sexual assault in R. v Chase  2 S.C.R. 293:
Sexual assault is an assault … which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”
Yeah, that’s all fine and dandy, Camille, but you are consenting! You said so, you videotaped your consent. Hell, you even wrote it out in a contract and signed it in your blood. Yes, in my scenario, I consented. Or did I?
If that ain’t consent, what the hell does consent mean??
Section 273.1(1) of the CCC defines consent as:
(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of [the sexual offences], the voluntary agreement of the complainant to engage in the sexual activity in question. 4)Emphasis added
So far, so good, right? However, we need to look at subsection (2) and subsection 265(3)
No consent is obtained, for the purposes of [various sexual offences], where
- the agreement is expressed by the words or conduct of a person other than the complainant;
- the complainant is incapable of consenting to the activity;
- the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
- the application of force to the complainant or to a person other than the complainant;
- threats or fear of the application of force to the complainant or to a person other than the complainant;
- fraud; or
- the exercise of authority
On the surface, it would appear that we are still good. 273.1(2)(a) says no one else can give consent on my behalf, but we videotaped my desire for others to be involved and I outlined my limits on the tape. 273.1(2)(b) talks about me being incapable of consenting … but I did consent. I have the pics to prove it! Right? Here’s where we have to get into the case law. In particular:
- Can I pre-consent?
- Is my consent valid while I am unconscious?
Relevant case law:
There are two major cases that answer these questions. The first case answers the question of “when must consent obtained?”. R v Ewanchuk (R v Ewanchuk  1 SCR 330) is cited in the second (more applicable case) as a precedent because it established that
- Canadian Law does not allow for an implied consent defence with respect to sexual assault, and
- You must obtain consent at the time the touching occurs.
R v J.A. (R v J.A.  2 SCR 440) is most applicable to our discussion.
- Can I consent in advance?
- Does consent continue during the period of transitional unconsciousness?
For those that look at RACK principles, while I am not going to get into the details of the case, the means of inducing unconsciousness was choking. The complainant was aware that choking could lead to unconsciousness and consent anyway. This looks a lot like Risk Aware and Consent, right?
The majority ruling …:
Here’s what the majority decision has to say (6 justices): 5)Emphasis added
Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question. Parliament’s definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious. The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.
The jurisprudence also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question. This is impossible if the complainant is unconscious.
… and the dissenting opinion:
The dissenting opinion (3 justices) actually address the scenario we are discussing. They start by agreeing that an unconscious person cannot give or revoke consent, but continue to say: 6)Emphasis added
The provisions of the Criminal Code regarding consent to sexual contact and the case law were intended to protect women against abuse by others. They aim to safeguard and enhance the sexual autonomy of women and not to make choices for them.
However, it hardly follows that consenting adults cannot, as a matter of law, willingly and consciously agree to engage in a sexual practice involving transitory unconsciousness — on the ground that, during the brief period of that consensually induced mental state, they will be unable to consent to doing what they have already consented to do. There is no factual or legal basis for holding that the complainant’s prior consent, otherwise operative throughout, was temporarily rendered inoperative during the few minutes of her voluntary unconsciousness.
I cannot pre-consent. Any consent that I gave vitiates the moment I lose consciousness. I find the idea of watching what was done hot, however, my possession of the videotape would only serve as evidence that the crime occurred. It would not give the Top(s) a defence.
From the archive. Originally posted on FetLife, 30 Apr 2016
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References [ + ]
|1.||↑||When this was originally posted on FetLife, the episode had not aired.|
|2.||↑||some of these have likely been removed due to the recent “nonconsensual” purge on FetLife|
|3.||↑||More accurately, I vacate my consent when I lose consciousness|
|5, 6.||↑||Emphasis added|