Consent and Sexual Advance Directives

Fritz Allhoff, Center for Law and the Biosciences

Consent, including the ability to withdraw it, is a major issue in biomedical research, as well as in health care.  A recent Canadian case and the following discussion raises another issue around consent that may have implications for law and the biosciences.

In R. v. J.A. (2011), the Canadian Supreme Court considered a case involving a sexual advance directive.  The pertinent details are summarized in a law review artice by Prof. Alexander Boni-Saenz (Chicago-Kent), and were featured in a provocative discussion over on Volokh.  Here’s an excerpt:

In May of 2007, a woman and her long-time male partner engaged in consensual kinky sex. Specifically, the woman consented to erotic asphyxiation, or the practice of choking during a sexual encounter as a way to restrict oxygen flow and enhance sexual arousal. She also consented to sexual penetration while unconscious.

The man then choked the woman, something which they had done before, and she passed out for approximately three minutes. During that time, the man tied the woman’s arms behind her back and inserted a dildo into her anus. When she regained consciousness, he removed the dildo, and they had consensual penile-vaginal intercourse as well. After they had both finished, she said her safe word—“Tweet  Bird”—and he cut her free of her bonds. Despite the woman’s consent, the state still prosecuted the man for sexual assault, claiming that she could not consent in advance as a matter of law. (Boni-Saenz at 2-3; internal citations omitted.)

The trial court convicted the man, holding that the woman “cannot legally consent to an activity that takes place while she is unconscious.”  The appellate court reversed, arguing that there was no general principle that established this proposition.  The Canadian Supreme Court reversed again, holding that “[t]he definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.” (Boni-Saenz at n. 9).

The case raises an important theoretical possibility, namely that sexual activity and the associated consent need not be contemporaneous.  This, of course, is not how most of us would pursue consent—i.e., we’d pursue it while we were commencing the activity, not at some indeterminately prior time—but the issues are not just theoretical.  In a post-Fifty Shades of Gray milieu, sexual contracts—already the purview of some BDSM practitioners—have cross-over appeal.

Furthermore, elderly populations have an interest in maintaining their sexual autonomy, and an increasingly aged population makes more likely that this autonomy intersects diminution in capacity.  This could involve dementia, Alzheimer’s, or any number of other debilitating conditions.  In fact, the primary thrust of Boni-Saenz’s article is this phenomenon:  he’s far more concerned with protecting access to sex for the elderly than the more uncommon Canadian case.  His solution, though, is curious:  he wants to require two sorts of consent, one in advance, one at time of activity.  Of course, this is meant to protect the vulnerable, but it has the consequence of either not allowing sexual activity for someone who has not signed an advance order, or else renders that order moot if it cannot be contemporaneously reaffirmed.  But rather than try to solve some of these more complicated cases, let me back up and try to reflect on the general concern about separating consent and sexual activity.

1. A principal worry in the Canadian case is the woman’s inability to withdraw consent given that her preferred course of action would leave her unconscious.  This worry leads the Canadian Supreme Court to hold that consent without the ability to withdraw it is literally a conceptual impossibility.  This strikes me as wrong—if not completely implausible—for at least three reasons:Suppose that some person, A, has fairly specific sexual preferences. They could be like those of the woman in the Canadian case, or they could be of other sorts that similarly restrict her ability to rescind consent.  She could prefer immoderate consumption of drugs or alcohol, the use of restraints (including gagging to preclude safe words), etc.  Imagine that these preferences are the result of considerable reflection and exploration.  It seems there are a lot of things we might want to say here, but saying that she doesn’t consent to the ensuing activity just doesn’t strike me as the right one.  Rather, we could talk about something other than consent altogether, like safety, or vulnerability.  Maybe this becomes a special sort of “opt in” situation (e.g., referral from mental health provider required ), the default of which precludes even consensual adults from proceeding.  But the configuration need not have any implications for the conceptual basis of ‘consent’.
2. Analogize to different contexts. Suppose some person, B, is going in for surgery and proffers an advance directive.  Or even a durable power of attorney.  After receiving the anesthesia, this person is obviously unable to rescind any of that status.  There could be complications, maybe even with lethal implications.  But the point is that this person is bound by whatever determinations he had made before the surgery—coupled, of course, with the ongoing assessments of the medical team—and we would not impugn his consent to those determinations simply because they couldn’t be revised under anesthesia.
3. As a more broadly theoretical point, consider Ulysses strapping himself to the mast so that he didn’t flee to join the sirens in his watery grave. Again, we wouldn’t want to say that Ulysses didn’t consent being tied to the mast simply because, once the Sirens’ song began, he was unable to withdraw his consent.  Ironically in this case—and here I am surely not generalizing to the sex case—he was more competent at the outset than the critical juncture.  So the point is simply that being able to withdraw consent is not concomitant with the expression of consent at all.

None of this is meant to call into question the profound challenges that sexual advance directive may raise.  Rather, the point is simply whether consent is where we should focus.  In closing, let me mention a few possibilities.  First, we might just think public policy should control here; maybe advance sexual directives are just too dangerous, too high of propensity for abuse, and so on.  If this is compelling, we just ban them.  I worry that goes too far, particularly given broad sensibilities in promoting sexual autonomy.  Maybe a compromise would be applying for licensure, the process of which would involved training, evaluation, and so on.  This just seems a lot of oversight for what goes on in the bedroom, though.

Second, though, we could allow for criminal or civil liability, with provision for affirmative defenses.  Possibilities here obviously include waiver and assumption of the risk, but more creative plays (e.g., contributory negligence) could be raised.  So the man charged in Canada would be well within the court’s purview, but, I’d think, he could successfully defend given the details of the case.  (Note that the woman never alleged injury or conduct outside the scope of the contract.)  And, of course, knowing that criminal or civil liability are on the table might ensure—or at least promote—more responsible conduct.