05/27/2011 11:40 EDT | Updated 07/27/2011 05:12 EDT

No Consent In Unconscious Sex Case: Supreme Court

(CBC) - The Supreme Court says an unconscious woman can't give consent to sex. In a split 6-3 decision, the court restored the sexual assault conviction of a man who penetrated his female partner in the anus with a dildo in 2007.

The man was originally convicted of sexual assault but that was overturned by the Ontario Court of Appeal. The woman testified at trial that she consented to being choked unconscious and that she understood she might lose consciousness.

Chief Justice Beverley McLachlin, writing for the majority, said a person must be conscious during sexual activity to give consent.

Justice Morris Fish, writing for the dissenters, said that the woman consented to the sexual activity leading up to her unconsciousness and the unconsciousness itself.

The case, brought to the top court last year, centred on whether someone can give advance consent to sexual activity that takes place while unconscious.

The case reached the top court after Ontario's appeal court acquitted a man, known as J.A., who had earlier been convicted of sexual assault against his partner, K.D. The couple practiced kinky sex and engaged in erotic asphyxiation. The man would choke his partner until she fell unconscious and then have sex with her. In the instance that caused the complainant to go to the police, the woman accused the man of sexually assaulting her with a dildo in her posterior while she was passed out.

She told police she did not consent to that activity but later during the trial, she admitted she had consented to the activity and complained to police more than a month after the incident because of an argument she had with the man. The trial judge still ruled that the complainant could not legally consent in advance to sexual activity while unconscious and the man was convicted.

The Ontario Court of Appeal then overturned the conviction. The majority of judges concluded that there was no basis for the lower court judge to find that a person cannot legally consent in advance to sexual activity expected to occur while that person is unconscious. One judge gave a dissenting opinion.