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 — “Tweety 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.

Lower courts divided on the issue, and the case went all the way to the Supreme Court of Canada. [Footnote:] The trial court convicted the man, holding that she could not “legally consent to sexual activity that takes place when she is unconscious.” The appellate court disagreed, holding that “[t]here is no basis for holding that … a person cannot legally consent in advance to sexual activity expected to occur while the person is either unconscious or asleep.” The Supreme Court ultimately sided with the trial court[:] … “The 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.” … [EV adds: According to the court, “K.D. made a complaint to the police two months [after the sexual contact] and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred. She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son. “]

This case presents the important legal question of whether one can consent prospectively to sex…. [This] has significant practical implications beyond the context of temporary incapacity and kinky sex. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments. Dementia and other conditions can deprive individuals of the legal capacity to consent to sex, effectively barring them from having a sexual life. However, sexual desire and behaviors often continue unimpeded, as increasingly depicted in popular culture.

In this social and demographic context, individuals may want to consent prospectively to sex for a variety of reasons. They might have an interest in enabling sexually fulfilling lives for their future disabled selves, in preserving important sexual identities or relationships, or in protecting spouses from criminal prosecution for rape.

These interests are particularly threatened in the context of residential care, where institutions adopt sexually restrictive policies and aggressively police sex among residents for fear of liability. Unfortunately, this is not a hypothetical issue. Last year in Iowa, state prosecutors tried a man for sexual assault because he allegedly had sexual contact with his wife, who was suffering from Alzheimer’s Disease, while she was residing in a nursing home.

The law currently provides a tool for advance decision-making in the face of expected incapacity: the advance directive. This legal device permits individuals to set forth consent decisions in advance, or to empower agents to make said consent decisions in the event of legal incapacity. These tools have been part of the legal landscape for many years. Living wills have been used in the health care domain to permit advance decisions about end-of-life treatment, and powers of attorney allow one to delegate financial decision-making authority as well. However, scholars have never explored whether this traditional legal device should be applied to the unique decision-making domain of sexuality.

The central claim of this Article is that the law should recognize sexual advance directives for people with persistent acquired incapacity, derived from conditions such as Alzheimer’s Disease, in the context of long-term care institutions. In other words, people facing chronic conditions that threaten their sexual consent capacity should be able to engage in sexual advance planning to preserve the possibility of a sexual life for themselves and their sexual partners….

[T]he Article … draws on insights from the law of wills, criminal law, and fiduciary law to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse. To ensure that prospective consent is authentic, the sexual advance directive must be executed with the heightened level of formalities required of wills — a writing, signature, and attestation of two witnesses. These formalities provide courts with good evidence of prospective consent and protect individuals in memorializing their sexual wishes.

To ensure that contemporaneous consent is voluntary, the individual must verbally or nonverbally express consent to sexual contact. In other words, silence or inaction should not be taken to constitute consent, as it risks being the product of a cognitive or communicative impairment instead. This affirmative consent standard has been controversial in criminal law, but it is justified with this population to ensure that there is a genuine mental state of acquiescence to a sexual act. In certain cases, ensuring that there is in fact affirmative consent will require privacy tradeoffs in the context of institutional care.

Finally, to protect the individual with cognitive impairments against harmful consequences of sexual activity, long-term care institutions that house said individual and agents acting under a sexual advance directive must comply with a duty of care, taking reasonable steps to shield the person with cognitive impairments from objective welfare threats stemming from the sexual activity.