Every Breath You Take: Erotic Asphyxiation, Vengeful Wives and Other Enduring Myths in Spousal Sexual Assault Prosecutions

Abstract

The Supreme Court of Canada’s important decision in J.A. should end reliance on the defence of advanced consent thereby helping to ensure that women who are unconscious for any reason are protected from sexual assault. A closer analysis of the case and related jurisprudence also reveals that this decision does not support fears that BDSM practitioners now face heightened risk criminal prosecutions. But it illuminates other serious problems that arise, especially in spousal sexual assaults prosecutions, including minimization of the harms of strangulation, a willing to see violence as enjoyable, and the continued reliance of sexual history evidence without more contextualizing information, especially the defendant’s prior violence against the complainant. It also raises questions about whether and when expert evidence is required in spousal sexual assault cases.