Sexual Assaults In Canada - What Is Consent?
Sexual Assault is among the most serious offences in the Criminal Code of Canada. Canadian courts continue to fine tune the law of actual consent, and honest but mistaken belief in consent.
What is Sexual Assault?
Sexual Assault is loosely defined as “any unwanted sexual act done by one person to another or sexual activity without one person’s consent or voluntary agreement”. Unfortunately, the definition is more complex than it should be. The Criminal Code does not contain a specific explanation, but instead relies on an interpretation of multiples sections.
Fighting Sexual Assault charges
Two common defences to Sexual Assault, are honest but mistaken belief in consent, and actual communicated consent. My colleague, Joshua Rogala, is an experienced Criminal Lawyer who has written an in-depth article on honest but mistaken belief.
What is consent?
Section 273.1 of the Criminal Code defines consent as the voluntary agreement of an individual to engage in a specific sexual activity. Consent must be present and ongoing at the time of the sexual activity and can be withdrawn at any time.
Consent must be communicated. The law does not allow for it to be assumed or implied. Outdated concepts of “no means no”, as many were taught in Sex Ed. classes in school, are not enough in a Canadian courtroom. The law does not change if someone has consented before, even many times before, with the same person. To use the defence of actual consent, an accused must show how consent was communicated at the time of the sexual activity, and that the other person(s) was capable of consenting.
While there is no strict requirement that consent be communicated by words, it must be made clear through words and/or conduct. Canadian courts are directed to interpret any uncertainty or ambiguity as a lack of consent.
To put it into Grade School Sex Ed. terms, only “yes means yes”, and only for the specific sexual activity that the individual agreed to. Anything less puts a person at great risk of being in a non-consensual encounter.
What is not consent?
In many ways, it is easier to think in terms of what is not actual consent. The Criminal Code provides many examples in Section 273.1(2):
NOT an agreement expressed by words or conduct of a person other than the individuals involved in the sexual activity
NOT able to be given by an unconscious person
NOT able to be given by a person a person who is incapable of consenting for other reasons (ex. too intoxicated, or in a psychotic state)
NOT able to be given by a person pushed into the sexual activity by someone abusing a position of trust, power, or authority
NOT where a person expresses, by words or conduct, a lack of agreement
NOT where a person initially consents, but express, through words or conduct, a lack of consent to continue
NOT where someone is under the age of 16 (age of consent)
UNLESS someone is close in age
A 14 or 15 year old can consent to sexual activity as long as their partner is less than 5 years older and there is no relationship of trust, authority, or dependency
A 12 or 13 year old can consent, as long as their partner is less than 2 years older and there is no relationship of trust, authority, or dependency
NOT where someone suffers bodily harm as a result of the sexual activity (ex. significant bruises, broken bones, cuts, etc.)
How is consent proven in Court?
When someone is charged with Sexual Assault, the Crown – the lawyer for the government – must prove that the other person(s) did not consent. This must be proven beyond a reasonable doubt.
Many individuals have asked me, how can the Crown prove a case only on someone’s word? Doesn’t the Crown need “evidence” to prove a case like this?
The words of a person in Court, is evidence. Lawyers refer to this evidence as “testimony”. The testimony of a single witness, if believed, can be enough evidence for someone to be convicted of Sexual Assault.
How can I know if someone is consenting?
Humans are complicated and the law tries its best to respond to that complexity. But laws, like humans, are imperfect.
Reading between the lines, the law provides us with guidance:
YES means yes, by words or conduct
YES must be given, by words or conduct, at the time of the sexual activity, and for each specific sexual activity
YES can only be given by someone who is conscious, not intoxicated, and who is not being pressured by someone in a position of trust, or in authority over them
YES becomes NO where someone communicates, by words or conduct, that they are no longer consenting