Consent When it Comes to Sexual Assault
If you are intimate with someone and you ignore their pleas to stop, you could be charged with sexual assault. However, when it comes to defending those accused of sexual assault, establishing if sexual consent was given is rarely that simple.
The courts have ruled consent is an ongoing conversation – perhaps non-verbal – between partners to make sure both are comfortable at all stages of physical interaction, from touching to intercourse. Just because a person allows you to kiss them does not give you permission to grope them or remove their clothing. The consent needs to be ongoing, expressed through affirmative words and positive body language.
From a legal perspective, it does not have to be expressed verbally. Consent exists if your partner allows you to make contact without you forcing or coercing them. At the same time, your partner has the right to withdraw consent at any stage if they feel uncomfortable with what is happening.
When Consent Cannot be Given
Section 273.1 (1) of the Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question.” Voluntary is the key word there, as consent cannot be said to have been given if the person was pressured into agreeing to it.
The Calgary Police Service says consent cannot be given if the complainant had had too much to drink or was under the influence of drugs, or if you abused a position of trust, power or authority to convince the other person to participate in sexual activity. Police explain that it is easy to slip something into a partner’s food or drink without them knowing, lowering their resistance to your advances.
Consent can also not be given if someone is not awake or conscious. In a 2011 decision, the Supreme Court of Canada ruled that when a person falls asleep or is unconscious, any consent they have previously given for sex is considered withdrawn.
The Age of Consent is 16
No one under the age of 16 can legally consent to sexual activity unless both parties are within five years of age. A person who is under the age of 14 years cannot consent to sexual activity with another person who is two or more years older than them.
A 16- or 17-year-old cannot consent to sexual activity if:
- their sexual partner is in a position of trust or authority, such as a teacher or coach;
- the young person is dependent on their sexual partner for care or support; or
- the relationship between the young person and the adult is exploitative, such as having the youth engage in activities such as pornography or prostitution.
Courts will look at various factors to determine whether a relationship is exploitative. These include the young person's age, the age difference between the two parties, how the relationship developed (maybe secretly over the internet) and whether the adult had a level of control or influence over a young person.
Myths about Consent
Just because the person didn’t say “no” to your sexual advances doesn’t mean they gave their consent. A variety of factors may have caused their silence, including intoxication, peer pressure, power dynamics and anxiety.
Keep in mind that consent is not something only women can give or withhold. Men also have the right to take it slow and get to know their partners before escalating physical activity. It is important that you are both comfortable with what is happening.
It is not a defence to say a person “was asking for it” because of the way they were dressed or their behaviour at the time. For example, if they are flirtatious, you cannot assume they are giving consent for sex. Similarly, just because someone is in a bar enjoying a few drinks does not imply anything about their willingness to “hook up.” Even if that individual agrees to accept a ride home or to go back to your apartment, they still retain the right to refuse unwanted sexual contact. Sexual activity forced upon another person without consent is sexual assault.
The sexual history of a person is not relevant when it comes to consent. Despite whatever experiences they have had in the past, they still have the right to refuse consent.
There have been many cases where two people have a sexual encounter and the next day one of them claims they were raped. If you are in that situation, you must be able to demonstrate that you took reasonable steps to ascertain that consent was given.
Let us Help With the Consent Issue
The key issue in many sexual assault accusations is whether consent was given for what occurred. That can be difficult to prove since there is often little evidence other than the testimony of those involved. If you are found guilty of sexual assault, you could be jailed, as well as placed on provincial and federal sex offender registries.
Let the experienced lawyers at Dunn & Associates work to help you with these complicated issues and potentially serious consequences. If you have any questions or would like to speak to a lawyer, call us at 403-233-0443.