What Does Consent Mean?
Consent is an agreement between two parties. It must be freely given without coercion or force. An interested party must inquire as to whether consent is being clearly communicated.
Consent can also be revoked at any time, at any given moment. For example, if a party agrees to kiss, consent only applies to that activity. Consent to kissing does not apply to subsequent contact, such as sexual intercourse. Each activity of a sexual nature must be consented to on a piecemeal basis.
Consent can be withdrawn at any moment both verbally and non-verbally. Whenever consent is withdrawn, it is essential that consent is freely given again before engaging in sexual activity.
Previous consent to sexual activity does not extend to the future. If two people have consensually engaged sexually once, a future engagement will require future consent.
What if my partner says they did not consent, but I thought that they did?
Criminal law recognizes that there might be occasions where parties walk away with different thoughts on what occurred. To prove sexual assault, the Crown must show that there was (1) unwanted sexual touching (actus reus); and (2) that the accused knew that the touching was unwanted (mens rea). Because the threshold for how consent can be communicated is so low, the law allows for a potential defence: that the accused had an honest must mistaken belief in communicated consent. To raise this defence, an accused will need to rely on evidence that shows what action was viewed as consent. This defence is often raised when the accused accepts the complainant’s testimony, but argues that they tried to obtain consent an operated under an honestly held by wrongful assumption.
When is consent vitiated?
In Canada, consent cannot be given under the following circumstances:
- When a party is under the age of consent (16 years old);
- A party cannot consent to sexual activity with a person of authority (doctor, teacher, employer, etc.) when they are younger than 18 years old;
- Intoxication vitiates consent;
- A sleeping or unconscious party cannot consent;
- Undue pressure, intimidation or coercion vitiate consent;
- Fraud vitiates consent; an
- An individual cannot consent to sexual activity that results in violence.
I Have Been Charged with Sexual Assault?
Lockyer Zaduk Zeeh has considerable experience representing individuals affected by and charged with sexual assault. In many cases, consent, lack of consent, or honest but mistaken belief in consent are the defining issues. A sexual assault allegation has serious consequences, as do convictions for the same. LZZ takes both a compassionate and proactive approach to ensure you have the best defence.
If you’ve been charged with a sexual assault, or if you are the victim of a sexual assault, contact Lockyer Zaduk Zeeh at 416-613-0416 or by e-mail at firstname.lastname@example.org. Our lawyers can assist with any step or role in the process.