If you engage in sexual activity, consent is really important. Consent means that someone gives permission for something to happen. If the other person does not consent, then it amounts to sexual assault. Canada has a broad definition of sexual assault and can include grabbing, kissing and rape. In general sexual assault means violating the sexual integrity of the other person.
Lack of consent to sexual activity is crucial in determining whether a sexual assault happened.
If you have been accused of sexual assault, please read what to do next and contact us at Mickelson & Whysall Law Corporation. We have experienced defence lawyers and can help you get a favourable outcome.
The role of consent in sexual assault cases
Lots of sexual assault cases hinge on the question of consent. You must understand the meaning of consent.
Did the complainant agree to the sexual activity or not? Often there are no witnesses, so it is a matter of what he said/she said, with each side drawing on small details to prove the absence or presence of consent. The complainant may say they were too intoxicated to make an informed decision or felt pressured into behaving a certain way. The defendant may deny any knowledge of this and say that the complainant actively participated.
What is sexual consent? Definition in Canadian criminal law
But what does consent to a sexual activity actually mean?
According to Canada’s Criminal Code, consent is the voluntary agreement to engage in the sexual activity in question. The person initiating the sexual activity must take reasonable steps to establish consent, which may be expressed through verbal or non-verbal signs. If someone consents to one sexual activity, then it does not automatically mean that he/she consents to another type of sexual activity. Consent can also be withdrawn at any time, by words or conduct. People can change their minds at any point in a sexual encounter.
There can be no consenting to sexual contact when:
- Someone is incapable of consenting – for example because they are unconscious
- Someone is under the legal age of consent, or engaging in sexual activity with a person of trust, power or authority – for example, a teacher or babysitter
- Someone consents on someone else’s behalf
- Someone says or does something to indicate they are not consenting or are withdrawing consent
A person cannot say they mistakenly believed a person was consenting if:
- He/she was silent or passive
- That belief was based on their own intoxication
- They chose to ignore the signs that the other person was not consenting
- They did not take reasonable steps to establish consent
- They assumed consent had been given, on the basis that consent had been given for another sexual activity
Engaging in sexual activity without consent amounts to sexual assault. Sexual assault can relate to kissing, fondling, grabbing, groping and sexual intercourse, amongst other things.
Not always straightforward – Sexual assault and consent cases handled by Vancouver Criminal Lawyers
Consent is often considered a binary decision, where ‘no means no, and yes means yes’. But as defence lawyers, we know that it is not always so straightforward, particularly when it comes to the law.
Take the case of Ross McKenzie Kirkpatrick, for instance.
He was charged with sexual assault after assuring a woman that he would wear a condom. The complainant said that unbeknownst to her, he did not wear one the second time they had sex. Mr Kirkpatrick was originally acquitted at trial. The judge stated that there was no evidence that the complainant had not consented. The case was appealed, following which two judges found that consent can be tied to certain conditions, such as the wearing of a condom. Consequently, the woman had not consented. The matter is now being considered by the Supreme Court of Canada.
Therefore, even judges disagree on the way in which consent is applied in practical terms.
There can also be an ‘honest but mistaken belief in consent’. This was relevant in one of our cases. Our client was accused of sexually assaulting his girlfriend when they were both youths. We obtained hundreds of electronic communications between our client and the complainant, which formed the basis of our defence. The prosecutor then decided to drop the charges.
Evidence is crucial
Where the question of consent is disputed, who will the court believe: the complainant? Or the defendant?
It is by no means a forgone conclusion. It all comes down to the facts of the case – and crucially, what evidence is presented. Sexual assaults are criminal charges. This means the prosecution must prove the defendant’s guilt beyond a reasonable doubt. As criminal defence lawyers, our job is to refute the prosecution’s evidence, showing that it does not prove a lack of consent.
Speak to our Vancouver criminal lawyers
If you have been accused of sexual assault on the grounds of a lack of consent, please contact us at Mickelson & Whysall Law Corporation. We appreciate that this is a scary situation to find yourself in. We also understand that you may be confused about the charges, having considered the sexual activity to be completely consensual. Our lawyers are highly experienced in defending sexual assault charges and can help you achieve a favourable outcome.