Sexual Assault Charges? Find Out Why Consent Matters

Canada has a broad definition of sexual assault. It is not just about rape. It also covers all unwanted sexual activity, including sexual grabbing, kissing, and fondling. The bottom line is, any form of sexual activity requires consent from both (or all participants) to be legal in Canada. Because accusations can quickly escalate, clear consent is required to avoid sexual assault charges.

Consent Defined

Sexual consent is defined in Canada’s Criminal Code s. 273.1(1), as “the voluntary agreement to engage in the sexual activity in question.” Because sexual touching can escalate in the heat of the moment, consent is necessary as the contact and sexual touching progresses. As well, silence or a failure to protest as sexual activity continues is not actually considered consent. Consent must be clearly communicated either by words or conduct, without it, you could face charges.

Examples When Consent is Not Given

• According to The Criminal Code consent has not been given when:
• Actions or words are used that indicate they are not consenting to an activity OR someone wishes the activity to end, once in progress
• Someone is incapable of consent such as a person who has passed out due to drug or alcohol consumption
• Consent is given to an authority figure such as a boss, a coach, or a teacher
• Consent is given by someone other than the person who is to participate in the sexual activity Unfortunately, it is always possible for either party to perceive certain things to have taken place, which can make it hard to prove consent.

Mistaken Consent

“Excuses” for misreading consent can be hard for a criminal lawyer to defend. The court will definitely frown upon cases where the accused claims consent might be mistaken based on:

• Claiming to be intoxicated and unable to understand someone’s lack of consent
• The accused being reckless when determining if the person consented
• The instigator ignoring signs there was a lack of consent
• Not taking proper steps to ensure consent was given In a nutshell, the responsibility for ensuring there is consent lies with the initiator of the sexual activity.
• Without it, you could be depending on your criminal defence lawyer to prove your innocence.

Timelines

Even if you have proof a date was planned specifically for sexual contact, you cannot consider this consent. There is always the chance someone can change their mind or reach a state they are unable to consent at the time of the date. Therefore, consent must occur at the moment directly before the sexual activity begins and as it progresses.

As well, a person who consented to sexual activity with someone in the past is not necessarily going to consent in the future. In fact, rules apply regarding an assault lawyer using a person’s past sexual history to defend their clients.

Sexual Assault and Age

The age of consent for sexual activity is 16 years old. However, this changes when one person holds a position of authority, trust or dependency such as a teacher and student, coach and player, or even a babysitter and parent. Restraint is always advisable in these situations. It can be hard to tell someone’s age and asking for proof of age is not practical. Therefore, when interacting with younger partners, consent is very important.

If you are facing sexual assault charges, you do not have to face these charges alone. Contact What the Law 24 hours a day, seven days a week by telephone or text at 647-295-6499.