GENERAL

What Does Consent Mean with Sexual Assault?

Worth

When it comes to sexual assault cases, one of the crucial factors that can make or break a legal proceeding is consent. Section 273.1(1) of the Canadian Criminal Code defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. 

However, specific situations are outlined in Section 273.1(2) where consent is deemed absent. These are when:

  • Someone other than the plaintiff consents to the activity.
  • The victim cannot consent to the activity.
  • The defendant uses their position of trust, power, or authority to manipulate someone into participating in sexual activity.
  • The accuser clearly indicates their disagreement regarding engaging in the activity through words or actions.
  • The complainant initially consents to engage in sexual activity but later indicates a desire to stop.

Sexual History Is not a Factor

According to Section 276 of the Criminal Code, a plaintiff’s sexual history is not considered a relevant factor in determining their likelihood of consenting to sexual activity. This provision emphasizes that a person’s past sexual activities should not be used to doubt their credibility or right to say no. The court restricts the admissibility of evidence to specific instances of sexual activity directly related to the issue at trial and has significant probative value.

Understanding the age of consent is crucial in determining the legality of sexual activities in Canada. Generally, the age of consent is 16, but there are exceptions based on specific circumstances. As per the Department of Justice (DOJ), if a person is aged 14 or 15, they can consent to sexual activity as long as their partner is within a five-year age difference and there is no relationship of authority, trust, or dependency between them. However, if the partner is more than five years older, engaging in sexual activity would be considered a criminal offense.

Additionally, there is a provision known as the “close in age” exception for individuals aged 12 and 13. In this case, they can give consent for sexual activity if their partner is less than two years older and there is no presence of trust, authority, dependency, or exploitation in their relationship.

The age of consent can increase to 18 in certain circumstances. If the sexual partner holds a position of trust or authority over a 16- or 17-year-old, if the young person is dependent on their partner for care or support, or if the relationship is exploitative, the young person cannot legally consent to sexual activity.

In cases where someone is charged with sexual assault, the defense of honest belief in consent may come into play. The Supreme Court of Canada (SCC) established guidelines for this defense in a seminal 1999 decision. The court examines whether the accused genuinely believed they had obtained consent by considering the conduct of both parties before and during the alleged sexual assault. The key question is whether the accused believed the complainant effectively communicated consent through words or actions.

However, the defense of honest belief in consent has limitations. Section 273.2 of the Criminal Code sets boundaries, stating that this defense is unavailable if the accused’s belief arose from self-induced intoxication or if the accused failed to take reasonable steps to ascertain whether the complainant was consenting.

The case of Jian Ghomeshi, a former CBC radio personality, brought the issue of consent to the forefront in Canada. Ghomeshi faced numerous allegations of sexual assault and harassment, with some accusers claiming he never sought their consent before making sexual advances. In his defense, Ghomeshi argued that the activities were consensual and part of his private life, which he believed was unjustly scrutinized.

The court proceedings highlighted the challenges faced in sexual assault cases. The judge emphasized the need for caution when assessing the evidence of complainants and the importance of avoiding false stereotypes. The twists and turns of the complainants’ testimonies demonstrated the complexity of such cases and the need to examine the evidence thoroughly.

The Rehtaeh Parsons Case

The tragic case of Rehtaeh Parsons shed light on the devastating consequences of the non-consensual distribution of explicit photographs. Parsons, a teenager from Nova Scotia, died by suicide after facing cyberbullying and harassment following the circulation of a photo of a sexual assault. The case drew attention to the importance of consent in physical interactions and the digital realm.

Parsons’ story prompted discussions about the need for better education on consent, the impact of cyberbullying, and the necessity of legal measures to address the distribution of explicit images without consent. The case raised awareness about the lasting harm caused by non-consensual acts and the importance of supporting victims.

Ongoing Education and Awareness

In recent years, Canada has seen a heightened focus on consent due in part to the #MeToo movement and high-profile cases. Educational initiatives, workshops, and proposed awareness weeks aim to promote a better understanding of consent and foster discussions about healthy relationships, boundaries, and sexual assault prevention.

Leading North Bay law firms are actively involved in raising awareness and supporting victims of sexual assault. They provide legal advice, representation, and guidance to those affected by such crimes. Their commitment to justice and supporting survivors contributes to building a safer society.

Consent is vital in addressing sexual assault under the Canadian Criminal Code. The defense of honest belief in consent is considered, but it has limitations to prevent abuse or negligence. Real-life cases like Jian Ghomeshi’s and Rehtaeh Parson’s highlight victims’ challenges and the importance of ongoing education and awareness. Through continued efforts, we can strive for a society that respects and upholds consent, supports survivors, and prevents sexual assault.