What if I have text messages to prove the complainant consented to sex

Susan Karpa Criminal Lawyer in CalgaryIf you have been charged or are being investigated, hiring a Calgary sexual assault lawyer is important. I can explain the strategy for fighting these charges, the repercussions of a guilty plea, the nature of a peace bond if applicable, and other related aspects of your charges. Contact us now at 587-888-7149 for a free consultation.

What if I have text messages to prove the complainant consented to sex?

It is likely surprising to most people that with recent changes to the law, text messages from the complainant usually cannot be used in a sexual assault trial to prove that they consented to sex. However, they may be useful in other ways.

The reasons text messages are often not usable to prove consent are complicated, but they pretty much boil down to the criminal law definition of consent to sexual activity: Consent is all about the state of mind of the complainant – they only consented if (1) they were capable of consenting, and (2) they voluntarily agreed to all of the sexual activity that happened while it was happening.

Because of this, there are rules of evidence that restrict when and how text messages may be used in sexual assault trials. Even with these restrictions, text messages can sometimes be useful to the defence in a sexual assault trial. Below, I discuss how a text message can help prove consent.

I have separate FAQ about what consent means in sexual assault cases, the “age of consent,” whether drunk people can consent, and what evidence can be used in a sexual assault trial.

How can a text message help prove consent?

A text message alone cannot prove consent, but it can combine with other evidence to bring the court to reasonably doubt that the alleged sexual assault happened, leading to an acquittal. To understand how a text message can be used in this way, it helps to first understand what consent means – and does not mean – in sexual assault cases.

Consent cannot be given in advance and is not about how the complainant acted before, after, or even during sex. Just because someone consents in one moment or to one sexual act, does not mean they consent in the next moment or to the next sexual act. Because of this, evidence about those things is often not admissible at trial.

People are objectively incapable of consenting if they are too young, too intoxicated, in trust, dependency, or certain authority-position relationships, or are cognitively incapable. As such, text messages that suggest people subjectively consented are unhelpful if they were objectively incapable of consenting.

A text message alone cannot prove that the complainant consented to sex because it cannot show what was in their mind during the sex. However, there are some cases where a text message may, along with other evidence, help create a reasonable doubt about whether the complainant did not consent to the sexual activity.

Examples where a text message may help prove consent

Consider the following four hypothetical scenarios in which a text from the complainant may help your defence in a sexual assault trial (presuming in each scenario that the complainant was objectively capable of consenting and the text messages are admitted as evidence at trial).

Scenario one: You went on one date with the complainant two years ago, and the two of you never met again. She does not claim that you ever met aside from the one date. The day after the date, she texted you: “I really enjoyed our date at my place last night, but you’ll have to keep waiting before any clothes come off!” At trial, however, she alleges that you sexually assaulted her on the night of that date by tearing off her clothes and having forced sex with her. When your defence lawyer confronted her with the text message on cross examination at trial, she admitted that she sent it but forgot about it and offered no believable explanation for why she is now saying something entirely different. In this case, the court, after considering all the evidence, may be left with a reasonable doubt about whether you are guilty, and therefore acquit you of the charge because the complainant showed that they are either not credible (i.e., not believable, or untrustworthy) about the accusation, or not in a position to give reliable evidence about it (e.g., because of poor memory of the events).

Scenario two: The complainant sent you a text message that said something like: “I can’t believe you grabbed my ass at my housewarming party tonight,” but you have evidence proving that you were in Costa Rica that night, not at the complainant’s Calgary condo for his housewarming party. In this scenario, the text could help you by leading the court to find, based on all of the evidence, that you could not possibly have committed the alleged sexual assault because you were somewhere else when it allegedly happened.

Scenario three: The complainant sent you a text two hours after you two had sex that said something like: “I consented to all of the sexual activity that happened between us two hours ago.” This may be the most helpful text that one could imagine in this situation. However, even with this, the court may still find that the complainant did not consent and convict you of sexual assault. After all, if you are finding yourself in a sexual assault trial, it is because the complainant is now saying that they did not consent. In this hypothetical scenario, they would likely know that they sent you this text and give the Court a reason why they are now saying something different. The court must consider all the evidence at trial to decide whether each element of the alleged offence was proven beyond a reasonable doubt. It is possible that the Court would find you guilty of sexual assault despite that text message, based on all of the evidence together. (I explain the elements of sexual assault in my FAQ: “What is sexual assault?”.) However, this text could be the key piece of evidence in your successful defence.

Scenario four: You have sex with the complainant and there is every indication that they consented to all the sexual activity as it was happening. An hour after having sex, you two get into an unrelated argument – they thought you two were in an exclusive relationship, but you told them you had no interest in them beyond a casual relationship. You two parted ways on bad terms. Later that night, the complainant sent you a text message that said something like: “So, you’re really not going to call me back? Enjoy having your life ruined. You have no idea what I’m capable of…” This text could be interpreted as suggesting a motive to set you up to be wrongly convicted of a sexual assault you did not commit. Although this text message is probably less helpful than those in the other scenarios above, it may be the last piece of evidence needed to give the Court a reasonable doubt about your guilt, leading you to be acquitted of the crime.

When can text messages be used as evidence in a sexual assault trial?

One challenge with using text messages in sexual assault trials is that it often requires convincing the judge to allow it to be used as evidence in the trial.

Criminal law trial decisions must be based on all the evidence admitted at trial, and there are rules about what evidence is and is not allowed to be admitted at trial. These are called “rules of evidence,” and there are specific rules of evidence for sexual crime trials, including sexual assault.

Section 276 of the Criminal Code creates rules of evidence that limit what evidence about a complainant’s sexual activity can be admitted at trial. If the defence wishes to use a text message relating to the complainant’s sexual activity, they have to try to persuade the judge that doing so does not violate section 276. This is called a “section 276 application.” 

A section 276 application is required whenever an accused person wishes to use evidence about the complainant’s sexual activity other than the alleged sexual activity that the criminal charge is based on. This includes sexual activity that happened before or after the events that led to the charge.

“Sexual activity” includes not just sexual acts, but any acts “done for a sexual purpose,” and any communication “made for a sexual purpose or whose content is a of a sexual nature.” As a few examples, courts have found sexual activity to include the following:

  • Discussions and invitation to have a “threesome.”
  • Passionate kissing in the bathroom.
  • Posting sexually explicit images on social media.
  • A description of being sexually assaulted in the past.
  • Engaging in online sex chat with a stranger.
  • The presence of “BDSM” equipment used by the complainant.
  • “Solo” sexual activities, such as watching pornography.

That means that text messages about the complainant engaging in any of the above activities will only be admitted with a successful section 276 application. 

To succeed in a section 276 application, the defence must persuade the trial judge that the evidence is being admitted for an acceptable reason, and not for a reason based in myths or stereotypes about sexual assault.

There is another challenge that you might face in trying to get a judge to admit a complainant’s text message as evidence in a sexual assault trial: it may be considered a “third-party record.” If it is, then the text message can only be reviewed or admitted by the judge as evidence if the defence makes a successful “third-party record application” (sometimes called a “278 application).

A third-party record contains personal information about the complainant which they would reasonably expect to be kept private and was not produced to investigate or prosecute a crime. Third-party records include medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records, personal journals and diaries, and more. Often, the accused does not have control over a third-party record, but the prosecutor must tell the defence that it exists, and the defence can then make a different kind of third-party record application to have it disclosed to them. I have a separate FAQ about third-party records, which covers that kind of third-party record application. This FAQ is about a text message that might be considered a third-party record, that you already have control over, and that you want to use as evidence in your defence at trial.

If you received a text message from the complainant, then it is probably not a third-party record because the complainant could not have reasonably expected it to be private once they sent it to you. But if you got the text message in some other way – like sneakily taking pictures of the complainant’s personal, private conversation with someone else – then it may be considered a third-party record. That will depend on the situation and be up to the judge to decide based on the law.

If the text message is found to be a third-party record, then you will have to succeed in a 278 application for the judge to review it or admit it as evidence at trial. The judge should allow your third-party record application and admit the text message as evidence if doing so is so important to your ability to defend yourself that it must be prioritized over the complainant’s interest in keeping the text private.