What is consent in sexual assault cases?
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WHAT DOES IT MEAN TO CONSENT TO SEXUAL ACTIVITIES?
Possibly one of the most misunderstood issues is that of consent and how and when it is obtained in cases of sexual activity. Care should be taken for those considering engaging in sexual acts to ensure you are aware of what consent is and when it is valid. This is a common area of law that can lead unsuspecting and otherwise law-abiding citizens to have run-ins with the law due to simple misunderstandings or unfamiliarity with how the law actually treats consent.
The most basic and important fact to note, for all intents and purposes and as a general guideline, is only “yes” means yes. Consent is fluid and can change from moment to moment or per activity. The law states that just because someone said “yes” yesterday, does not mean they are consenting again today, as counterintuitive that might sound. Similarly, the law states that just because someone consents to kissing, for example, does not mean they consent to touching of other body parts. Someone may initially say yes, and then moments later or during an act may change their mind; consent can be withdrawn at any time, according to the law. It is also a common myth that just because someone does not resist or object, that they are consenting; the law does not accept this theory. Similarly, silence or a lack of response may not be indicative of consent.
The courts in Canada state that consent should be obtained for each different sexual act engaged in. If you are hesitant or unsure as to someone’s consent, you should not proceed or should clarify first before acting.
Below is a brief user-friendly overview of the law of consent and is intended to inform about the law of consent as it stands today.
WHEN THERE IS NO CONSENT – THE BASICS
Someone cannot consent to sexual activity on behalf of someone else.
Someone cannot consent if they are unconscious.
Someone cannot consent if they are forced to, coerced, or induced into it by someone in a position of trust or authority over them. For example, a teacher, coach, or parent.
Someone is not consenting if by their words or actions they do not agree or wish to engage in the activity.
There is no consent if someone is being threatened or forced to cooperate or engage in the act.
WHAT IS THE AGE OF CONSENT?
The age of consent is commonly misunderstood and not clear to most. To simplify this issue the key rules are:
- 12-to-13-year olds can consent to sex with someone less than 2 years older.
- 14-to-15-year olds can consent to sex with someone less than 5 years older.
- The older person cannot be in a position of trust, authority, or dependency with them or be exploitative in nature.
- No one under 12 can consent to sexual activity.
- 16-years old is the general age of consent.
- However, for those under 18 years old, there is still the restriction of not being in a position of authority, trust, or dependency and it cannot be an activity of exploitation such as pornography or prostitution.
There are some exceptions and defences that are case specific, give me a call to discuss your case.
CAN A DRUNK PERSON CONSENT?
The law draws a line between drunkenness and full-on intoxication to the point that someone is unable to consent. Given this line is not clear and depends on the facts and circumstances of the situation, it leads many unsuspecting people into trouble. As a general rule to protect yourself, it is best to know and safe to assume that when someone is intoxicated by substances (whether alcohol or drugs), they cannot consent to sexual activity.
This is a common problem in situations of one-night stands or engaging in sexual activity after a night out at the bar or club. While it may seem consensual, there is a very real risk that someone can claim a sexual assault occurred.
Protect yourself and simply do not engage in such activities while under the influence. It is not worth the risk.
THE FINAL WORD - CONSENT
Many cases of sexual assault that go to trial turn on the question of consent and it becomes a typical “he said she said” scenario. It takes skill, experience, and strategy to deal with these types of cases. Give me a call to discuss possible defences and how I can assist in your case.