How Does the Law Define Consent in Sexual Assault Cases?

Canadian law allows victims to pursue sexual assault cases through criminal law and civil law. Sexual assault is tried in criminal court and results in punishment to the accused such, as jail time. Sexual assault can also be pursued through civil law, if the victim chooses, where the focus is to get justice for victims through financial compensation. The judicial system understands nothing can truly bring justice for such a crime. However, financial compensation can help with the healing process, to afford the care and guidance needed to cope with the trauma and distress that occurred, and that will continue to affect day-to-day living. Financial compensation often provides for pain and suffering and may also include compensation for the economic loss that the individual has suffered. At Equilibrium Law, we specialize in civil law and getting justice for victims of sexual assault. One of the determining, but also most complex aspects of sexual assault, is the lack of consent.

What is Consent?

For many, consent seems very simple; “yes” means “yes” and “no” means “no” However, if you have had the misfortune of being a victim of sexual assault, you are probably aware that consent is not that simple. For that reason, the courts have been tasked with the challenge of determining what constitutes consent. The law has never defined what consent is but has made very clear what constitutes a lack of consent.

There is no consent:

  • If you are silent or passive.
  • As soon as you do or say something to indicate you do not consent to an activity or to continue that activity.
  • As soon as you are no longer able to consent (i.e., unconscious).
  • If someone consents on your behalf.
  • If it is obtained by someone abusing their power, authority or position of trust.
  • If you are under the age of 16 (with some exceptions) or under the age of 18 years old if consenting to pornography or in a relationship of authority.

The courts have decided that to determine if consent was given, it is based solely on the opinion of the victim.

Consent in Relationships or Between Acquaintances. 

Consent can never be implied. When engaging in sexual activity, no one can ever assume you are okay with something, if they have not asked. Going on a date with someone does not imply consent. Being flirty with someone does not imply consent. Even inviting someone over after the date does not imply consent. Unless you explicitly and freely consented to the sexual activity, one cannot assume consent was given.

Furthermore, just because you are in a committed relationship with someone, it does not imply some sort of consent to sexual activity. Do not allow anyone to make you feel bad about having boundaries, you are entitled to them. Whether in a relationship or not, consent must be obtained. If there is a lack of consent it is sexual battery/assault.

Consent and Intoxication

Alcohol has often played a part in sexual assault cases, and due to its effects, it tends to complicate the consent aspect of these cases. Never can the accused use intoxication as an excuse for sexual assault. They cannot claim that they mistakenly thought you were consenting as a result of their state of intoxication. Where alcohol blurs the lines of consent is at what stage does alcohol result in your incapacity to consent. The courts have determined that regardless of what was occurring during a conscious state as soon as you are unconscious all sexual activity becomes non-consensual. In a case involving a 14-year-old girl who went to a beach party with friends and got intoxicated to the point of unconsciousness, she was then informed by her friends, the next day that she had sex with a 15-year-old boy at the party. However, she had no recollection of it. She then went to the hospital where potential evidence was collected and reported the incident to the police, resulting in the boy being charged with sexual assault. The boy argued that he had sex with her prior to any sign that she was too drunk to consent, and honestly believed she was consenting. The courts ruled that the boy had sexually assaulted the 14- year-old girl because she was incapable of consenting, due to extreme intoxication. However, besides being passed out drunk, there is no set threshold of intoxication that deems someone as incapable of consenting and is always determined case by case. Usually, if intoxication was not self-induced (i.e., you were drugged), courts are more generous in determining what level of intoxication is sufficient to amount to incapacity.

I said yes but…

There have been multiple cases where victims have said yes or did not resist, however, although seemingly consenting, it was not true consent. The courts have outlined 4 possibilities where no consent is obtained, even if the victim submits or does not resist;

  1. the application of force to the victim or to a person other than the victim
  2. threats or fear of the application of force to the victim or to a person other than the victim
  3. the exercise of authority
  4. fraud

I said yes but I didn’t feel like I could say no.

If you consented to sexual activity for fear of repercussions, whether it be physical endangerment or fear of backlash from a person in authority such as a professor, superiors or an employer, this is not true consent. The individual has abused their power and authority and forced consent, which the courts will not consider as true consent. In an important case regarding consent, a 17-year-old girl was attending an interview with a man and he invited her into his van for the interview, and once the interview was done, he invited her to see some of his work. During this time he made sexual advances. At first, she resisted but tried again, and she was fearful so stopped resisting. She reported to the police what had occurred and at trial, the man stated that he had a mistaken belief of consent. The courts found him guilty because he forced her consent and did not take the appropriate steps to ensure true consent. It is always the responsibility of the individual who is initiating sexual activity to ensure there is consent before proceeding. If they are in a position of power, it is their duty to recognize their authority and not initiate sexual activity. There are power dynamics in all our relationships, including those between men and women, between teacher and student, between employer and employees, and the list goes on. The courts recognize the role that power dynamics can play in consent. You should never have to be put in a situation where you have to say yes for fear of repercussions.

I said yes but they were dishonest…

The courts have determined that true consent is not obtained if there is dishonesty. What constitutes dishonesty? In a case back in 1998, a man was charged with sexual assault because he failed to inform his sexual partners that he was HIV-positive and had unprotected sex with them. Although the women consented to unprotected sex, they were unaware of his positive HIV status. Therefore, he was found guilty of aggravated assault because he failed to disclose important information and did not obtain true consent. Failure to disclose information such as an STI invalidates any consent previously given. Other forms of dishonesty that invalidate consent often occur in the sex work industry. For example, if payment is not given or if the terms regarding the sexual activity were violated. If there is dishonesty regarding sexual activity this will may invalidate consent, and you as the victims have grounds to pursue a sexual assault lawsuit.

Consent is only valid if freely given and informed. If you have been a victim of sexual assault, contact Equilibrium Law and we can help you get the justice you deserve. We hear you. We believe you. We will fight for you.

Explore More