DEFINING CONSENT IN SEXUAL ASSAULT

Consent is an issue that arises in many areas of criminal law in Canada. Issues surround consent are most often associated with assault-related charges. Specifically, what is consent within the sexual assault and within common physical assault-related cases?  But consent issues frequently are in some form or another involved in a variety of criminal charges.

Toronto criminal defence lawyers know that consent is often the crux to defending assault and sexual assault charges. The Prosecutor is burdened with having to prove issues surrounding consent. The complex and often nuanced issues surrounding consent can easily be misunderstood and misinterpreted by both the public and police.

WHAT IS CONSENT?

Simply put, consent is a voluntary agreement to engage in an activity. These typically involve physical or sexual activities. Consent is only applicable if it meets specific legal requirements, and it can be revoked at any time.

WHEN IS CONSENT APPLICABLE?

Consent is applicable when it is readily, and freely given by someone who is legally capable of giving consent. You can only give consent while you are of sound mind.

WHEN IS CONSENT NOT POSSIBLE?

While the idea behind consent is simple, looking at when consent is not possible is where we see the complexity of the term. There are a number of factors wherein consent, even if given, does not legally apply.

Consent cannot apply if:

• Given under application, fear, or threat of force
• Given through abuse of positions of trust, power, or authority
• Given under fraud or deceit
• Serious bodily harm occurs, or weapons are involved
• Given on someone else’s behalf
• The party is incapable of consenting
• Age restrictions apply
• It is revoked at any time

Consent under application, fear, or threat, of force.

One can only give consent of their own free will. Consent given as a result of force or threats removes the element of free choice. If someone feels forced to consent, consent does not apply.

Consent is given through abuse of position

Abuse of a position of trust, power, or authority nullifies consent. A clear example of this is that a student cannot consent to a teacher. Not all cases of consent through abuse of position are quite as cut-and-dry.

In the case of employer-employee relationships, sexual assault lawyers have a more difficult task proving or disproving consent. Technically consent can be given to an employer-provided it was not obtained through abuse of position. However, it is easy for the employee to claim abuse of position based on a real or assumed notion that they could lose their jobs, raises, or other opportunities.

Consent is given under fraud or deceit

Consent given under fraud or deceit can involve active and deliberate misrepresentation of the truth or the omission of relevant information. An example of this is if someone with an STI knowingly has sex with someone without informing them. Given consent no longer applies, because they are unable to consent to the unknown risks.

Serious bodily harm

No one can consent to serious bodily harm. That includes bodily injuries that risk death, disfigurement, unconsciousness, extreme pain, loss or impairment of mental faculty or bodily member and organs. In short, any lasting or severe injury constitutes serious bodily harm.

The use or threat of a weapon creates a substantial risk of serious bodily harm. As a result, it negates the ability to give legal consent. Any legally given consent is revoked once the serious injury is threatened, risked, or occurs.

There are some exceptions to this. For example, signing up for a sport like football comes with a risk of serious injury. Participation in the sport implies consent as the risks are known. Serious bodily harm such as a concussion or broken arm can occur without assault charges applying. However, that is only if it occurs within the limits of what is acceptable in the sport. For example, if another player hits you with a foreign implement or is deliberately trying to cause bodily harm, that falls outside the limits of consent.

Consent is given on someone else’s behalf

Consent must be directly given. You cannot give consent to someone else, even if they ask you to give consent for them. Even a legal guardian cannot give consent for someone under their charge in the event of an assault or sexual assault.

Not being of sound mind to consent

Consent can only be given by those of sound mind. Someone who is unconscious, for example, is incapable of giving consent. Other situations, such as alcohol, can complicate consent. Consent can be given while under the influence of alcohol. There is, however, a degree of intoxication where consent no longer applies. The limit is not clearly defined, which can make alcohol and consent a more complicated matter for criminal defence lawyers.

Mental health can also affect the ability to consent. In this case, the court needs to establish whether consent was knowingly achieved through an abuse of the complainant’s mental health or state.

Age restrictions for consent

There is often confusion as to the age of consent in Ontario. Technically, the age of consent is 16 years. While official numbers exist, individual circumstances can influence age restrictions for consent.

For those under 16 there are different regulations. Peers who are close in age between 12 and 16 years can consent to each other. Anyone under 12 is not capable of giving consent to anyone. As well, everyone under 18 is protected from sexual exploitation.

Revoked consent

Consent can be revoked, physically, verbally, or by conduct at any time before or during the activity. Consent is revoked automatically if the situation extends beyond that understood or implied when consenting. This could include injury, use of a weapon, unexpected violence or aggression during sexual activity, among others.

IDENTIFYING WHERE THE LINE IS DRAWN ON CONSENT

Every case involving consent is unique. There are no hard and fast rules for consent in assault and sexual assault cases. So to give an idea of where consent does or does not apply we provide the following example.

Two adult men of sound mind consent to fistfight each other. If both agree of their own free will, this constitutes consent. If one of them is in a situation where they feel forced to fight consent no longer applies. This can be as simple as being cornered. A cornered person may feel like they have no other option and therefore aren’t capable of giving legal consent.

If one loses or gives up and the other backs off, the conditions of consent have been followed. Once the fight is over, that is the end of the consensual activity. If someone goes down, asks to stop, or gives up through verbal or physical communication, that is the end of consent. Kicking someone who is down or attacking them after they give up is assault because consent no longer applies.

Additionally, the degree of injury inflicted or intended alters the conditions of consent. If one of both men leave with minor injuries such as small cuts and bruises, consent still applies. No one, however, can consent to serious injury. So any major injury may result in assault charges.

As well, an omission of pertinent information can constitute consent under fraud. For example, if one of the men knowingly has a serious communicable disease or infection that they do not disclose. In a fight, there is a possibility to spread this. A serious disease of infection is outside of the scope of legal consent.

In any fight, there is a risk of severe injury and opening yourself up to a lawsuit. Even if consent applies, any good assault defence lawyer would recommend avoiding fighting if possible.

CONSENT IN SEXUAL ASSAULT AS A DEFENCE

One of the most challenging, but important, roles of a Toronto criminal assault lawyer is establishing that consent applies. If proven, consent is a powerful defence. Generally, it is enough to overturn charges, as legally given consent implies no criminal activity occurred.

Even if consent does not technically apply, demonstrating that the accused had a genuine belief that they had consent is still beneficial. For one, this can remove the severity of sentencing if convicted. It proves that the criminal activity was not planned in advance.

Depending on the situation, a genuine belief in consent can result in leniency – and in some cases even acquittal. Other aspects generally factor into such decisions including:

• Criminal record
• Character profiles (of complainant and defendant)
• Social media and online activity
• Demonstration of remorse (i.e. apology)
• Unique circumstances
• Age

HIRING AN ASSAULT LAWYER

If you or a loved one is facing assault charges, you need an experienced criminal defence lawyer. The laws around consent are nuanced and a good defence relies on years of experience. William Jaksa is one of the best criminal lawyers in Toronto with over a decade as a defence attorney. Contact us today for the best representation.