Consent is one of the most misunderstood concepts in Canada. While some people disregard age differences between intimate partners, others misinterpret silence as consent. Resultantly, the first argument a defendant puts forth is that the victim did not object to the activity or that the victim verbally agreed to it.
You must understand that consent has different literal and legal meanings. Saying yes to an act is clearly not enough to justify sexual activity with an underaged person. This is where the concept of statutory rape comes in.
If you are facing sexual assault charges involving an issue regarding your intimate partner’s age of consent, immediately consult a reputed sexual assault defence lawyer. An experienced sexual assault lawyer will thoroughly examine the circumstances surrounding the conduct and present a winning strategy that will ensure a foolproof defence.
Read Also: Pardon For Sexual Assault Charges In Alberta
To many, sexual assault is just about forcing someone into having intercourse with oneself. However, sexual offences span beyond the concept of physically forcing someone into sexual activity and involve illicit gestures, sexually luring a minor, public exposure, and much more. And when an underaged person is involved, the offence becomes even more serious and severely punishable.
From the above discussion, we can deduce that consent is not as simple as just saying yes to a sexual activity. In fact, it is a double-edged legal sword that spans around the victim’s legal age and their unequivocal uncoerced participation in any sexual act.
Thus, you can’t just say that a victim consented to the act in your defence if you did not take reasonable measures to affirm their age.
In this blog, we will discuss consent, the legal age of consent, and when an act falls under sexual offences in detail.
Consent And Its Legalities
Canadian laws leave no stone unturned when it comes to protecting the rights and interests of an individual. But when a sexual assault case involves an underaged person, the situation is treated even more sensitively.
According to Section 273.1 (1), consent is a victim’s voluntary agreement to engage in the sexual activity in question. The Department of Justice further clarifies that silence or passivity does not mean consent.
Moreover, not everyone can consent to sexual activity. For instance, you can not request consent from an intoxicated, mentally impaired, or underaged individual.
Legal Age Of Consent In Canada
According to the Department of Justice, the legal age of consent in Canada is 16 years. However, a lot of exceptions and exemptions apply to this age limit. While an individual aged 16 and above are considered mentally mature enough to decide, there are circumstances that render their consent void.
Likewise, if both partners are underaged and the age gap between them is not wide, sexual activity does not constitute an offence. The above discussion further gives rise to two kinds of situations:
- Cases of exceptions in which people under the age of 16 can consent.
- Cases of exemptions whereby consent given by an individual aged 16 becomes void.
Let us explore both cases briefly:
As pointed out earlier, there are a few instances when an individual under the legal age of consent (16 years) can legally consent to sexual activity. The first case is when one party is 15 years old, and the accused is less than five years older than the first party.
So if a 15-year-old individual’s parents press charges of sexual assault against you because the former is underage, your sexual assault defence lawyer can use this close age exception as a form of defence.
The second close-age exception is also called the peer experimentation exemption by the Sexual Assault Centre of Edmonton. In this case, a minor aged 12 or 13 years can consent to a partner who is less than 2 years older than them.
In these two cases, charges of statutory rape do not hold true.
However, neither the minimum age value nor the exceptions above apply if the accused has some sort of authority over the victim. That is, a 16-year-old can not consent to sexual activity (despite having reached the legal age of consent) with a person who is in a relationship of trust, power or dependency with them.
An example of this kind of relationship would involve a teacher and a 16-year-old student. This kind of sexual act is regarded as sexual exploitation, and charges of sexual assault may be placed against the teacher.
Hiring an experienced sexual assault lawyer who knows exactly how to navigate the judicial system can help you build a strong defence case. Hence, you must always seek sexual assault defence services from a well-reputed and experienced sexual assault defence lawyer.
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