All About The Law Of Consent When A Person Is High

March 18, 2022

All About The Law Of Consent When A Person Is High

Sexual assault is gender-based violence that the Government Of Canada is working very hard to eliminate. However, despite that one in three women (32%) and one in eight men (13%) become a victim of sexual assault.

These spine chilling numbers explain the dire need to raise awareness regarding what sexual assault is and why is it important to report it. As of now, only 6 in 100 sexual assault cases are reported to the police.

If you have been through something similar but do not understand what course of action needs to be taken, it is advised that you hire a criminal lawyer who has expertise in assault offences. He/she will be able to seamlessly guide you through the process.

Canadian Law has a very clear definition of consent. However, many people still do not understand what the law of consent is in the case that one or both of the involved parties are intoxicated.

Hence, to help you understand more about this heinous act, we have curated this blog detailing all the information about the law of consent when someone is high.

Consent To Sexual Activity

According to Canadian Law, an intoxicated person can consent to sexual activity until he/she is in his/her senses. However, in some cases, the intoxication can be so extreme that the person is incapable of consenting. In this case, indulging in any sexual behaviour is considered assault since the intoxicated individual cannot voluntarily make an informed decision.

Thus, the law states that “engaging in sexual activities with someone who lacks the capacity to consent is sexual assault.”

Incapacitated To Consent

Note that not all intoxicated people are incapacitated to consent. Incapacity is much more than simple alcohol or drug intoxication. In simple words, if you make a bad decision while you are drunk, you are not incapacitated. However, if you lose your inhibitions, you are incapacitated.

Some scenarios in which incapacity can be proved are:

  • The individual was asleep for a part or totality of the sexual activity.
  • The individual was unable to recognize the person on the other end due to intoxication.
  • The individual did not even realize that he/she was partaking in a sexual act.
  • The individual could not say no because they were out of their inhibitions.

What Does The Court Look For In A Sexual Assault Case?

To prove that the sexual act performed was a sexual assault, the prosecutor or the crown has to prove without a doubt that the person was unable to consent since he/she was not in his/her senses.

To prove this, in many cases, the crown relies on blood-alcohol measurements. The results help to estimate how intoxicated a person was at a particular time. This process is called toxicology.

However, if in a certain situation, scientific evidence is not available, the crown might make the decision to introduce other indicators of incapacity. These include but are not limited to:

  • significantly slurred speech
  • non-responsiveness
  • impaired balance
  • vomiting
  • loss of bladder or bowel control
  • immobility
  • memory loss or blackout

In many cases, only one of these indicators is enough to establish incapacity. If a person who consumed alcohol could not articulate proper words, it is clear that he/she was incapable of consenting.

However, if the case depends almost entirely on memory loss, the court is usually left in reasonable doubt. Lack of memory alone does not prove incapacity.

Sexual assault cases are extremely complex in nature which is why it is important to hire the best lawyers who understand the ins and outs of the case.

About Slaferek Law

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If you are scrambling with charges or are looking for a good criminal defence lawyer to fight your case, our team of trained lawyers can help you build a strong case. We have successfully closed hundreds of cases pertaining to murder, DUI, financial fraud and more.

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