Consent for sexual activity is perhaps the most misunderstood and debated aspect of relationships or temporary sexual engagements. Perhaps one of the major reasons behind such misunderstandings is the false yet widely believed portrayal of a romantic moment in a movie, novel, or through any other media. Despite the detailed discussions in Sections 271, 272, and 273 of the Criminal Code of Canada, people still can not seem to grasp the idea of what is legally acceptable.
As a result, they often misperceive circumstances and unintentionally indulge in activities considered as sexual offences. For instance, many people falsely believe that uttering profane words or indecent touching constitutes a sexual transgression. So they flip the tables and make indecent gestures such as self-touching or public exposure to lure their prey. Sadly, this kind of action lands them in hot water.
On the other side, even a purported victim may occasionally abuse their position and file a complaint against the person who started the sexual activity. People who forebear a grudge against one another might, for instance, decide to accept the sexual activity tacitly rather than explicitly objecting. They then drive the hammer home by accusing the defendant of coerced sexual activity by saying they did not express consent to it.
Evidently, only a highly reputed and experienced sexual assault defence lawyer can help you prove your innocence and save your reputation.
If you are facing charges for sexual assault but are clueless about why you are being blamed, then you are in the right place. This blog post will provide a brief yet systematic and comprehensible overview of the Canadian consent laws and the related misconceptions.
What Is Consent?
In simple words, consent means giving permission for any act. In the case of sexual assault cases, it relates to a complainant’s forthright willingness to engage in sexual activity with the accused. However, numerous factors surround consent.
- It must be voluntary, not coerced. That is, a person can not threaten another individual into giving their consent to a sexual act.
- No one but the person involved in the activity must give consent. For instance, parents, intimate partners, spouses, friends, and guardians can not give consent on behalf of a person.
- The legal age of consent is 16 years.
- The legal age for consent in a relationship of authority, trust, or dependency is 18 years. The same applies to prostitution or pornography.
- A 14-year old can legally consent to someone less than five years older than them.
- A 12 or 13-year individual can consent to a person less than two years older than them.
- You can not obtain consent if your partner is intoxicated or unconscious.
- Even spouses and people in intimate relationships must obtain consent from their partners.
- Past consent can not be used as a defence for lack of consent for the recent activity.
Absence Of ‘No’ And Implied Consent
In Canada, there is nothing like ‘implied’ consent. Thus, your partner must express their consent through words or encouraging actions. However, You cannot take the absence of a refusal as an encouraging gesture. For instance, if an individual is too paranoid about expressing their consent, the responsibility lies upon you to take reasonable steps to ensure that they consent to the activity.
According to Section 273.2 of the Code, one can not use honest belief in consent as a defence against sexual charges if one did not take reasonable steps to ascertain whether the complainant was consenting.
In this regard, you must be alert to signs of refusal such as:
- Trembling, irregular breathing, or crying
- Shaking head
- Resisting touch or pushing away
- Complete silence
- Walking away or being unresponsive
In short, if your partner says or does something that shows their reluctance, step back.
Consent Is A Continuous Process
Consent for one act does not give you permission to move on to the next sexual activity. For example, if the claimant allowed you to kiss them, this does not mean you have the right to touch their genitals or other such parts. You must seek consent whenever you switch from one activity to the next.
Similarly, your sexual partner has the right to withdraw consent at any time during the activity. If they originally consented to intercourse, they have the right to stop you midway, and you must stop. Otherwise, you will be found guilty of sexual assault. However, a victim can not withdraw consent once the activity is over. That is, they can’t say, “I didn’t want this,” after giving you full permission to indulge in the act.
Clearly, a proper defence against a sexual offence is only possible with the help of a criminal defence lawyer with profound experience in handling such cases.
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