The recent Hockey Canada sexual assault case revolved very much around the issue of consent. The law of consent is relatively straightforward; just think of it as permission. It must be obtained prior to initiating sexual contact and it must be positive voluntary verbal communication or conduct expressing the willingness to engage in the sexual activity contemplated. Voluntary means it cannot be the result of “fraud, force, fear or violence”.
Age is a major consideration in consent in that it cannot be obtained from someone under 16 years of age, which is the age of sexual consent in Canada. There is an exception for that in youthful romances where persons ages 14-15 can give consent to someone no more than 5 years older than them (ie. 14-year-old and 18-year-old couple). For those who are 12 and 13 the same exception applies but the age difference shrinks to only two years (ie. 12-year-old and 14-year-old couple). In both these age exceptions the older party cannot have any power or authority over the younger (ie. camp counsellor).
There are specific situations where consent is not obtained or cannot be obtained as set out in s. 273.1 of the Criminal Code of Canada and they are as follows:
(2) For the purpose of subsection (1), no consent is obtained if:
- (a) the agreement is expressed by the words or conduct of a person other than the complainant;
- (a.1) the complainant is unconscious;
- (b) the complainant is incapable of consenting for any reason other than unconsciousness;
- (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority;
- (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
- (e) the complainant, having initially consented, expresses, by words or conduct, a lack of agreement to continue the activity.
So that means consent cannot be provided by anyone other than the individual who is engaging in the sexual activity. They cannot be unconscious or otherwise unable to consent (ie. severely intoxicated). These two are quite straightforward and I think most folks would understand that.
Consent also cannot be induced by abusing a trust, power or authority position. This can be more challenging because the inducement may be more subtle and the power imbalance may not be addressed at the time of the interactions. Basically, if there is an imbalance in the sexual partner’s positions (ie. power, trust and authority) you have to be alert to this factor. The most common situations are teacher/student, doctor/patient, priest/parishioner where consent cannot truly be obtained but even a workplace power imbalance could become a factor. Be alert to this.
The “expresses, by words or conduct, a lack of agreement”, is the classic verbal NO or STOP or any conduct which suggests an unwillingness. This too seems straightforward but sometimes the individual may be giving cues which they think are loud and clear but the other person is not picking up on them. Always obtaining positive verbal consent is the best remedy for this. As the final factor shows, the consent can be revoked at any time so a later confirmation of consent is a good practice. Does it kill the mood to briefly ask “Are you OK?” or “Are you still good?”; not at all compared to the fallout of proceeding where one party doesn’t feel that they gave consent or that they revoked it. When the nature of the act changes it is important to obtain fresh or renewed consent.
Mistakes can be made in the assessment of consent and the criminal law factors that human element into the assessment of consent. This is sometimes referred to as an Honest but Mistaken Belief.
To understand this concept, you need to start with the understanding that any belief that “silence, passivity or ambiguous conduct” constitutes consent is not allowed. So basically, one cannot say “she didn’t say or do anything” as the basis for a belief that you have consent. People’s reaction to traumatic situations such as a sexual encounter which they want nothing to do with are threefold: (a) flight (b) fight or (c) freeze. If someone just freezes and the other individual proceeds without any verbal communication or conduct supporting consent, there is no later ability to claim an honest but mistaken belief.
To have an honest but mistaken belief to consent there must be three conditions satisfied:
- Evidence that the accused believed the complaint was consenting (ie. an honest belief as demonstrated by the evidence).
- Evidence of a lack, refusal or inability to consent;
- Evidence of state of ambiguity which explains how the lack of consent could have been honestly understood to be consent.
The practical aspect which is a large part of honest but mistaken belief in consent is if the accused individual took reasonable steps to ascertain consent. Beyond the honest subjective belief component courts have used the language of “reasonableness” and “proactive steps” to judge the efforts to obtain consent and how the mistaken impression could have resulted.
It is significant to note the reasonableness and proactive steps vary by circumstances. Where intoxication of any degree is present as well as situations of limited familiarity (ie. stranger after the bar) greater reasonable steps are expected.
Ultimately consent to engage in sexual relations is not just permission to carry out a physical act it is also a psychologically intimate sharing. Therefore, care and communication around ensuring consent do not detract from the moment but in fact are expressions of intimate concern for your partner. Take the time and the care to get consent right and both parties will come out of the moment feeling respected, heard and cared for.
