Sexual Assault FAQ: Consent Laws In Canada
The law of sexual assault in Canada can be surprising. If you polled members of the public about whether certain scenarios amount to sexual assault, many would wrongly guess that something that isn’t sexual assault is, or vice-versa. Here are five laws of sexual assault and consent law in Canada you should know.
Five Consent Laws In Canada
1. Consent must be continuous throughout the sexual activity
At first glance, this doesn’t seem like a surprising fact about the law of sexual assault. If someone consents to sex with another person, then revokes it partway through, the other person must stop having sex with them. Otherwise, the other person has committed a sexual assault. None of this is counterintuitive.
However, what if someone were to give advanced consent to having sexual acts performed on them while they’re unconscious? They could even have a particular sexual fantasy about having sex acts performed on them while sleeping, or about being woken up by a sex act.
It turns out that Canadian law still says that’s sexual assault. It’s simply illegal to perform a sexual act on someone who is in a state where they can’t consent to sex, like being unconscious. There are no exceptions, not even if someone gives their sexual partner consent in advance.
2. Apparent consent is not necessarily actual consent
Canadian law says that in certain circumstances, a person can seem to consent to sex, but their consent wasn’t true consent. In such cases, the seemingly consensual sex was actually a sexual assault.
One example of this is if someone is in a position of authority and uses it to induce another person into consenting to have sex with them. The person in a position of authority doesn’t need to coerce the person below them. It’s enough if they use their position of authority to induce the person below them to consent to sex with them.
Another example of this is if someone has unprotected sex with another person without disclosing to them that they’re HIV positive. Assuming the other person wouldn’t have consented to sex if they had known about their sex partner’s HIV positive status, the HIV positive person is guilty of a sexual assault. The law says that the HIV positive person obtained the other person’s consent by fraud, and therefore the other person never truly consented to sex with them.
The example above might raise concerns about what amounts to fraudulently obtaining consent to sex. The law doesn’t say that a person obtains consent to sex fraudulently because, for example, they lied about their age, income, or sexual history, and had sex partner known the truth they never would have consented to sex with them. The fraud must have put the victim’s health at serious risk or related to the central character of the sex.
3. Consent occurs entirely in a person’s mind
Canadian law says that consent is entirely a matter of what someone was thinking at the time. If they thought “I don’t want to do this”, then they were not consenting to sex, even if they said out loud “this is great, let’s keep going”.
This might seem scary. It suggests that someone could theoretically be accused of sexual assault because their sex partner didn’t want to have sex with them, even though they said the opposite at the time. However, in such a case the person accused of sexual assault would have a defence of honest belief in consent.
Honest belief in consent means that if an accused honestly believed their sex partner was consenting and took reasonable steps at the time to find out if their sex partner was consenting, then they’re not guilty of sexual assault.
4. A drunken consent is still consent
There are some people who agree with the message “if you’re too drunk to drive, you’re too drunk to consent to sex”. This is not the law in Canada, but there is a level of intoxication where a person loses the capacity to consent.
The degree of intoxication required to no longer be legally allowed to drive is not high. In British Columbia, this is only 0.05 mg alcohol in 100 ml of blood. Most people will have blood alcohol levels above that number if they consume three standard drinks within an hour or two.
Having a few standard drinks will certainly be enough to impair someone while driving, but it will not be enough that the law says they can no longer consent to having sex with another person.
A person will be guilty of sexual assault if they have sex with someone so intoxicated that they no longer have the capacity to consent. To reach that level, there should be signs that the intoxication is very high. Examples of the kind of evidence that would support a person’s incapacity to have sex includes vomiting, difficulty standing up, slurred speech, slouching, sleepiness, stumbling, and confusion.
5. No one can bring up a sexual assault complainant’s sexual history at trial
As a starting point, neither the Crown prosecutor nor the defence lawyer is permitted to bring up any sexual history of a sex assault complainant, unless they get permission from the judge first. This might not seem surprising because a sexual assault complainant wouldn’t want their privacy invaded by the trial process, but this rule has a few surprising elements to it.
First, the rule applies both to the defence and the prosecutor. Even though the prosecutor is the one attempting to obtain justice for the complainant, they’re not allowed to bring up a complainant’s sexual history as part of their case. They need permission from the judge first, just like the defence does.
Second, the rule applies to all sexual history, even if the complainant and accused have been married for 40 years and have had many children together. By default, the jury is not allowed to hear about the married couple’s sexual history at all.
Third, there is no parallel rule protecting the privacy of the accused. The Crown can cross-examine them as much as they want on their sexual history, without limit, subject to the usual rules of evidence (e.g., relevance, self-incrimination, etc.).
Fourth, the rule applies to all sexual communication. This means that in a case where an accused and complainant were texting each other sexual things before the incident (e.g., the complainant messaged the accused “I can’t wait to f*** you tonight”), those communications are not admissible in court unless the judge allows it.
Fifth, in the vast majority of cases the judge doesn’t allow the prior sexual history of the complainant to be admitted at trial. The legal test for allowing this kind of evidence to be admitted is high and difficult to overcome for the defence. Even in a case where an accused is alleged to have sexually assaulted a complainant during BDSM, the accused and the complainant’s prior history of engaging in BDSM together is presumptively inadmissible. This could distort the jury’s view of the case because they might hear that an alleged sexual assault occurred in the context of BDSM without knowing the accused and complainant had previously engaged in consensual BDSM. Without that knowledge a jury would be much more inclined to think the accused is guilty because it would be strange to imagine a complainant agreeing to BDSM the very first time they had sex with someone else.
Finally, the rule exists not only to protect the privacy of the complainant, but to guard against the “twin myths” of sexual assault. These myths are that a woman is more likely to have consented to sex because of their sexual history, or that because of their sexual history they’re less worthy of being believed. Canadian law does not trust juries with the twin myths of sexual assault. Instead of judges warning juries not to think badly about the case, they prevent juries from hearing any of the evidence at all.
If you have any more questions surrounding sexual assault or consent law in Canada, call Filkow Law today.