What is consent, and why is it important?
A few decades ago, the slogan “no means no” was commonly used in campaigns to educate the public about date rape and respecting boundaries. It still applies because if someone says “no” or “stop” and you don’t listen, you are committing an assault.
But sexual consent goes well beyond that, and it is not just about saying “yes.” Instead, the courts have ruled it really is an ongoing conversation – perhaps non-verbal – between partners, to make sure both are comfortable at all stages of physical interaction.
From a legal perspective, consent does not have to be spoken, but it must be clear, voluntary and expressed by the words, actions or body language of the person who is giving it. It doesn’t mean someone has to ask their partner’s permission before every physical contact leading to sex. Consent exists if your partner allows you to make contact, without that person being forced or coerced.
The Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law.”
According to the Canadian Women’s Foundation, 96 per cent of Canadians believe all sexual activity should be consensual, yet only one in three understands what it means to give consent. The Foundation explains “consent needs to be enthusiastic and ongoing. It is given with a clear ‘yes,’ affirmative words and positive body language.”
In short, consent should be both positive (e.g., saying yes, initiating and/or enjoying sexual activity) and ongoing (e.g., continues during the sexual activity).
What does it mean to consent to sexual activity?
To consent to sexual activity means to agree freely to any form of sexual contact, ranging from touching to intercourse. Consent doesn’t have to be verbal, but it has to be sought at every stage of contact, and each partner has to respect the other’s boundaries.
For example, just because a person allows you to kiss them, does not give you permission to grope them or remove their clothing. Having sex with someone in the past does not give you permission to have sex with that person again. Anyone can change their mind at whatever stage of intimacy.
Try to discuss your boundaries and comfort zones before engaging in sexual activities. Not only will both of you be more prepared and excited, but you will both enjoy yourselves more. Each time a sexual act escalates, be sure to ask for consent, as it can be revoked at any time.
If a person is feeling uncomfortable with a partner’s sexual advances, they need to clearly communicate they wish the contact to stop. The best way to ensure both parties are comfortable with any sexual activity is to talk about it.
In Canada, sexual assault is a broad category where infractions range from touching someone’s breast or buttocks to rape. In the latter scenario, the accused will almost certainly go to trial but in instances on the lower end of the scale, such as minor touching, it’s often possible to have charges reduced or discharged entirely, provided specific conditions are met.
Myths about consent
Just because someone isn’t saying “no” doesn’t mean they are saying “yes.” A range of factors could cause that silence, including intoxication, peer pressure, power dynamics and anxiety. Be sure to communicate clearly and ensure you are both are comfortable with what is happening.
Some people might fear that asking for consent ruins the mood. Wrong. Your partner will appreciate your honesty and integrity and the mood will be more positive when everyone is comfortable with each other.
Despite what we see in movies, consent is not something only women can give or withhold. Many males may also want to take it slow and get to know their partners better before escalating physical activity.
No matter what a person wears or if they are flirtatious, you cannot assume they are giving consent. Similarly, if someone is in a bar enjoying a few drinks, that does not imply anything about their willingness to “hook up.” Even if that person agrees to accept a ride home or to go back to someone’s house, they still have the right to refuse any unwanted physical contact. Sexual activity forced upon another without consent is sexual assault.
The past sexual activities of a person also cannot be considered relevant to the issue of consent. It doesn’t matter what a person has gone through in the past, they still have the right to refuse consent for any future activities.
Remember, sex should be a fun experience and both parties should always feel comfortable; it’s better for everyone that way.
Sexual assault and consent
A defendant can launch an innocence defence if they believe there was consent to sexual relations, called honest but mistaken belief in consent. For example, two people have a sexual encounter and the next day one of them claims they were raped. I have seen this happen.
To succeed with innocence defence, the defendant must be able to demonstrate they took reasonable steps in the circumstances to ascertain that consent was given, and why they came to believe the complainant was consenting. To state, “She didn’t say no” is not good enough.
Situations where consent cannot be given
Sexual activity is only legal when both partners consent. But there are some situations where there can be no consent given. Here are some examples:
- if threats or intimidation were used to coerce someone into something
- if the person is incapacitated by drugs or alcohol
- if the person wanting sex is in a position of authority or trust, such as a teacher or employer
- if one party changes their mind – earlier consent doesn’t count as consent later
- if you ignore their wishes or nonverbal cues to stop, like pushing away
- if consent was given for one sexual act, but not another
Consent can also not be given if someone is not awake. In a 2011 decision, the Supreme Court of Canada ruled that when a person falls asleep or is unconscious, any consent they have given for sex is withdrawn.
"If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent," the ruling stated. "Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.”
Anyone who is under the age of consent also cannot give consent. In Canada, the age of consent for sexual activity is 16, though there are some exceptions. A 14 or 15-year-old can consent to sexual activity with a partner that is less than five years older, as long as there is no relationship of trust, authority or dependency or any other exploitation of the young person.
Likewise, a 12 or 13-year-old can consent to sexual activity with a partner that is less than two years older, again if there is no relationship of trust, authority or dependency or any other exploitation of the young person.
Consent cannot be implied
Implied consent – where consent is not expressly granted by a person, but rather implicitly granted by a person's actions and the facts and circumstances of a particular situation, such as their silence or inaction – has not been a defence for sexual assault in Canada since a 1999 Supreme Court of Canada case.
It involved a 17-year-old girl who went for a job interview inside a van, with a door open. After the interview, the man closed the door and made sexual advances at her. Each time the girl told him “no” and he would stop, but then he would escalate his advances toward her. The man was charged with sexual assault, and at trial she testified that she did not take further actions because she feared what he might do to her.
The trial judge acquitted him on the defence of implied consent, with the provincial Court of Appeal upholding that acquittal.
That decision was overturned by the Supreme Court of Canada. It dismissed the concept of implied consent, stating: “In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence.”
The judgment goes on to read: “The question of implied consent should not have arisen … this error does not derive from the findings of fact but from mythical assumptions. It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.”
For victims of sexual assault, this judgment was a major victory.
The issue of sexual consent is complicated and ever-evolving in the #MeToo era. Feel free to contact me for legal advice on this complicated issue.