Sexual Assault: Consent Primer
Sexual Assault: Consent Primer
The trial of the five Canadian Junior Hockey Players is, not surprisingly, attracting a lot of attention. Michael McLeod, Carter Hart, Alex Formenton, Callan Foote and former Calgary Flame forward, Dillon Dube are just in the early stages of a sexual assault trial reportedly scheduled for 8 weeks. While that trial is progressing into its second week, another Canadian Junior hockey player has been sentenced to two-years less a day in jail for sexually assaulting a 15-year old girl. It is reported that Noah Corson – the son of former NHLer Shane Corson – intends to appeal the trial verdict. In Mr. Corson’s case, the trial judge found that the accused failed to take all reasonable steps to confirm the age of the 15-year old complainant.
The purpose of this post is not really to comment on the cases currently progressing through the courts. Rather, the objective is to provide a brief outline of the law with respect to sexual assault, consent, honest but mistaken belief in consent and the age of consent. It is the opinion of this Calgary criminal lawyer that it is important for all Canadians to understand these legal principles so that that cases such as those faced by the aforementioned Junior Hockey players can be avoided.
SEXUAL ASSAULT
I will begin with a by no means comprehensive overview of the law with respect to sexual assault.
Section 265(1)(a) of the Criminal Code of Canada defines “assault” as any non-consensual force – direct or indirect -- applied intentionally to a person. It is important to recognize that assault does not require the Crown to prove degree of force.
Section 265(1)(b) of the Criminal Code extends assault to circumstances where a person “…attempts or threatens, by act or a gesture, to apply force to another person”, so long as that other person believes on reasonable grounds that there is a present ability to effect the purpose. Section 265(1)(c) further extends assault to include situations where a person, while openly wearing or carrying a weapon or imitation thereof, accosts or impedes the other person. Section 265(2) specifically stipulates that s. 265(1) applies to all forms of assault, including sexual assault (see s. 150.1(1) of the Code).
What transitions a common assault under s. 266 of the Criminal Code to sexual assault contrary to s. 271 of the Criminal Code is that the assault was committed for a “sexual purpose”. Proof of “sexual purpose” requires the trier of fact in a criminal trial to objectively assess a variety of factors, including but not limited to the nature of the alleged sexual touching, the body part touched and the circumstances surrounding the allegation of sexual assault.
CONSENT, HONEST BUT MISTAKEN BELIEF AND AGE OF CONSENT
Section 273.1(1) acknowledges that parties can “consent” to sexual activity. For the purpose of this post, while I may use the phrases "honest but mistaken belief in consent" and "honest but mistaken belief in communicated consent" interchangeably, the correct language is always "honest but mistaken belief in communicated consent".
"Consent" to sexual activity activity means that the complainant actually voluntarily agreed to the activity in question.
Consent is only obtained if it exists or is present at the time the sexual activity takes place (see s. 273.1(1.1). The complainant must also be of the “age of consent”. A person who is not of the age of consent, cannot consent to sexual activity.
In Canada, the age of consent is 16 years of age; meaning that with a few exceptions, a person under the age of 16 cannot consent to sexual activity.
The Criminal Code has carved out a few exceptions to the age of consent. Specifically, consent can apply to persons who are at least 12 years of age but under 14 years of age so long as the accused is less than two-years older than the complainant and is not in a position of trust or authority. Consent can also apply to persons who are at least 14 years of age but under 16 years of age so long as the accused is less than 5 years older than the complainant and not in a position of trust or authority. By way of example, a 12-year old can consent to sexual activity with a 14 year old and a 14 year old can consent to sexual activity with an 18 year old; however a 12 year old cannot consent with a person who is 15 years old and a person who is 14 cannot consent with a person who is 20 years old. Age must be precisely calculated. For instance, a person who is 14 1/2 years of age (under 16) can consent with a person who is not older than 19 1/2 years old.
It is a defence to a charge of sexual assault for the accused to assert that he or she had an “honest but mistaken belief in communicated consent” or in the case of a minor – where age of consent is a live issue -- an honest but mistaken belief in the age of consent. “Honest but mistaken belief” is a mistake of fact defence.
In order to advance honest but mistaken belief in communicated consent requires more than mere subjective belief; it must be honestly held and supported objectively by evidence that the accused took all reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. Similarly, for mistake of fact to apply to the age of the complainant, there must be evidence that the accused took all reasonable steps to ascertain that the complainant was of the age of consent. An example of evidence to support honest but mistaken belief in communicated consent includes statements made by the complainant confirming voluntary agreement to the sexual activity and/or conduct that could be reasonably interpreted by the accused as agreement to participate in the sexual activity. For the purpose of age of consent, the court will look a variety of factors including the appearance of the complainant, statements made by the complainant and other steps taken by the accused, such as viewing identification.
For example, where the case of Noah Corson (mentioned above) is reported as an age of consent issue, it appears that the live issue with respect to Dube, Formenton, Foote, McLeod and Hart circles around the timing of consent, issues of the withdrawal of consent and whether consent was actually given. "Withdrawal of consent" occurs in circumstances where the complainant initially voluntarily agrees to the sexual activity, but later withdraws it. Simply stated, while a person might consent at first instance, they can still change their mind. When this occurs, their intimate partner must honour the withdrawal of consent.
It is important to note that honest but mistaken belief in communicated consent does not apply if the accused’s belief arose from his or her own self-induced intoxication, recklessness (proceeding in the face of danger), wilful blindness (turning a blind eye to what is known), by application of force, fraud or threats. Also, honest but mistaken belief in consent is vitiated where there is no evidence that the complainant’s voluntary agreement to the sexual activity was affirmatively expressed by words or by conduct.
Importantly, while people can consent to sexual activity after having consumed intoxicants (such as alcohol or marijuana), if a partner is so intoxicated such that he or she cannot consent, that can trigger a criminal law response.
In order for honest but mistaken belief in communicated consent to be considered by a judge or jury, there must be an air of reality to the defence. “Air of reality” is a low threshold test for the consideration of a defence.
Air of reality requires that there be at least some evidence, upon which a reasonable jury, properly instructed, could acquit. Where there is no evidence that the complainant voluntarily consented, then there is no “air of reality” to the defence of honest but mistaken belief and thus the defence will not be open for consideration by the trier of fact.
CHALLENGES WITH SEXUAL ASSAULT CASES
Sexual assault cases are challenging. By their very nature, these prosecutions are often emotionally charged and usually require parties to report intimate information that may be personally embarrassing, even humiliating. To be fair, while embarrassment and humiliation are adjectives easily connected to complainants, they can also apply to the accused.
Judges and juries are often forced to consider difficult situations where they have to seriously scrutinize whether the complainant actually consented or whether the accused’s honest but mistaken belief in communicated consent is sufficient to raise reasonable doubt. Public outcry in sexual assault cases is often loud – to the point where interest groups – even ordinary citizens – are prepared to vilify the accused and criticize the justice system, even in cases where reasonable doubt exists. It is this criminal lawyer's opinion that we should be very cautious with the views of those who are prepared to accept risk that innocent people be convicted.
It is important to remember that the prosecution must be prove its case beyond a reasonable doubt and that the defence need only raise reasonable doubt. Simply stated, just because there is a charge does not make the accused guilty, and just because there is reasonable doubt and a verdict of “not guilty”, does make the accused truly innocent. Unfortunately, our criminal justice system has limitations.
While there may be a tendency to simply believe alleged victims and to decry the accused, it is very important to keep in mind that innocent people are wrongfully convicted in our criminal justice system. While some prefer to put their head in the sand regarding the spectre of wrongful conviction, the truth is, wrongful convictions do occur.
It is for this reason, that while the trial of the Junior Hockey players is ongoing, we should reserve judgment and let the evidence do the talking. Interestingly, one can see from the various news reports that the defence of consent appears to be clearly at issue.
Whatever the outcome of the Canadian Junior Hockey Player's case , I suspect that like Mr. Corson, that trial is unlikely to be the end of the matter. One thing is certain: many lives (including that of the complainant) will never be the same.
Conclusion
I think a lesson from these Hockey Canada cases is that it’s important for all of us to routinely remind ourselves about the importance of respecting each other. As far as sexual activity is concerned, it is also important to never take your partner’s consent for granted.
Sexual assault is a hot button topic in criminal justice.
Our Supreme Court of Canada has made a number of controversial decisions. For instance, while I’m sure all of us agree that consent can be vitiated in circumstances where a partner fails to disclose their HIV status, the Supreme Court also polemically ruled that spouses cannot agree to sexual activity in advance – for example, to be sexually roused from sleep by an amorous partner (see R. v. J.A., 2011 SCC 28). This defence lawyer has serious concerns about the practicality and wisdom of that latter case. Regardless, my views on the subject don't matter.
Whether we agree with the reasoning of our Supreme Court or not, is of no consequence – they are the nine justices responsible for interpreting the law that we must follow. For better or worse, when it comes to sexual assault prosecutions (and appeals), they are decided by persons with unique views about sex who have their own collection of experiences.
In the opinion of this Calgary criminal lawyer, the best advice is better to be safe than sorry.
For what it’s worth. These are my thoughts, not yours.
David Chow
Calgary Criminal Defence Lawyer
There are many Calgary criminal lawyers to choose from. A conviction for sexual assault can have devastating consequences. Major sexual assault (involving penetration) carries a minimum punishment of 3 years incarceration along with an entry on a sexual offender registry. When charged with sexual assault or a related offence (such as sexual interference) it is advisable to retain the services of a qualified and highly experienced criminal defence lawyer who practices in Alberta.