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How Consent Is Related to Assault Criminal Offences

The Criminal Code of Canada includes in the definition of all assault criminal offences the use of force or the threat of force, without the consent of the victim. This key element must be present in order to file charges against someone for an assault, whether it is normal assault offences, domestic assault offences, or sexual assault offences.

What Is Consent?

Consent is where one person agrees to or gives their permission to do something or to have something happen to them. In other words, consent is voluntarily agreeing to engage in an activity by affirming yes to the particular activity.

For instance, if you and another person engage in rough-housing, where there is physical contact and both people have mutually agreed to this activity, and someone accidently gets hurt, this is not considered assault, since both parties consented to and understood there was a risk of injury. On the other hand, if the other person flat out tells you no or to stop, yet you continue to engage in the activity and they get hurt, there might be grounds for an assault charge, should the other person file a complaint with the police.

Does Consent Have to Be Verbally Given?

Consent does not always have to be given verbally. A simple nod in agreement, or other nonverbal response indicating agreement could signify consent. Just like there are ways to nonverbally communicate consent, there are also nonverbal ways to deny or decline consent. Pulling or pushing away from the other person, remaining silent, shaking your head no, or even crying could indicate consent is not given. If you are ever in any doubt as to whether consent has been given or not, it is best to verbally ask the other person and get an actual confirmation of their agreement.

Can Consent Be Implied?

In some cases, where an assault offence has been filed against someone, their defence to the charges was that they thought consent was implied. One reason they believe consent was implied is based upon the other person’s previous consent when the activity was committed in the past. However, consent is not ongoing and just because one person consented in the past, does not imply they are giving consent now. Consent can be given and taken away freely, at any time.

For instance, you go out on a date with someone, go back to their place and they verbally agree to have sex with you. Then, a few days later, you go out again, end up back at their place, and they brush off your sexual advances or even verbally tell you they do not want sex. If you persist and force them to have sex with you, you have committed sexual assault, since consent was not given. Just because the other person consented to having sex with you in the past, does not mean they are going to consent to have sex with your again now, or in the future.

The above information is provided for informational purposes only and should not be considered actual legal advice. If you or someone you know has been charged with an assault criminal offence, you need to retain the services of an experienced criminal defence lawyer in Toronto, like Jeff Hershberg. Call 416-428-7360 now for a free case evaluation and to obtain actual legal advice.