How do you define “Consent” and does it only apply to sexual assault cases?

Consent is defined as the voluntary agreement of the parties to have engaged in the sexual activity. It does not only apply to sexual assaults. A person who strikes another, thus normally committing an assault, can be found not guilty of the assault if the person who is assaulted consented to the fight. This can be done through words or gestures directed at the other person.

There are many situations when an individual cannot give their consent and they can be found in Sections 265(3) and 273.1 of the Criminal Code of Canada:

i. where there is an application of force on the person alleging the assault or another person to force the consent;

ii. threats made or fear there will be an application of force if consent is not given;

iii. if the person giving consent does so under fraudulent information (for example, if two people agree to have sexual intercourse after they tell one another that they have no sexually transmitted diseases despite one of them knowing that in fact he/she does have a sexually transmitted disease);

iv. if the person seeking consent is exercising their authority over the other individual (for example a boss forcing an employee to sleep with him/her or risk losing his/her job);

v. a person cannot consent to another person fighting (for example, I cannot consent to my friend fighting with another person);

vi. if the person who gave the consent is incapable of consenting to the activity (for example, if a person is intoxicated or mentally ill, that person may not be able to provide consent);

vii. if the accused induces the other person to engage in the activity by abusing a position of trust, power or authority;

viii. the person expresses, by words or conduct, a lack of agreement to engage in the activity;

ix. the person, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity (for example, a person who at one time consented to the sexual activity has the right to revoke that consent. At that point, there is no longer consent to engage in the activity);

or x. If the person is under 16 years of age, he/she cannot provide consent (though there is a close-in-age exception to this rule which means that someone who is 14 can have sex with someone who is less than five years older than him/her). A person can mistakenly believe that consent was provided even when no consent actually existed. The person must honestly believe, even though mistaken, that the sexual activity was consensual. This can be raised if it is established by the accused individual that the person alleging the assault communicated the consent through his/her words or gestures. This defence cannot be raised if the mistaken belief in consent arises out of self-induced intoxication (where the person accused of sexual assault freely drinks enough alcohol to become intoxicated), where he/she is reckless or willfully blind (for example, where an accused individual continues sexual conduct after the person alleged to have been assaulted indicated that he/she did not want to have (or continue) sexual contact), or where a person alleged of sexual assault does not take the necessary steps to determine that the person alleging the assault was consenting. Generally, the court will first ascertain the circumstances known to the accused individual at the time. The court will then look at what steps, if any, a reasonable person in the same circumstances, knowing the same things, would have taken before proceeding with sexual activity. In light of this assessment, the court will then look at the accused individual’s conduct to determine if there was an honest but mistaken belief that consent existed .