2

When is consent to touch another person necessary and what constitutes consent? This question focuses on intimate, romantic or sexual relationships between two adults. At school they have been pushing the Consent is Sexy motto and I was wondering what exact words need to be used and what situations they apply to?

Obviously no means no and rape is rape. But I've heard of situations where after the fact the female claims she was exploited without consent and the male claims he didn't intend to. For example does a husband literally need to say the words "do you want to have sex?" to his wife and if she doesn't reply "yes" it's technically illegal?

Does context matter? E.g. is running up to a stranger and kissing them illegal but kissing your partner isn't without consent?

A made up example: I met a girl on a dating website and she later complained I didn't get consent to hold her hand but she never said not to or resisted. I also kissed her and she kissed me back and later complained I didn't get consent.

3

The Criminal Code says:

  1. (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly

Touching is applying force, even if it is slight. The law also says (same section) that apparent consent evidenced by submission isn't actually consent:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

This pretty much means that consent is always required. If you are wrong about there having been consent and you end up being charged, you can explain why you thought there was consent, and the judge may find the story sufficiently plausible that you can use that as a defence, because:

4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

Here is a model jury instruction pertaining to consent

Third – Did (NOC) consent to the force that (NOA) applied? To decide whether (NOC) consented to the physical contact, you must consider (NOC)’s state of mind. Consider all the evidence, including the circumstances surrounding (NOA)’s physical contact with (NOC), to decide whether (NOC) consented to it. Take into account any words or gestures, whether by (NOA) or (NOC), and any other indication of (NOC)’s state of mind at the time. Just because (NOC) submitted or did not resist does not mean that (NOC) consented to what (NOA) did. Consent requires (NOC)’s voluntary agreement, without the influence of force, threats, fear, fraud or abuse of authority, to let the physical contact occur.

The instruction pertaining to the "honest but mistaken belief in consent" defence goes like this:

(NOA)’s position is that s/he was unaware that (NOC) did not consent. In fact, it is his/her position that s/he honestly believed that (NOC) consented to the physical contact in question. A belief is a state of mind, in this case, (NOA)’s state of mind. To determine whether (NOA) honestly believed that (NOC) consented to the physical contact in question, you should consider all the circumstances surrounding that activity. Take into account any words or gestures, whether by (NOA) or (NOC), and any other indication of (NOA)’s state of mind at the time. (NOA)’s belief that (NOC) consented to the physical contact must be an honest belief, but it does not have to be reasonable. However, you must consider whether there were reasonable grounds for (NOA)’s belief; the presence or absence of reasonable grounds may help you decide whether (NOA)’s belief was honest. Look at all the circumstances in deciding this issue. Do not focus on only one and ignore the rest. You must consider all the evidence, including anything said or done in the circumstances. Use common sense. (NOA) does not have to prove that s/he honestly believed that (NOC) consented to the physical contact. Rather, the Crown must prove beyond a reasonable doubt that (NOA) had no such belief.

In other words, if the story is believable, the jury might believe it. Asking for each and every kind of contact can be annoying and a little silly, but if you might be at risk, better silly than sorry.

  • 1
    If consent is always required for any physical touch, then what exactly is consent and can it be implied? For example can you sue someone for shaking your hand because you didn't verbally say "want to shake hands?" – Mahones Oct 19 '16 at 4:27
  • 1
    Also what about sports? When people play football they don't ask each other "is it ok for me to tackle you" so is it implied with the activity? – Mahones Oct 19 '16 at 4:28
  • @Mahones WRT handshakes, one typically holds out a hand for the other to grasp. It's hard to imagine how one party could later deny consent. If the person who didn't initiate the handshake doesn't want to participate, he or she can simply refrain from accepting the offered handshake. – phoog Oct 19 '16 at 4:38
  • Much of consent is implied by activities. By playing football, you agree (by your actions) to be touched. Verbal consent is not required, what is required is an action that a reasonable person would understand to be consent. Holding your hand out and at the moment of contact shrieking "Assault! I didn't verbally consent to being touched!" will not persuade a reasonable jury. – user6726 Oct 19 '16 at 5:08
  • "Holding your hand out and at the moment of contact shrieking "Assault! I didn't verbally consent to being touched!" will not persuade a reasonable jury": but will it sway the referee? – phoog Oct 19 '16 at 14:58

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.