1

Are there any Jurisdictions around the world that allow for consent to be after the fact ? or is there defences that allow for consent obtained after an act to be a defence (as in the accuser or victim clearly being permissive or even indulgive in an act)

8
  • 2
    Consent to what?
    – bdb484
    Mar 29 at 0:48
  • 1
    I assume something sexual or something medical
    – swarahan
    Mar 29 at 1:06
  • 1
    How do you even know there was no consent at the time? The only real source for this claim would be the victim. And you said the victim said they consented. Or did you mean the victim was unable to consent (to drunk, drugged, unconscious) and consent could not have been obtained at the time?
    – nvoigt
    Mar 29 at 10:41
  • 1
    In practice, if the victim doesn't want to help the prosecution by stating that they did not consent, then the prosecution is probably not going to go forward anyway, regardless of whether a crime was committed or not.
    – Stef
    Mar 29 at 12:34
  • 1
    @MichaelHall Oops, yes, my phrasing was terrible. I meant "if the victim refuses to state that they did not consent".
    – Stef
    Mar 30 at 8:17

2 Answers 2

10

Where consent is required for some act to be lawful, the consent is required before or at the time of the act.

Typically, consent does not need to be express, but can be implied by conduct.

It's unclear what "consent after the fact" means. Presumably it means someone has acquiesced to a prior use of force. Certainly that can happen, although it does not make an unlawful act retrospectively lawful.

To illustrate the difference, a boxer consents to a certain amount of beating in the sports ring. Whereas a victim of a criminal beating may not have consented, but later may nevertheless acquiesce to the beating they received.

As an aside, there is a discrepancy between the concept of consent as being like a bureaucratic decision which is announced and recorded, and the reality of how humans make decisions which often does not involve a sudden conclusion or a sharp transition between a pending and settled state, and might involve internal conflict before there is a clear outward indication of how the person is minded, or inconsistency across time in how a person expresses their mind.

How humans react to uncertainty is typically by suspending judgment about events until more information emerges. For example, people often do not react harshly to an insulting remark, until they are sure that it was intended to be insulting by the person who made the remark, and that it was unwarranted.

This suspension of judgment during uncertainty, conflicts with laws that expect a firm state of mind to exist and a decision to be made quickly about the consent to an impending act.

With human recollection, earlier events can also be reinterpreted through the prism of information that arises later. Keeping careful account of when various pieces of information arrived in their knowledge, or how they previously felt about a scenario based only on what they knew at an earlier time (as distinct from reasoning about how they would now feel about a past scenario with their current knowledge), is a cognitive skill which people possess to a very variable degree.

This natural human tendency to reinterpret past events (and mistaken earlier judgments) based on later information, also does not sit easily with legal theories around consent.

0
1

This is not possible in Canada. Consent must be subjective and contemporaneous with the impugned act. See Criminal Code, s. 265 and especially s. 273.1(1.1): "Consent must be present at the time the sexual activity in question takes place." See also R. v. McKnight, 2022 ABCA 251 at para 261 (consent must be contemporaneous).

To be clear, in the context of sexual assault, indifference of the complainant1 is not consent of the complainant:

For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place"

R. v. Barton, 2019 SCC 33.

See also R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras. 26-30:

26 The absence of consent ... is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred...

27 ... for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.

...

29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

I have explained in another answer the relationship between the actus reus and mens rea of sexual assault and the defence known as "honest but mistaken belief in communicated consent," so I will not repeat that here.


1. "Complainant" in the Criminal Code is defined merely to be "the victim of an alleged offence."

0

Not the answer you're looking for? Browse other questions tagged .