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I just came across this news (based on E v R [2023] NZHC 2829).

To summarise:

  1. A 24-year-old woman happily goes to sleep in one bed with her stepfather and her mother (stepfather's partner).
  2. During the night, the man awakens the woman (who was lying asleep next to him), pushes her underwear aside, inserts his instrument, goes for less than a minute (all without any objections), pulls out without being asked to, and goes back to sleep.
  3. When the police arrives (unclear who called them and when), the man admits rape because "he knew she could not consent".

The woman is said to be "vulnerable". There is no mention why exactly. Maybe she is disabled, mentally impaired etc. We don't know.

Now, let's imagine a hypothetical scenario like the above, but where the woman is known to be healthy and in full legal capacity.

Two related questions:

  1. Would she not be able to consent to sex in those circumstances? If not, why?
  2. If she was able, does her behaviour (i.e. voluntarily sharing bed and lack of objections to what the man was doing while she was awake) constitute consent from the point of view of a reasonable person?
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    #2 is a clear "no" to me. I don't see why sharing a bed equals consent to sex, since sleep is not related to sex. Also, immediately after one is awakened, it takes a while to become fully awake and able to make informed decisions.
    – Allure
    Oct 25, 2023 at 8:05

3 Answers 3

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Factual correction

First, a correction to the facts. At paragraph 6 of the appeal reasons, it says:

When spoken to by police the appellant expressed shame and remorse, acknowledging that the act had occurred when the victim was asleep and in circumstances where he knew she could not consent.

And the factual summary of the offence says that:

During the night the appellant awoke to the victim asleep next to him

So, you may have misunderstood the facts of the real-world scenario. But since your question is based on a hypothetical, I will go on to answer it.

Capacity to consent

To have the capacity to consent, a complainant must understand the following (R. v. G.F., 2021 SCC 20):

  1. the physical act;

  2. that the act is sexual in nature;

  3. the specific identity of the complainant’s partner or partners; and

  4. that they have the choice to refuse to participate in the sexual activity.

Without understanding those four things, a complainant cannot consent.

The Criminal Code also lists several circumstances in which consent is deemed to not be present (s. 273.1(2)(b)), one of which is when the complainant is unconscious; another is when the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.

Actual consent and mistaken belief in communicated consent

You also ask whether "voluntarily sharing bed and lack of objections to what the man was doing while she was awake... constitute consent from the point of view of a reasonable person."

That is not a relevant question in Canadian law. Consent is not based on the view of a reasonable person. Consent for the purpose of sexual assault is only the subjective consent by the complainant. "For the purposes of the actus reus 'consent' means that the complainant in her mind wanted the sexual touching to take place" (R. v. Ewanchuk, [1999] 1 SCR 330). There is no such thing as "implied consent" in Canadian law.

There is a defence or "mistaken belief in communicated consent" however. This is available when the defendant: (1) has taken reasonable steps to ascertain consent; and, (2) has the honest belief that the complainant actually communicated consent.

It is highly doubtful that the steps taken in your hypothetical would be reasonable steps to ascertain consent in Canada. See R. v. Barton, 2019 SCC 33, para. 107:

an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law ... an accused’s attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainant.

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A 24 year old woman cannot legally consent to sex temporarily if she is drunk, under the influence of drugs, asleep, being threatened to force consent, just woken up and not aware of her surroundings, being hypnotised, and probably many other reasons. It would be permanent if she is not of sound mind and probably other reasons.

You don't state the jurisdiction. It is quite possible that in some jurisdiction it is not possible for a woman to legally consent to having sex with a close relative, including a step father, or a person in power, and other situations.

But that is just one question. The other is: Did she actually give consent? In the situation described it seems clear that she didn't. And that is the primary thing: First, consent (in the layman's interpretation) must be given. And then, as the second step, you need to decide if that consent was legal. And no objection doesn't mean consent.

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Consent

Consent laws were clarified on 1 June 2022.

Consent must be free and voluntary and given every time, for the full duration, and for each sexual act (consent to one type of sex is not consent to any other type of sex). One person cannot consent on behalf of another.

A person must say or do something to communicate consent. Consent can be communicated by words or gestures.

A person is incapable of consent if they are:

  • Unconscious
  • Asleep
  • So affected by drugs or alcohol that they cannot consent
  • is in fear of force against themself or others, intimidated, or coerced
  • is tricked into consent
  • incapable due to cognitive impairment

To succeed in a prosecution, the Crown must prove that there was no consent and the accused knew there was no consent. The accused knows if:

  • They actually know
  • They were reckless regarding consent
  • Any belief they had in consent was not reasonable in the circumstances

There are prohibitions on incest but these require a blood rather than a step relation.

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  • Just knew or knew or should have known? The reckless part implies the latter, but the wording of the law might be the former.
    – Trish
    Oct 26, 2023 at 8:42
  • @Trish I don’t understand the distinction - they’re engaging in sexual contact, they have to know they have consent i.e. their state of mind has to include that consent has been and is still being given. If they don’t have that state of mind, it’s a sex crime. Even if they do, and they recklessly or unreasonably arrived at that state of mind, they’re still guilty.
    – Dale M
    Oct 26, 2023 at 10:15

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