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In Canada,

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.

(R. v. Barton, 2019 SCC 33, at para. 107)

What is the corresponding regime in England?

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No.

Sections 1 to 4 of the Sexual Offences Act 2003 set out the offences of rape (s1), assault by penetration (s2), sexual assault (s3), and causing a person to engage in sexual activity (s4).

These require the prosecution to prove that the complainant did not consent and that the defendant did not reasonably believe that the complainant consented.

Section 74 defines consent:

... a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Each of sections 1 to 4 state that,

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [defendant] A has taken to ascertain whether [complainant] B consents.

The police/prosecutor will ask what steps (if any) the suspect/defendant took to obtain the complainant's consent.

In the case of ambiguity: "I believed the complaint consented because their behaviour was unclear and open to interpretation."

In the case of passivity: "I believed the complainant consented because they did nothing."

Neither case supports the belief that the complainant consented.

In a way, ambiguity seems particularly damning.

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  • It seems that as per s74, consent is an internal mental state of agreement, which can arguably be reasonably surmised/believed from past rapport and relational character/ habits. And need not be expressly solicited or communicated in each individual episode. So how then is that “no”?
    – Seeking answers
    Oct 26 at 13:43
  • "Whether a belief [in consent] is reasonable is to be determined having regard to all the circumstances..."
    – Lag
    Oct 26 at 13:57
  • so again, but then a fortiori, how does that make the answer such a bluntly unqualified “no”?
    – Seeking answers
    Oct 26 at 14:15
  • Can you elaborate as to what directly, “no” is an answer to?
    – Seeking answers
    Oct 26 at 14:16
  • 1
    @Seekinganswers if the authorities take the complaint seriously, the accused won't help themself by saying "I thought the complaint consented because their behaviour was unclear and open to interpretation" (ambiguity) or "I thought the complainant consented because they lay there doing nothing" (passivity).
    – Lag
    Oct 29 at 8:45
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Consent must be given

The accused must know that they have been given consent (s61HK Crimes Act 1900). Ambiguous or passive conduct does not impart that knowledge to the accused.

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  • How can a state of mind be given to another? I would think that only indications or expressions of one’s mental state could be so given. Does consent in NSW unlike in Canada then rather denote the express communication of this state of mind to another?
    – Seeking answers
    Oct 27 at 18:50
  • @Seekinganswers you said “I think …” thus communicating your state of mind. That’s one way. If you warm to my touch and kiss me, that’s another way.
    – Dale M ♦
    Oct 27 at 21:34
  • don’t get your hopes up for that though.
    – Seeking answers
    Oct 27 at 22:17
  • @Seekinganswers and I respect the lack of consent you just communicated
    – Dale M ♦
    Oct 27 at 23:12
  • It would seem hard not to across the internet, but nevertheless, it was 1) more of an expression of a very non-definite lack of interest or enthusiasm rather than a clear but denial of consent and, depending on tone and context could just as easily be sarcastic or reverse psychology flirtation. And 2) communicated about, and not “given”, to you. I didn’t transfer the mental state of lacking consent to you, I informed you of my own state of lacking consent. I gave you an indication of my sentiments, I didn’t “give” to you my sentiments.
    – Seeking answers
    Oct 28 at 2:43

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