In Canada and perhaps other jurisdictions, an available defence for sexual assault accusations is that the defendant can show that they had taken reasonable steps to ascertain the complainants state of consent, and had come away from that exercise with a reasonable belief that it was affirmative.
What are examples of such steps, and what is required for such steps to be deemed “reasonable”?
Some corrections to the premise.
First, the defence of "honest but mistaken belief in communicated consent" does not require, after having taken reasonable steps to ascertain consent, that the ultimate belief be reasonable, only that it be honest. See Sansregret v. The Queen, [1985] 1 S.C.R. 570; Pappajohn v. The Queen, [1980] 2 S.C.R. 120. Of course, if a jury thinks that the alleged belief in consent is unreasonable "that may be one factor leading them to conclude that it was not really held" (Pappajohn).
Second, an honest belief in consent is not enough; it must be an honest belief "that the complainant actually communicated consent" (Barton, para. 91).
Onto reasonable steps though. Reasonable steps are a precondition to even being able to argue the above — "no reasonable steps, no defence." The Supreme Court of Canada has explained (R. v. Barton, 2019 SCC 33, internal citations removed):
[106] ... the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.
[107] That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, 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. Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step. Accordingly, 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 complainants.
[108] It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.
[109] Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do.
When translated into jury instructions, the question looks like this (from the National Judicial Institute's Model Jury Instructions):
In order to determine whether [the accused] took reasonable steps, first determine what were the circumstances known to [the accused]. Then ask yourselves whether a reasonable person with that knowledge would make further inquiries to ensure [the complainant] was consenting. If the answer is yes, ask whether [the accused] made those inquiries. If s/he did not, then s/he cannot claim s/he honestly believed [the complainant] had communicated his/her consent.
