What is consent?

Consent in criminal law is simply the notion that you have permission to do something that would otherwise be illegal. Section 265(3) of the Criminal Code, in defining assault, further refines the definition of consent by giving scenarios where consent is vitiated, specifically, when the complainant does not resist because of:

  • The application of force;
  • Threats to apply force to someone else;
  • Fraud; and/or
  • The exercise of authority

In sexual assault cases, consent must be express (that is, clear) and contemporaneous (said at the same time as the sexual activity). In addition to this, consent is invalid for sexual assault cases when:

In common assault cases, consent is invalidated when serious bodily harm occurs.

What is implied consent?

Implied consent is the notion that a complainant has consented to touching without it being expressly stated. The implied consent doctrine exists because courts do not want to over-criminalize touching that occurs in everyday life. For example, the implied consent doctrine would apply in a scenario where you would tap someone’s shoulder on a bus so they make way for you to exit. For an implied consent defence to work, the following conditions must be met:

  • The scenario involved common assault, not sexual assault;
  • The scenario did not cause serious bodily harm; and
  • The scenario is related to a legitimate public policy goal.
    • This is the key element of the implied consent defence. In one case, the judge noted that implied consent exists when touching an infant, given that the purpose of touching the child is related to caring for him or her. Likewise, if the purpose for touching the child veers from the purpose of caring for him or her, implied consent vanishes as well.
    • On the other hand, a police officer who is on duty and conducting an investigation does not give implied consent to being touched by others while on the job.
    • In the context of playing an aggressive sport (like hockey), implied consent can be invalidated if the bodily contact is deliberately and unnecessarily violent and beyond what participants of the game should expect. In other words, by agreeing to play a sport that involves some physical force, you do not automatically agree to all types of force against you.

What is the defence of honest but mistaken belief in consent?

The defence of implied consent cannot be used in sexual assault cases. However, it is possible to raise the defence of honest but mistaken belief in consent. To raise this defence, you must prove the following elements:

  • That the accused believed the complainant was consenting.
    • This type of evidence includes testimony from the accused about the events that led to the sexual activity. The testimony must be more than a mere assertion that he or she believed the complainant consented.
  • That the accused was not wilfully blind to the fact that the complainant refused consent.
    • This will oftentimes require that the accused explain all the reasonable steps he/she took to verify that consent was given.
  • A state of ambiguity which explains how the accused honestly believed that there was consent.

How can our firm help?

Lakin Afolabi Law is a multilingual and empathetic criminal defence firm. We are experts in the law of sexual assault and have been successfully defending sexual offence cases for over a decade. We know the seriousness of being charged with a crime and will actively work with you to get you a favourable outcome. At our firm, you play an active role in your defence when it comes to helping us clarify your goals and hearing your side of the events. We know the law and you know the facts. If you have been charged with a crime, speak to us today to see how we can help.