Experienced Criminal Lawyers

Honest But Mistaken Belief in Consent

Under Canadian law, sexual assault is an assault in which the victim’s sexual integrity is violated and involves touching that is non-consensual and sexual in nature. More importantly, non-consensual touching does not necessarily have to be done with sexual intent. Rather it could be intended to discipline or humiliate.

The lack of consent is a necessary element of such crimes, and it is up to the prosecutor to show that such consent was not obtained beyond a reasonable doubt. However, since consent is determined based on what the complainant believes at the time, should the trial judge determine that the complainant did not consent to be touched in the manner that it happened, the prosecutor will have successfully proved an absence of consent.

What Is Mistaken Belief in Consent?

In Canada, the law recognizes that people can have honest but mistaken beliefs about whether or not consent was given for sexual activity. This is called the defence of mistaken belief in consent.

To successfully use this defence, an accused must show that they honestly believed that the complainant consented to the sexual activity. They must also show that their belief was reasonable in the circumstances. This means that the accused must have considered all of the facts known to them at the time.

The mistaken belief in consent defence is available when an accused is charged with sexual assault, including rape. It is important to note that the mistaken belief in consent defence is not available if the accused knew or ought to have known that the complainant did not consent.

This defence relates to allegations of denial or lack of consent, even though they may have been interpreted by the accused as consent. This means that an accused cannot simply claim they thought the complainant was okay with what was happening, even if they were mistaken. There must be compelling reasons for the accused to believe that the complainant was actually consenting.

There must be proof of a state of ambiguity, which explains how the defendant may have honestly but mistakenly believed they had consent. The defendant cannot claim to have been willfully ignorant about whether the complainant was willing. They must also have given adequate attention to the necessity of consent.

The legal principles surrounding sexual assault, consent, and defences based on consent are complex, which is one reason why it’s critical for anyone facing a charge of sexual assault to obtain prompt and experienced legal counsel.

Here are some important pointers about consent:

1. Consent must be given at the time of the sexual activity.
2. Consent must be given during the entire duration of the sexual activity.
3. Consent may be revoked at any time.
4. Consent can neither be assumed nor implied.
5. There is no consent in law if the accused uses a position of trust, power, or authority to obtain consent.
6. If the complainant is unconscious, asleep, or intoxicated (under the influence of drugs or alcohol), then there is no consent in law.
7. Consent cannot be obtained by means of threat or coercion.
8. Consent can be shown by the complainant’s words or by certain favourable conduct, but it is not founded on the complainant’s silence or their simply not saying “no,” or just acquiescing to the touch.
9. A person cannot consent in advance of the sexual activity.
10. Retroactive consent is not consent in law.

Consent cannot be claimed when the alleged victim is under the age of 16, except  in extremely narrow circumstances. For instance, persons aged 12 or 13 can consent to sex with someone not more than two years older and who is not in a position of trust. Individuals aged 14 to 15 may consent to sex with someone less than five years their senior and not in a position of trust.

Why Hire Counsel if Charged with a Sexual Offence?

Sexual offences are considered very serious crimes in Canada. If you are charged with a sexual offence, you could be looking at a long jail sentence and other harsh penalties, including mandatory registration as a sex offender. Since the consequences of a conviction can be severe, obtaining prompt legal advice is crucial if you are accused of or charged with a sexual offence.

An experienced sexual assault lawyer can help you navigate the criminal justice system and protect your rights. A lawyer can provide advice on the best way to defend against the charges and also represent you in court.

If you are looking for counsel from an experienced sexual assault lawyer in Calgary, consult Ross Lutz Barristers / Alberta Legal. Click here to get in touch with us or call
(587) 602 – 5787.