Alcohol and Consent in Sexual Assault
Several recent decisions highlight the hot-button issue of alcohol and consent in cases of sexual assault. Consent can be a touchy subject. Parties often dispute whether or not consent was given, especially when alcohol is involved.
What is Consent
Consent may seem like a question that is easily answered – either a person says “yes” or they say “no”. The reality is not always so simple.
Consent is not the default. It must be clearly given for each sexual encounter and for every sexual act. In order to give consent, the person giving it must have an operating mind and be old enough to agree to sexual contact. Consent can be withdrawn at any time. It can be limited to some sexual acts and not others.
Consent involves a person’s state of mind. In the context of a sexual assault, it means the voluntary agreement of the complainant to engage in the sexual activity in question. Whether what occurred was lawful depends on whether both parties voluntarily agreed to the activity. If agreement isn’t really voluntary, it’s not consent. Actual active consent must be given through every phase of sexual activity.
The question is not just what was said, but did the complainant want the accused to do what they did when it was done?
What is not Consent
To understand what something is, it often helps to understand what it is not. Consent is often best understood by its opposite.
If someone is not capable of agreeing, any sexual activity is not consensual. To give consent, a person must be able to consciously evaluate what they are agreeing to. Any time that a person is unable to consciously evaluate a situation, any sexual activity is not consensual within the meaning of the Criminal Code.
This means that a person must not be so impaired by alcohol – or other drugs – that they are not able to consciously confirm their willingness for sexual contact. For the same reason, an unconscious person can’t give consent. Even if they expressed consent while they were conscious, that consent stops when they lose consciousness and sexual contact must stop.
In other words, the parties must be capable of active consent throughout every phase of sexual activity. This is because consent can be withdrawn at any time. It doesn’t matter if the sexual activity began consensually, either party always has the right to stop.
To clarify, the criminal code provides that no consent is given where…
- Consent is expressed by someone other than the complainant. Only you can give consent for you. Only the other party can give consent for him or herself;
- The complainant is incapable of consenting to the activity;
- One person abuses a position of authority to induce the other person to engage in sexual activity;
- The complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
- The complainant, after giving consent, expresses by words or conduct a lack of agreement to continue to engage in the activity.
If you’ve been charged with Sexual Assault
In cases where sexual assault is alleged, consent may be the difference between a conviction and an acquittal – between consensual sex and sexual assault. When alcohol, or other impairing substances are involved, what seems like consent may not be consent at all.
Proving or defending against a charge of sexual assault can be complex. Each case is unique and will be guided by its own specific facts.
At EBS, we understand that sexual assault is a serious and sensitive matter. If you, or a loved one, are facing a charge of sexual assault, our lawyers stand ready to assist you in navigating the issues involved.
Simply contact our office to request a consultation with a member of our criminal law team. Together, we will discuss your options.
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