Misconceptions Surrounding The Law Of Consent

October 13, 2022


Are you facing sexual assault allegations from someone you least expected?

This kind of scenario is quite apparent in the current era. In a world with rising sexual harassment coupled with the concurrent demand for sexual freedom, a clash between widespread beliefs, stereotyped opinions, and what is legally right is inevitable. Accordingly, one of the most misunderstood and perhaps debated legal concepts is the law of consent surrounding all relationships of a sexual nature.

In a civilized society like Canada, which is strictly regulated with stringent laws to not only protect but uphold every individual’s rights, the punishment for any kind of infringement is quite severe. In this regard, offences of a sexual nature are treated very seriously. The Criminal Code of Canada not only sets clear and concise rules regarding what is acceptable as consent but also puts forth rigorous punishments for those who fail to obtain consent.

Sadly, people still fail to properly comprehend the concept and unintentionally land themselves in unpleasant situations with the judicial system. If you ever face sexual assault charges, seek legal counsel and defence services from a reputed sexual assault defence lawyer in Edmonton.

Read Also: Qualities That Denote The Best Criminal Defence Lawyer In Edmonton

To help you better understand the law of consent, Daryl Royer presents the widespread misconceptions about the matter in this blog post and the truth behind them.

Silence Is A ‘Yes’

This is perhaps the most common misconception about consent. You should never take your partner’s silence as consent because this perception usually backfires. In accordance with Section 273.1 (1) of the Code, consent is the voluntary agreement to participate in any sexual act . Thus, in Canadian law, silence is not considered consent. The person must explicitly show their willingness (as discussed in the next section).

Similarly, you cannot use the victim’s silence as a defence for your actions. According to the Code, it is the accused’s duty to take reasonable steps to ascertain that the complainant is consenting (Section 273.2).

Implied Consent Is legally Recognised

An extension to the above misconception is the confusion between Canadian and US laws. In Canada, the doctrine of implied consent is not legally accepted. Although if consent is expressed through encouraging actions, it is accepted as valid. Nonetheless, the term ‘implied consent’ does not hold legal value in Canada.

Thus, you must be alert to any signs of discomfort from your partner and back off if the situation is unclear. Implicit consent is only acceptable if the complainant’s actions were clear beyond doubt. For instance, if the complainant did not express consent in words but willingly made advances, gestured to the accused to touch them in a sexual manner.

Consent Is Not Important Between Spouses And Intimate Partners

Although this opinion is widely accepted, it is not legally true. Even if you have a long intimate relationship with your partner, you must obtain consent from them before any sexual activity. Similarly, you need fresh consent each time you make an advance. That is, you can’t take past consent as an excuse to make sexual advances.

A Yes For Stage One Is A Green Signal

Just because someone agreed to kiss you, this does not mean that it is also ok for you to move on to the next sexual activity level. Therefore, you also can not use consent for one activity to defend a different action. You can’t use the permission to kiss as an excuse for touching the complainant’s genitals.

Evidently, defence against sexual charges is quite a delicate matter. Only a highly reputed sexual assault defence lawyer like Daryl Royer can defend you against sexual assault charges in Edmonton.

Withdrawal Of Consent Is Not Possible Amid The Sexual Activity

Consent withdrawal is a legal right in Canada. Thus, even if an individual agrees to a sexual activity initially, they have all the right to withdraw their consent at any point amid the act. If the accused does not stop despite the complainant’s protests, the former will face severe consequences of a sexual assault offence.

However, a complainant can not withdraw consent after an activity is over.

Misunderstanding Of Consent Is A Defence

As mentioned earlier, it is upon the accused to ensure that the alleged victim consents to any sexual activity. Thus, you can not use miscommunication or misunderstanding of consent as a defence.

According to Section 273.2 of the Code:

It is not a defence to a charge under sections 271, 272, or 273 that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where

(a) the accused’s belief arose from

  • (i) the accused’s self-induced intoxication,
  • (ii) the accused’s recklessness or wilful blindness, or
  • (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Let The Best Sexual Assault Defence Lawyer Help You

Boasting high-quality defence, exceptional services, and the perfect balance between compassion and professionalism, Mr Royer stands out as the best criminal defence lawyer in Edmonton and the surrounding areas.

Need high-end defence services? Contact Daryl Royer now.

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