The principles of consent that apply to assault also apply to sexual assault. The victim of sexual touching must freely consent to the act, and must understand the nature of the act being consented to. The courts have applied the definition of consent to mean that a person cannot consent to having serious bodily harm done to himself or herself (R. v. Jobidon (1991, S.C.C.)).
Consent means the voluntary agreement of the complainant to engage in the sexual activity in question.
No Consent is obtained when:
- The agreement is expressed by the words or conduct of another person other than the victim (complainant)The complainant is incapable of consenting to the activity
- The accused (by abusing a position of trust, power or authority) induces the complainant to engage in the act
- The complainant expresses by words or conduct a lack of agreement to engage in the act or
- The complainant, having consented to engage in the sexual activity, expresses (by words or conduct) a lack of agreement to continue to engage in the activity
A person who is under the age of sixteen cannot consent to sexual activity with another person who is five or more years older than them. A person who is under the age of fourteen years cannot consent to sexual activity with another person who is two or more years older than them. In any case, a person in authority cannot use consent as a defense of having sexual activity with a person under the age of sixteen.
How to prevent committing a sexual assault:
- Ensure your partner consents to sexual activity. You must have consent from your partner before you can legally engage in sexual activity.
- If someone is passed out, unconscious, or asleep, they are unable to legally give their consent
- Ensure a potential partner is of legal age. Ignorance is no defense.
- Understand or talk with the other person about what they are comfortable doing. Not talking can result in pushing someone further than they want to go.
- Be careful when using drugs and alcohol. People under the influence of intoxicants may interpret situations differently that they regretted later. Intoxicants can influence different memories of how events may have occurred.
- Communicate your expectations to a potential partner. Lack of communication, can lead to misunderstandings and/or unwanted situations.
- Listen to your partners, don’t make assumptions.
Remember that NO MEANS NO even if the other person:
- Says yes, but changes his or her mind.
- Has been kissing you or engaged in some form of sexual activity.
- Has had sex with you before.
- Has been using an intoxicant and appears willing.
- Wears provocative clothing
Examples of “No”:
- Not now"
- "Maybe later"
- "I have a boy/girlfriend"
- "No thanks"
- "You're not my type"
- "*#^+ off!"
- "I'd rather be alone right now".
- "Don't touch me"
- "I really like you but ..."
- "Let's just go to sleep".
- I'm not sure".
- You've/I've been drinking".
- NOT Understanding "NO."