Perhaps no offence under our laws is as politically charged as sexual assault.  And in no other offence situation are the gender lines as clearly drawn: while there are some exceptions, most sexual assault allegations are made by women who say they have been violated by men. Because of the infinite variations of factors which are at play when men and women interact, this crime covers a very wide range of situations. So, ordinarily non-criminal individuals may nonetheless find themselves facing charges.

To properly understand our present laws about sexual assault we should begin with the legal history involved.

For centuries, our laws failed to properly protect women and children from the criminal behaviour of men.  Women and children were often considered little more than items of property and this left them vulnerable to many forms of abuse and mistreatment.  Until the early 1980s in Canada, it was impossible to convict a man for raping (having intercourse without her consent) a woman on the evidence of the complainant alone.  A woman’s evidence of rape was considered so inherently unreliable and untrustworthy that the Crown had to offer independent, supporting confirmation in some form before a man could be found guilty of this offence.  Children suffered from the same disadvantage: in some situations they were simply not able to testify, and even when they were allowed to give evidence, there virtually always had to be some form of independent support for what they were alleging.  These rules had the effect of allowing many perpetrators of horrendous crimes against women and children to go free.

In the 1980s, as a result of a government review (the Badgley Commission) into issues about sexual abuse of women and children and the law, the Criminal Code underwent a significant revision.  The old rules were abolished, and the evidence of women and children was placed on a level equal to that of men. For children , there continued to be legal changes over the years in order to receive their evidence with fewer legal hurdles.

The main change in the law was the replacement of the crime of rape (and many other forms of sexual crime) with the broader, all-inclusive concept of “sexual assault”.  Under the new law, the offence would be treated as a form of assault, and prosecuted in accordance with principles common in this area although, as we will see, there would be additional, special rules applied in particular situations. As part of these changes to the Criminal Code new, special sexual offences in relation to children were also brought into our law. To be clear, sexual assault applies where children are the victims  even where some of the other, more specialized provisions of the Criminal Code also apply.

The mindset of the complainant is important because, to be an assault, the contact between the parties must be without the consent of the person touched.Any crime in Canada involves two basic elements: a wrongful or prohibited act committed by the accused person, and an accompanying intention to commit the offence (sometimes referred to as a “guilty mind”).  Under the law of sexual assault – as with any other form of assault – the wrongful physical action is any intentional application of force without the consent of the person being touched.  What takes unwanted touching from being an “ordinary” assault to a sexual assault is the sexual element itself. The act of touching may be found to be the basis of a sexual assault if the force was applied for a sexual purpose, or violated the sexual integrity of the person being touched.

The scope of this offence is extremely broad.  It covers everything from an unwanted kiss on the cheek or a hand touching another person’s buttocks on top of clothing, to the most violent, horrific rape of a stranger, and everything in between.  Even the removal of another person’s clothing – pulling down someone’s pants, or lifting a woman’s shirt – can be the basis for a sexual assault charge.  And even where an action is not intended for any sexual purpose or gratification, if it is considered to violate the sexual integrity of the person touched, it can still be found to amount to a sexual assault.  For example, a babysitter or parent whose hand strays too close to the crotch of a child with whom they are rough-housing or tickling may be found to have committed a sexual assault even where sexual contact was the furthest thing from their minds.  Virtually any type of touching between two persons may potentially be found to amount to a sexual assault if there is even a hint of sexual content to the action in question.

In addition to the physical actions, as with any other form of assault, this offence can only be proven if the touching was without consent of the person touched (I will refer to this person as “the complainant” in the rest of this article), and if the accused is shown to have had the necessary “guilty mind” at the time of the touching.  This is where things tend to get complicated; confusing these two factors – the state of mind of the complainant and the state of mind of the accused – has led to much judicial debate and a number of significant court rulings in this area.

The mindset of the complainant is important because, to be an assault, the contact between the parties must be without the consent of the person touched.

At any time a “yes” can be made into a “no” by the complainant telling (by word or deed) the accused exactly that.Our laws permit people to agree to have others touch them in many everyday situations.  Someone who takes the arm of another person who has reached for assistance as they start to fall does not commit an assault. A doctor who touches a patient in the course of a requested medical examination does not commit an assault as long as the touching is limited to what is necessary for proper medical purposes.

Similarly, persons who willingly engage in intimate physical activity together do not commit sexual assaults upon one another as long as each remains consenting to the conduct and behaviour of the other.  To be valid:

• consent must be voluntary and it must be given by the person who is being touched in the situation: no one can give valid consent to the unwanted sexual touching of another person;
• the individual in question must be capable of consenting at the time: he or she cannot be so mentally ill, or affected by alcohol or drugs, for example, that they do not know what they are doing;
• consent must not be obtained by the accused exercising a position of trust or authority over the other person: adult caregivers cannot therefore seek to obtain the consent to having sexual contact with persons in their charge by means of their power over those other persons;
• consent cannot be given in advance to sexual contact which takes place while a person is asleep or unconscious;
• because it is always revocable, consent must be on-going and conscious throughout the activity in question; and finally
• to protect children, no one under 16 may consent to have sexual contact with an adult (there are a number of special rules which sometimes apply where both parties are under 19 years old which are intended to avoid criminalizing consensual teenage sexual activities) .

Even when consent is given, it may be retracted and it may also be limited. Agreeing to a minor form of sexual activity does not mean everything sought by one side has necessarily been agreed to by the other.  At any time a “yes” can be made into a “no” by the complainant telling (by word or deed) the accused exactly that.

Only in certain, limited situations will self-induced intoxication provide a form of defence; sexual assault is not one of those.At the same time, care must be taken not to confuse later regret or embarrassment with a lack of consent. “In the heat of the moment” – and especially after alcohol has been consumed (though not so much as to render someone incapable of consenting to what is being done to them) – men and women may engage in activities of which they would never dream in most other situations.  Sometimes, after a sexual encounter has ended, one or both parties feel ashamed and embarrassed. However, those later feelings do not nullify the consent which existed at the time of the contact; an assault has only taken place where, at the time of the actions of the accused person, the complainant was not consenting to that contact, even if the complainant later wishes he or she had behaved differently in that situation.

In addition to what is in the mind of the complainant, what is in the mind of the accused person is essential to deciding whether a criminal act has been committed.  The accused person must be proven to have had a “guilty mind” before he or she can be convicted of committing a criminal offence.  In the case of sexual assault the Crown must be prove that the accused intended to touch the complainant in a sexual fashion, knowing the complainant was not consenting to that activity or contact.  If the touching was accidental, or if the accused believed that the complainant was consenting, or if there is doubt about the accused’s state of mind, he or she must be acquitted.  Again, this is not a special principle in sexual assault law, but rather, is a basic rule followed and applied in every criminal prosecution in Canada.

If the accused committed the act with an innocent state of mind, he or she is not guilty of a criminal offence.That said, there are some special and unique rules which are applied in the context of sexual assault to determine whether the accused validly – but mistakenly – believed the complainant was consenting to the conduct in question.  To begin with, the accused cannot rely upon his or her own self-induced drunkenness as a basis for having mistakenly believed the complainant was consenting.  This is consistent with other areas of the criminal law. Only in certain, limited situations will self-induced intoxication provide a form of defence; sexual assault is not one of those. If, because of self-induced intoxication from drugs or alcohol, an accused person is not able to or does not realize the other person is not consenting to sexual contact, the accused will not be able to later rely upon their lack of understanding.

The accused is also not permitted to rely upon his or her own alleged mistake about the complainant’s consent if the lack of understanding is the result of   recklessness or willful blindness.

Recklessness is defined as not caring whether the complainant is consenting or not.  It may be found where a complainant has not given consent, but the accused continued without bothering to stop to ask  about consent.

Willful blindness may be found where the accused is proven to have known that a reasonable person would see a need to make further enquiry, but the accused failed to do so specifically so he or she would not know the true state of affairs. In other words, the accused willfully kept him- or herself ignorant.

At the same time, there are some situations where an accused’s mistaken belief about consent will be a defence.  In most criminal prosecutions an accused who believes in a mistaken set of facts may be found not guilty if those facts,had they been true,would have cloaked his or her actions in innocence.  This is the application of the basic requirement that the accused must have criminal intent at the time of the wrongful act. If the accused committed the act with an innocent state of mind, he or she is not guilty of a criminal offence.

In the context of sexual assault, this principle allows for the possibility that even though the complainant may not have actually consented to the act in question, the accused person may have mistakenly but honestly believed that the complainant was consenting. In sexual assault prosecutions there is an added wrinkle to this defence, in that the accused person must take “reasonable steps” to determine that the complainant is consenting.  What amount to “reasonable steps”will depend on the circumstances in each case.  Where the complainant seems reluctant and unwilling, but not overtly and clearly so, and the accused continues with his or her sexual contact without taking reasonable steps to determine the actual state of mind of the complainant, the accused is not likely to be able to argue “mistake”.  On the other hand, where the actions of the complainant seem, objectively and reasonably, to suggest he or she is willing to take part in sexual activity, it may be reasonable for the accused to continue, taking minimal, or even perhaps no steps to determine consent.

The principles about consent and mistake can  be summed up by the adage “ambiguity is not consent”. If one person says or does something ambiguous or uncertain about whether he or she wishes to have sexual contact with the other person, the other party cannot simply continue without first checking to see if consent is present or not.

Some examples may serve to illustrate how these various rules and principles apply in our courts on a daily basis.  These situations are taken from the facts of actual court cases.

A frequent scenario is that, after consuming a fair amount of alcohol, the complainant goes to sleep (or “passes out”) only to awake some time later to find the accused engaged in sexual activity with them. Because consent must be given to any touching that takes place, individuals may not engage in sexual activities of any sort with a person who is unconscious or asleep. Furthermore, even where a complainant gave consent to sexual activity before falling asleep or passing out, to continue to be valid, the person giving consent must remain conscious throughout the activity.  Therefore, in a situation involving an unconscious or sleeping complainant there is unlikely to be any issue of consent.  An accused who says, due to his or her own consumption of copious amounts of alcohol, that they did not know what they were doing will not have a defence to the charge.  He or she is likely to be found guilty.

Virtually any type of touching between two persons may potentially be found to amount to a sexual assault if there is even a hint of sexual content to the action in question.Another common fact situation is where the complainant appeared to be giving consent even though he or she later claims to have no recollection of doing so.   Anyone with a history of drinking large amounts of alcohol has probably experienced “black outs” – periods of time when they have no recollection of things they did or said, or events going on around them.  However, persons in this condition often do not appear to be unconscious. While it is clear they have been drinking, they seem to other people around them to still be possessed of their faculties and generally in control of their behaviour.  In many sexual assault situations there is evidence of the complainant appearing to be willing to take part in sexual activity with the accused, even though he or she claims later to have no memory of having behaved in this way.  These are the kinds of cases where there may be doubt about whether the complainant really did not consent and where, even if the complainant was not consenting, the accused had a valid mistaken belief in consent.  Although perhaps while sober the complainant would not have consented to sexual contact, if there is evidence of conduct on the part of the complainant which indicates a willingness to take part in sexual activity, a court is more likely to conclude that the accused was operating under a mistaken belief about consent, and to find him or her not guilty.

Again,  Canadian law requires consideration of the circumstances in order to determine the validity of the accused’s mistaken belief.  If the evidence is that, upon the accused saying or doing something to suggest he or she wanted sexual contact, the complainant only murmured unintelligibly in response, or snuggled closer to the accused, or did anything else of a somewhat ambiguous and unclear nature, the accused will not likely be able to later argue “mistaken belief in consent.”  Rather, this is the kind of situation where the accused would be expected to take reasonable steps to ensure the complainant actually is consenting.
For centuries, our laws failed to properly protect women and children from the criminal behaviour of men.On the other hand, where there is evidence that the two parties went together into a bedroom and disrobed one another, kissing throughout, the accused is more likely to be found not guilty of committing a sexual assault even if the complainant later claims that he or she did not realize what was going on and did not consent to having sexual contact due to being “blacked out”.  This is the kind of situation where, in light of the complainant’s apparent willing participation as suggested by the physical actions, the accused person is likely not to be expected to take additional steps to determine if the complainant was actually consenting; all the outward signs and indications were that he or she clearly was doing so.

Another common fact pattern is where complainants later changes their minds about wanting to have sexual contact.  If this takes place while the activity is on-going, there is no consent. The accused will likely be found guilty if he or she continues even as the complainant asks or tells the accused to stop, or signals a withdrawal of consent by a physical action – pulling away, or pushing the other person away, or some other similar conduct.  But where the change of heart takes place after the act has ended, there has been no sexual assault committed and the accused should be found not guilty. “Regret does not vitiate consent”.

To summarize, the law in this area is complicated and sometimes confusing.  Some sexual assault cases are relatively clear and straightforward: having sexual contact with a sleeping or unconscious person is, for example, simply against the law and will be punished.  But other situations involve ambiguity, uncertainty, or “mixed signals”. that can be misinterpreted as indications of willingness to take part in intimate activities.  It can all perhaps be reduced to a couple of straightforward concepts:

• first, everyone has the right to decide what happens to their bodies and this includes the right to agree, or refuse, to take part in sexual contact with other persons; and
• second, be clear (and seek clarity) in order to be sure the other person involved in the situation really does want that kind of contact

If there is no clear and voluntary consent, everyone must keep their hands (and all other parts of their bodies) to themselves!