Understanding Consent in the Context of Sexual Assault Charges
- Consent separates lawful physical contact and unlawful physical contact. All parties must consent to physical and sexual contact with the other party prior to any contact.
- Implied consent covers touching that consists of social norms for what is acceptable physical contact with others. Implied consent does not apply in sexual assault cases.
- A consensual fight becomes non-consensual once serious bodily harm is intended and caused on one of the participants.
- Silence does not constitute consent being given.
- Consent can be communicated with words, actions and through other means. Approving gestures, acts and words may communicate consent.
Factors which may render Consent invalid in Sexual Assault Cases
Assault related offences, whether sexual or not, require a lack of consent by a party to become a criminal matter. Consent has its limitations which can render consent as invalid:
- Consent may not be obtained when there is intimidation or a threat of violence to a complainant.
- Consent is not given if there is fraud (dishonesty on some key element) surrounding the circumstances that lead to consent.
- Consent is not given if there is a power imbalance between parties which results in the use of one’s authority over another in order to obtain consent.
- The law also states that once serious bodily harm has been caused by an individual upon another, any previously established consent is nullified.
Contact us to obtain a free consultation with a sexual assault lawyer and to learn if these issues may be applicable to your sexual assault case. Experienced legal counsel can help identify potential issues with your sexual assault case.
Sexual Assault Defences: Mistake of Fact
Sexual assault cases are often decided on the basis of actual or mistaken belief in consent and if the accused legitimately believed that the other party consented to sexual contact. This is known as a “mistake of fact”. “Mistake of fact”, or the honest misunderstanding of consent and whether it has been given or not, if proven before the court, eliminates the mens rea, or ‘guilty mind’ element which is required in proving that someone has knowingly committed a criminal offence.
For “mistake of fact” (or honest but mistaken belief in consent) to be used as a defence, there are three things that must be present.
- First, there must be evidence that the accused honestly held the belief that the complainant was consenting to contact when the incident occurred.
- The second factor that must be present is evidence that no consent was given, whether it be due to refusing to consent or not offering consent.
- The final requirement is evidence that various details of the incident could have reasonably been understood by the accused at the time as the complainant giving consent to activity.