Misconceptions About Consent in Long-Term Relationships or Marriage

In Canada, consent is always required for sexual activity—regardless of your relationship status. Here’s what you need to know:

• Marriage or long-term relationships do not equal automatic consent.

• Consent must be clear, ongoing, and can be withdrawn at any time.

• Past sexual activity does not guarantee future consent, even between partners.

• Silence, passivity, or lack of resistance is not consent under Canadian law.

• Spouses can be charged with sexual assault—being married offers no legal exemption.

• Spousal sexual assault is treated at least as seriously as any other form of sexual assault under the Criminal Code.  In fact, the courts in Ontario have found that  sexual assault against an intimate partner warrants heightened denunciation and deterrence compared to non intimate partner sexual assault. 

Read the full article to understand your legal rights and the importance of clear, informed, and ongoing consent in all relationships.

When people think about sexual assault, they often picture strangers attacking victims in dark alleys. This narrow perception has created dangerous misconceptions about consent in intimate relationships. The reality is that sexual assault most commonly occurs between people who know each other—including spouses and long-term partners.

If you’re facing accusations related to sexual activity in a long-term relationship or marriage, understanding the legal reality of consent in Canada is crucial. The law is clear, nuanced, and applies equally to all relationships, regardless of their duration or nature.

 

 

The Legal Standard: What Is Consent Under the Criminal Code?

Before addressing common misconceptions, it’s essential to understand how Canadian law actually defines consent. This legal foundation governs all sexual activity in Canada, regardless of relationship status.

 

The Criminal Code Definition

Under Section 273.1 of the Criminal Code of Canada, consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question.” This simple definition contains several critical elements:

Voluntary Agreement: Consent must be freely given without coercion, threats, or abuse of power. This means it cannot be obtained through force, intimidation, or exploitation of vulnerability.

For the Specific Activity: Consent for one type of sexual activity doesn’t automatically extend to others. Agreeing to kissing doesn’t mean agreeing to intercourse.

At the Time: Consent must exist at the moment the sexual activity takes place. Past consent doesn’t guarantee future consent.

 

When No Consent Is Obtained

The Criminal Code also specifies circumstances where no consent is obtained, even if there appears to be agreement. These include when:

• The complainant is incapable of consenting (due to intoxication, unconsciousness, or cognitive impairment)
• The complainant expresses lack of agreement by words or conduct
• The accused induces participation by abusing a position of trust or authority
• The agreement is expressed by someone other than the complainant

Understanding consent in sexual activity requires recognizing that the responsibility for ensuring consent lies with the person initiating sexual contact.

 

 

Debunking Four Dangerous Myths About Consent in Marriage

Several persistent misconceptions about consent in long-term relationships can lead to serious criminal charges. Understanding these myths—and the legal reality—is crucial.

 

Myth 1: Marriage Creates Automatic or Ongoing Consent

The Myth: Some people believe that marriage or a committed relationship creates automatic consent for sexual activity. This dangerous misconception suggests that by entering a relationship, partners have given blanket permission for future sexual encounters.

The Legal Reality: Canadian law explicitly rejects this notion. Since 1983, sexual assault has been a criminal offence regardless of the relationship between the parties. Section 278 of the Criminal Code specifically states that spouses can be charged with sexual assault against each other.

Marriage is not a contract for unlimited sexual access. Each sexual encounter requires fresh, voluntary agreement from both parties.

 

Myth 2: Past Sexual Activity Implies Future Consent

The Myth: Another dangerous misconception is that previous consensual sexual activity creates an expectation or right to future sexual contact. Some believe that if partners have been intimate before, consent is presumed for similar future encounters.

The Legal Reality: The Criminal Code is clear that consent cannot be given in advance for future sexual activity. Each sexual encounter is legally distinct and requires its own consent. A person’s sexual history with a partner is irrelevant to whether they consented to a specific incident.

This principle applies whether the previous sexual activity occurred hours, days, or years earlier. The difference between express consent vs implied consent is a critical distinction in court, and the law requires affirmative consent for each encounter.

 

Myth 3: Silence or Lack of Resistance Equals Consent

The Myth: Some people mistakenly believe that if their partner doesn’t explicitly say “no” or physically resist, they have consented. This misconception treats silence, passivity, or failure to resist as agreement.

The Legal Reality: Canadian law requires affirmative consent. Silence, passivity, or lack of resistance does not constitute consent. The absence of “no” is not the same as “yes.”

The Criminal Code recognizes that people may not resist or object to sexual activity for various reasons—fear, shock, intoxication, or power imbalances. The law places the responsibility on the person initiating sexual contact to ensure they have clear, affirmative consent.

 

Myth 4: Spousal Duties Include Sexual Availability

The Myth: Outdated notions about marriage sometimes include the belief that spouses have a legal or moral obligation to be sexually available to their partners. This misconception treats sexual activity as a marital duty rather than a choice.

The Legal Reality: No such obligation exists in Canadian law. Marriage does not create any legal duty to engage in sexual activity. Each person retains complete autonomy over their own body and the right to refuse sexual contact at any time, for any reason.

The concept of “marital duty” has no legal standing and cannot be used as a defence against sexual assault charges.

 

 

“I Thought They Consented”: The Defence of Honest But Mistaken Belief in Communicated Consent

Understanding the legal nuances around consent includes recognizing when someone might genuinely misinterpret the situation. Canadian law acknowledges this possibility while maintaining strict standards for consent.

 

What This Defence Means

The honest but mistaken belief in communicated consent defence allows accused persons to argue they genuinely believed consent was given, even if they were mistaken.

However, this defence has strict limitations:

• The belief must be honest and genuinely held
• The accused must have taken reasonable steps to ascertain consent
• The belief cannot be based on the accused’s own intoxication
• The accused cannot have been wilfully blind to the lack of consent

 

Reasonable Steps to Ascertain Consent

Courts examine whether the accused took reasonable steps to ensure consent was given. This might include:

• Clear verbal communication
• Checking in during sexual activity
• Responding appropriately to signs of hesitation or discomfort
• Stopping when consent is withdrawn

The defence is not available if the accused ignored obvious signs of non-consent or failed to make any effort to confirm agreement.

 

 

How Consent Is Proven in Court

Sexual assault cases involving spouses or long-term partners present unique challenges for both prosecution and defence. Understanding how these cases are evaluated helps clarify the legal stakes.

 

Evidence in Spousal Sexual Assault Cases

Courts consider various forms of evidence when determining whether consent was given:

Complainant’s Testimony: The complainant’s account of what happened is central to most cases. Courts examine consistency, detail, and credibility.

Physical Evidence: While not always present, physical evidence of force or injury can be significant.

Circumstantial Evidence: This might include text messages, witness observations, or patterns of behaviour.

Expert Evidence: In some cases, expert testimony about trauma responses or relationship dynamics may be relevant.

 

The Challenge of Conflicting Testimony

In many spousal sexual assault cases, there are only two witnesses—the complainant and the accused. When their accounts differ, courts must carefully assess credibility based on:

• Consistency of testimony
• Corroborating evidence
• Demeanour of witnesses
• Logical coherence of accounts

 

 

Why These Cases Are Prosecuted Aggressively

Ontario’s justice system treats sexual assault within relationships with particular seriousness, recognizing the unique dynamics and potential for ongoing harm.

 

Specialized Prosecution Approaches

Crown prosecutors handling these cases understand the complexities of intimate relationships and may:

• Call expert witnesses to explain trauma responses
• Address common myths about consent in relationships
• Emphasize the vulnerability of victims in intimate settings
• Argue for serious sentences to reflect the breach of trust

 

Long-Term Consequences of Conviction

A sexual assault conviction carries severe, lasting consequences:

• Mandatory inclusion on the Sex Offender Information Registration Act (SOIRA) database
• Potential jail sentences
• Lifelong criminal record
• Employment and travel restrictions
• Impact on family law proceedings
• Social and personal stigma

Because sexual assault cases require specialized knowledge and experience, having skilled sexual assault lawyers in Ontario is crucial for anyone facing these charges.

 

 

Frequently Asked Questions About Spousal Sexual Assault Charges

Q: Can I be charged with sexual assault against my own spouse in Canada? A: Yes. Since 1983, Canadian law has explicitly recognized that spouses can commit sexual assault against each other. Marriage provides no immunity from sexual assault charges.

Q: What if we had consensual sex earlier that day? Does that count as consent for later? A: No. Each sexual encounter requires its own consent. Previous consensual activity, even on the same day, does not imply consent for subsequent sexual activity.

Q: My partner never explicitly said “no.” How can that be sexual assault? A: Canadian law requires affirmative consent. Silence, passivity, or failure to resist does not constitute consent. The absence of “no” is not the same as “yes.”

Q: Can charges be laid even if my spouse doesn’t want to press charges? A: Yes. Once police become aware of an alleged sexual assault, the decision to lay charges rests with the Crown, not the complainant. Charges can proceed even if the spouse doesn’t want to pursue them.

Q: What kind of evidence is considered in a spousal sexual assault case? A: Courts consider testimony from both parties, any physical evidence, text messages or communications, witness observations, and expert evidence about trauma responses or relationship dynamics.

Q: If convicted, what are the potential penalties? A: Sexual assault convictions can result in jail sentences (potentially several years for serious cases), inclusion on the sex offender registry, a permanent criminal record, and various other consequences affecting employment, travel, and family relationships.

 

 

If you’re facing accusations of sexual assault within a marriage or long-term relationship, the stakes couldn’t be higher. The law is complex, the consequences are severe, and the need for experienced legal representation is immediate.

Whether you need a sexual assault lawyer in Toronto, London, Windsor, or Kitchener, don’t face these charges alone. Contact Kruse Law today for a confidential consultation to discuss your case and begin building your defence.