consent puzzle pieceIn a sexual assault case, conviction depends on the question of consent. Typically, the judge or jury must decide whether a victim gave consent for sexual acts. While this is usually a yes-or-no question, there is a third option available in some cases—the honest but mistaken belief of consent.

What Is an Honest But Mistaken Belief in Consent?

The defence of "honest but mistaken belief" is allowed based on "mistake of fact" in committing a crime. To be guilty of criminal actions, a person has to be aware that they are doing wrong at the time of the offence. If the defendant honestly believed that the accuser had given consent, he was unaware that he was committing a crime.

There are strict requirements when using an honest-but-mistaken-belief defence. For example, a defendant accused of sexual assault must show:

  • More than a subjective belief of consent. It's not enough for a defendant to disagree on what does and does not constitute consenting behaviour. A mistaken belief must be supported by evidence or circumstances that prove the defendant thought the sexual conduct was lawful.
  • Positive evidence of consent. Consent must be more than just an absence of non-consent. For example, it's not enough that an accuser was silent or did not say "stop" or "no," because the accuser could have been frightened or unable to speak. Silence, passive behaviour, or ambiguous conduct cannot be taken as consent under the law. There must be actual statements, actions, or evidence to constitute consent.
  • The potential for misunderstanding consent. The evidence must show a state of ambiguity or equivocality in circumstances or actions that could reasonably be misinterpreted as consent. For example, the defendant could have mistakenly believed that an accuser was nodding or reciprocating when the accuser was actually trying to push him away.
  • Reconcilable versions of events. If the versions of events between the defendant and the accuser are so opposed that both versions could not possibly be true from different perspectives, the mistaken belief of consent is not admissible.
  • The air of reality. Canadian law requires that the circumstances of misunderstood consent must have an "air of reality;" that is, the misunderstanding must not be farfetched.
  • Lack of willful blindness or recklessness. The defendant's mistaken belief does not excuse him from willfully or recklessly engaging in sex acts. If the defendant suspected that the accuser fell asleep but did not stop or attempt to wake the accuser, he could not argue that he was mistaken because unconscious people cannot consent. On the other hand, this defence might be available if the victim suddenly fell unconscious but appeared awake from the defendant's perspective.

What Are "Reasonable Steps" to Obtain Consent?

To argue mistaken belief in consent, a defendant must show that "reasonable steps" were taken to ascertain consent throughout the sexual act. The definition of "reasonable" depends on the particular circumstances of the case, but common examples include:

  • Permission. All people are expected to obtain consent before a sex act commences.
  • Escalation. As the sexual activity escalates, partners should ensure consent continues.
  • Attention. Partners must pay appropriate attention to a partner during sexual contact for potential negative cues and reaffirm consent and awareness of the activity.
  • Communication. If something seems wrong, a partner should stop and ask for direction and confirmation before continuing.

Will This Defence Work in My Case?

For a judge or jury to accept a mistaken belief in consent, they must consider three factors. First, they will have to determine the circumstances known to you at the time of the sexual act. Then, they will have to consider whether consent could have been misinterpreted based on the totality of the circumstances.

Next, the judge or jury must ask whether a reasonable person who knew what you knew would have acted differently in the same circumstances. If they determine that a reasonable person would have taken further steps before proceeding or stopped the sexual interaction completely, the defence is unlikely to work in your case.

As experienced sexual assault defence lawyers, we know how to approach cases of mistaken consent. The legal team at Kruse Law is made up of several former prosecutors, giving us the benefit of knowing what works on both sides of the aisle. Contact us today to set up your free case review and learn how to minimise the effects of criminal charges on your life.

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