What is the definition of consenting to sexual activity in Canada? Well, first of all, under Section 273.1 of the Criminal Code consenting to sexual activity means a person is voluntarily choosing to engage in that sexual activity. There has to be freewill. There has to be a yes. That yes has to be conveyed in different ways. Well, first of all, yes, can be conveyed by body language but that’s very dangerous for the other person to just rely on body language.
I would recommend that everyone that you get yes and body language it and it has to be at all aspects. So from start to finish, during the sexual activity there has been yes and that yes is I recommend that you get both otherwise there’s totally grey areas you could wind up in court. Body language communicating Yes. And yes at every stage. This is particularly important for couples when they just start dating, especially because there can be miscommunication. I’ll give you an example. First of all, you know, the court looks at things subjectively.
So they’ll, for example, a young woman, they’ll say what was she thinking? Did she want to have the sex of the time, if they believe her that she said no I didn’t, in my mind I didn’t want to have sex, but she was giving some signals about the body language. Well, that’s still a sexual assault. Now the person has to prove that they had a honest but mistaken belief and consent and that’s a difficult thing to pull off so you should get yes. Obviously as couples progress in their relationship, body language can become easier to interpret, but this is a very important thing. Now consent, you know, you can’t consent with a person who’s extremely drunk who’s out of it. So if a person is incapacitated, they don’t have the ability to consent.
Another person can’t give a person consent. Consent has to be conveyed at every step of the sexual act from start to finish, very important. And a person can’t abuse their position of trust, as an employer, for example, manipulating the person to do sex. If any of those things are present, it’s what’s called vitiates. In other words, gets rid of the consent and drunkenness and incapacity are a big thing. Of course
Of course, a person can be fairly drunk and consent. I mean, there’s no question about that. But there’s a line it’s a grey area line. And again, I don’t recommend ever having sex with a drunken person. Because of that. You have to be very, very careful because that person would come and say they don’t remember.
They didn’t consent and maybe they didn’t and especially you know when a person is too drunk to have sex. You have to be very careful. And the couples, they have to be very careful in the dating relationship. You always have to be careful, you have to get consent at every step. So let’s talk a little bit about what’s proven in court, well the Crown has to prove beyond a reasonable doubt that the person did not consent and they examine what was in that person’s mind. They’re going to testify and say, I didn’t want to have sex. I said, No. If that’s the case, in their belief, you know, to a high level beyond a reasonable doubt the person’s going to be found guilty. Now, I gave you the scenario, this happens sometimes in court, it’s more rare occurrence.
But there are scenarios where there’s no talk. The woman’s expressing some degree of body language which she’s saying yes, but she’s not, the person didn’t ask her, very dangerous to have sex in that scenario.
You might win your trial. You might no,t I mean, it depends how there’s some people they don’t want to do something but they convey a little bit through their body language very dangerous, don’t do that, don’t go there. Just make sure you get yes at every step of the procedure. And you know, when you’re leading an honest mistaken belief and communicators consent you can’t rely on your own toxic patient. Oh, I was drunk too. I had a hard time interpreting it. Oh, you can’t rely on willful blindness. Oh, I just went ahead and did it, I thought she was consenting because she lifted her leg once or reckless behavior where you don’t really want to know and you proceed.
So these are difficult defenses to bring off. You know, the safe route for any young people out there or anyone really do not, you know, especially at the earlier dating relationship, you shouldn’t really have sex when you’re drinking heavily. There’s no question about it. It just leads to a lot of court cases. I’ve been involved in dozens and dozens and dozens of them over the years and it’s not a pretty thing or miscommunications can happen, misinterpretations can happen, and you need to get that “yes”. So that’s what I’ve conveying to you, under our laws of consent in Canada that voluntarily agreement to enter into the sexual act has to be communicated from start to finish.
And the woman or the man for that matter, they can withdraw their consent at any time as soon as they say stop or no or their body language even says that you have to stop if you proceed beyond that. Let’s say you’re having sexual intercourse and the person says stop and you keep proceeding. Well, that’s a sexual assault that could result in two and a half to two and a half to three and a half years in jail right there just for that moment and brief stupidity of your ears of not listening to your partner in a particular situation.
Now, you know, there’s some difficult concepts, there’s a lot of grey areas. Unfortunately, as a lawyer I deal with these grey areas all the time. And there’s so many cases where, you know, the client says he thought he was consenting, when there was no “yes”, and you just can’t. You can’t be involved early on in a relationship and not get all of these elements together. And in fact, in all relationships I recommend getting it from start to finish from the time you’re married until the time your old there needs to be a yes at all times and there needs to be body language. In that way, You’re not going to wound up with a sexual assault charges if you follow that script.
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