In Ontario, sexual assault is a criminal offence that includes any unwanted touching of a sexual nature, such as kissing, fondling or rape. Regardless of the act committed, one aspect that plays a critical role in sexual assault cases is consent.
Why Does Consent Matter?
Consent is used to determine whether the criminal act of sexual assault truly took place. There are three general ways in which consent is evaluated by law enforcement, the Crown prosecutor, your criminal defence lawyer, and the judge:
- Was the individual of sound mind and did they have the legal capacity to consent?
- Did the individual give consent of their own free will without being under the influence of drugs or alcohol, or being coerced, threatened, or forced?
- Did the individual use verbal or nonverbal actions to communicate consent for sexual acts?
What Does Capacity to Consent Mean?
Capacity to consent means the individual is legally able to consent to sexual acts. This is based on a range of factors depending on the circumstances in the case. During a criminal investigation of sexual assault, one of the first things determined is whether the alleged victim had the capacity to consent, which could include one or more of the following:
- The person was at least 16 years old and legally of the age to consent in Ontario.
- The person does not have a mental or developmental disorder where they lack the mental capacity to consent.
- The person was not intoxicated or under the influence of drugs and alcohol.
- The person was awake and aware of what was occurring.
- The person was not considered vulnerable, such as an adult in dependent care or an elderly person.
- The accused did not use a position of authority to elicit consent from the alleged victim.
Please remember, these are just some of the factors used to determine the capacity to consent. It is also worth noting the age of consent does have certain exceptions where it may not apply.
When a person is found to have had the capacity to consent and it can be established consent was given willingly and freely, then it can make a difference in the outcome of the alleged sexual assault.
What Should I Do If I Have Been Charged with Sexual Assault?
The most important thing is to not waive your right to remain silent. You should not speak to the police or be interviewed by law enforcement or the Crown without speaking to and obtaining help from your own sexual assault defence lawyer.
Anything you say can and will be used against you later, so it is best to exercise this right to protect your interests. You will want your criminal defence lawyer present during any questioning or interviews and should follow their advice to obtain the most appropriate outcome possible. Furthermore, your lawyer can assist you with your bail hearing and potentially securing bail.