The C Word: Canada’s Consent Laws

consent

New Year’s Eve approaches and with it lots of drunken merriment. There will be hangovers the next day, and many people waking up next to those they would never have slept with sober.

This is why the days before the partying are a great time to talk about the C word…

CONSENT.

For many, the notion of consent is a mood killer, something only overly polite sissies ask about prior to having sex. Though the words “are you SURE” can seem like the ultimate buzzkill, engaging in any form of sex when you have doubts about a person’s willingness can get you in serious trouble.

Sexual assault is a serious crime.

If you are convicted of sexual assault, you’re looking at a sentence of up to 10 years in prison, and that number increases if the victim was under the age of 16 or you used a weapon to commit the crime.

The definition of sexual assault is a simple one: it’s an assault that’s sexual in nature. Assault as per the Criminal Code is any intentional application of force to another person without their consent. If you touch or engage in any kind of sexual activity with someone without their permission, you are committing sexual assault.

Consent is defined by law as “the voluntary agreement of the complainant to engage in the sexual activity in question.”

There is no consent if someone other than the victim gave consent i.e. “her father said I could.”

There is no consent if the person is incapable of consenting, either because the person is too young, or unconscious, or too drunk.

There is no consent if you abuse a position of trust, power, or authority in order to get sexual favors from a person i.e. “fuck me or you’re fired.”

There is no consent if the person expresses a lack of consent to engage in the sexual activity. That means “no means no,” but by law that “no” can be by words or conduct. That means that the person doesn’t have to say it. If the person struggles, fights, cries, screams, and/or begs you to stop and you keep going, you are committing a sexual assault.

There is no consent if the person, having consented to sexual activity, “expresses, by words or conduct, a lack of agreement to continue to engage in the activity”. That means that a person has a right to stop things at any time, and continuing despite their reluctance constitutes a sexual assault.

This list is non-exhaustive, but the defenses one can use when facing a sexual assault charge are.

You can argue that you didn’t do it.

You can argue that the person consented to sex.

You can argue that even though you now recognize that the person didn’t really consent, you had an honest but mistaken belief that the person did consent.

You can’t claim you believed the person consented if you were too drunk to tell one way or the other, and you can’t have blindly and recklessly assumed the person would agree to the sexual activity.

If, for example, the person is screaming “stop” and the tone is clearly one of discomfort, you can’t recklessly assume that the person is being coy or playing hard to get or trying to egg you on. If you keep going while recklessly or deliberately ignoring every indication that the person doesn’t want to have sex or continue it, then you’re committing sexual assault.

Passivity on the part of your partner doesn’t necessarily equal consent. People are passive during sex for a lot of reasons including fear.

For those who claim women “cry rape” when they did in fact consent to sex, it should be noted that sexual assault carries a HUGE stigma even if you are the victim. People who come forward risk alienating their friends, families, and communities, and have their names dragged through the mud and their sexual histories often exposed for all to see. This is not to say that crying rape doesn’t happen. It IS to say that it’s RARE and the majority of sexual assaults aren’t reported.

This New Year’s Eve or any other time you might be in circumstances where sex or any kind of sexual activity is possible, use your common sense.

Drunken consent is NOT consent.

Passivity is NOT consent.

Silence doesn’t necessarily mean consent.

Getting someone drunk or drugged in order to get their consent and then having sex with them is sexual assault.

Just because a man is hard doesn’t mean he’s consenting to sex.

An unconscious person can’t consent to sexual activity.

If you have ANY doubts as to a person’s willingness, don’t be afraid to ask. You’re not being a sissy, you’re obeying the law, and making sure someone is willing is sexy as hell.

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