What is consent? Can consent be given in advance? What happens if he/ she is unconscious or semi-conscious? Can I test the waters? Must everything be explicit? But won’t that kill the mood? Do I need to ask for his/ her permission in a play-to-play manner before any advances? But what if I honestly but mistakenly believed that she consented?
So what is consent?
Consent is permission to engage in an activity. When two people engage in sexual activity, they both have to agree to what’s happening. This is known as giving consent.
Engaging in a sexual act without the other person’s consent is sexual assault. Consent is ongoing and cannot be implied based on previous history.
Prior to engaging in any sexual activity, it should be clear that you and your partner are willing, comfortable, and in agreement to continue.
How is consent communicated?
It is communicated by words or conduct regarding her/his agreement to engage in the sexual activity. Sexual consent is always clearly communicated — there should be no question or mystery.
Consent must be clearly expressed in words and behaviour and it’s important to know that consent is not obtained if:
a person is impaired by alcohol or drugs
a person is unconscious or sleeping
a person is in a position of trust or authority (teacher, coach, employer, etc.)
a person uses intimidation or threats to coerce someone into sexual activity
a person changes his or her mind and says “no”
How do I know if it’s consensual sex?
The people participating in the sexual activity must agree to what’s happening. Consent is a choice and means agreeing together. Here are a few ways consent is given:
each person wants to and says “yes”
each person says “yes” out loud and to each other (silence or a nod is not enough)
But keep in mind that:
saying “yes” to one thing doesn’t imply “yes” to something else
if you move on to something else, each person needs to consent again
pressuring someone to change their mind is not consent
even if someone doesn’t say no, if someone can’t give consent (because of alcohol, drugs, lack of consciousness or their age) then this is not consensual
What is not consent?
There is no such thing as assumed or implied consent.
Myth: Implied Consent is OK
Implied consent rests on the assumption that unless a woman/man protests or resists, he/ she should be deemed to consent. Implied consent has no place in Canadian law.
Myth: Advance Consent is OK
A person may have consented on a previous occasion, but this does not obligate them to consent in the future. Therefore, it is required even in long-term relationships.
A belief that a person gave broad advance consent to sexual activity of an undefined scope is not a defence. This belief is mistake of law, not fact.
Can Consent be Withdrawn?
Yes. Consent can be withdrawn at any time. This can be indicated with either words or actions. “No” always means “no”, even if you or a partner initially agreed to sexual activity or sexual activity has already begun.
Sometimes a person may say “yes” and later be hesitant or feel uncomfortable about continuing. If someone changes their mind, sexual activity should stop.
Mistaken Belief in Consent
But what if I honestly but mistakenly believed that he/ she consented to the sexual activity?
In order to rely on this defence, you have to prove to the court that you took reasonable steps to ascertain consent. The steps must be objectively reasonable. If you rely on this defence, the reasonableness of those steps will be assessed in light of the circumstances known to you at the time.
Myth : Silence, Passivity, Ambiguity is OK
No. It is impermissible to equate silence, passivity, or ambiguity with the communication of consent.
Myth: Testing the “Waters” is OK
No. You cannot “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching. This will not be considered a reasonable step if you rely on the defence of honest but mistaken belief in consent.
Courts have ruled that steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps.
What if I’m not sure?
When in doubt, just ask for permission. Ask the following:
Is this OK?
Are you comfortable?
Do you want to slow down?
Do you want to go any further?