The issue of “consent” in commonly raised in assault and sexual assault cases. Victims should be asked direct (not leading) questions about consensual issues and investigators should seek to substantiate or corroborate statements made by the victim regarding this highly contentious issue. Regardless of whether you find the victim statement convincing ( A subjective test), The court will be looking for objective evidence in support of the victims statement.
The following sections of the Criminal Code may have application to your case
Section 265 (3) Consent
For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
- (a) the application of force to the complainant or to a person other than the complainant;
- (b) threats or fear of the application of force to the complainant or to a person other than the complainant;
- (c) fraud;
- or(d) the exercise of authority.
For the purposes of sexual assault the “meaning of consent” is described in Section 273.1 (2)
Where no consent obtained
No consent is obtained, for the purposes of sections 271, 272 and 273, where
- (a) the agreement is expressed by the words or conduct of a person other than the complainant;
- (b) the complainant is incapable of consenting to the activity;
- (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.