Consent: Only yes means yes
When talking about sex, everyone
focuses on safety in the bedroom.
Condoms and lube are great for
keeping you happy and healthy once
your clothes are off, but what about
before? The key is consent and Canadian
law has some very specific
ideas about what that term means.
The Canadian Criminal Code can be dense, but there are a few key points in section 153.1, the section that deal with the definition of consent, that everyone should know.
First, there are some more obvious situations where a person isn’t consenting. If someone is in a position of power or authority and uses that against you, even if you do say yes, the consent may be vitiated, especially if you fear some sort of backlash for saying no.
Secondly, even if you do say yes – and that yes has to be explicit – the second you communicate a change in your mind, all activity must stop. You don’t even have to say no for this to take effect, simply expressing in word or action that you don’t want to continue is enough.
Communication before sexual contact begins is vital – simply stopping when an individual asks you to but never getting consent to begin in the first place is not sufficient.
“You can’t punch someone as much as you want and be insulated from liability because you stopped when they said to,” said recent Western University law graduate Janice Calzavara. “Why would sexual assault have different rules?”
Also, agreeing to one activity doesn’t mean you agree to everything: just because someone is okay with a sloppy make-out session doesn’t mean they’re okay with you going any further. The key is to check every step of the way. Sometimes a person won’t feel comfortable saying stop, either because they think they can’t or are afraid of hurting feelings, but this doesn’t mean they agree. In Canada, silence does not mean consent.
Finally, if a person is incapable of consent, either because they are asleep, intoxicated, passed out or for any other reason, they can’t consent even if they previously gave permission. This means that sweetly kissing your partner while they sleep could be sexual assault – as crazy as that seems.
This was outlined by the Supreme Court decision R v JA in May 2011 that says, “If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent.”
Speaking of booze, mistaken belief in consent stops becoming a legal defense if the accused was intoxicated, reckless or wilfully blind. This means that if you are on notice that the person is not consenting and you don’t ask questions because you don’t want to know the answer, you are as legally culpable as if you knew they were not consenting. On top of that, being drunk and assuming the person is agreeing is no excuse under the law.
For those looking to follow the letter of the law, there are a few simple rules: make sure everyone involved is sober and awake, get them to say yes, communicate and make sure it’s still a yes the entire time and stop the second anyone seems uncomfortable.
The Canadian Criminal Code can be dense, but there are a few key points in section 153.1, the section that deal with the definition of consent, that everyone should know.
First, there are some more obvious situations where a person isn’t consenting. If someone is in a position of power or authority and uses that against you, even if you do say yes, the consent may be vitiated, especially if you fear some sort of backlash for saying no.
Secondly, even if you do say yes – and that yes has to be explicit – the second you communicate a change in your mind, all activity must stop. You don’t even have to say no for this to take effect, simply expressing in word or action that you don’t want to continue is enough.
Communication before sexual contact begins is vital – simply stopping when an individual asks you to but never getting consent to begin in the first place is not sufficient.
“You can’t punch someone as much as you want and be insulated from liability because you stopped when they said to,” said recent Western University law graduate Janice Calzavara. “Why would sexual assault have different rules?”
Also, agreeing to one activity doesn’t mean you agree to everything: just because someone is okay with a sloppy make-out session doesn’t mean they’re okay with you going any further. The key is to check every step of the way. Sometimes a person won’t feel comfortable saying stop, either because they think they can’t or are afraid of hurting feelings, but this doesn’t mean they agree. In Canada, silence does not mean consent.
Finally, if a person is incapable of consent, either because they are asleep, intoxicated, passed out or for any other reason, they can’t consent even if they previously gave permission. This means that sweetly kissing your partner while they sleep could be sexual assault – as crazy as that seems.
This was outlined by the Supreme Court decision R v JA in May 2011 that says, “If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent.”
Speaking of booze, mistaken belief in consent stops becoming a legal defense if the accused was intoxicated, reckless or wilfully blind. This means that if you are on notice that the person is not consenting and you don’t ask questions because you don’t want to know the answer, you are as legally culpable as if you knew they were not consenting. On top of that, being drunk and assuming the person is agreeing is no excuse under the law.
For those looking to follow the letter of the law, there are a few simple rules: make sure everyone involved is sober and awake, get them to say yes, communicate and make sure it’s still a yes the entire time and stop the second anyone seems uncomfortable.
