Sexual assault is a criminal offence under s. 271 of the Criminal Code. Sexual assault is defined as any form of sexual contact without the consent of both parties. This includes not only intercourse itself, but unwanted touching or fondling as well.
A potential defence to sexual assault is that the accused had a “mistaken belief in consent.” This defence arises in situations where the accused legitimately and reasonably believed that the complainant was consenting at the time of the alleged assault.
First, the defence lawyer must consider the subjective mental state of the accused at the time that the alleged offence was committed. The lawyer must ascertain the information known to the accused, and consider not only what the accused actually knew at the time of the sexual act, but what they ought to have known.
In general, if a defendant tells his or her criminal defence lawyer that they believed the complainant was consenting, the defence lawyer will want to raise this denfence.
The defence lawyer must also consider the objective component of the defence of mistaken belief before he or she will raise the defence.
The lawyer must ascertain whether a reasonable person, aware of the circumstances known to the accused at the time of the offence, would have taken further steps to confirm that the accused was consenting before proceeding with the sexual activity.
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In other words, the lawyer has to consider whether or not the average person would have been satisfied that the complainant was consenting to the sexual act if they were in the same situation.
If the average person wouldn’t have believed that the complainant was consenting, the mistaken belief claim will not be used as a defence. However, if the lawyer determines the average person would have believed the complainant was consenting, or if the answer is ambiguous, then the lawyer will raise this defence.
Once the defence of mistaken belief is raised, the court will consider all of the circumstances to first assess whether or not the defence has “an air of reality,” and determine what information to believe.
The decisions made by the court are akin to those made by the lawyer when determining whether or not to use this defence.
On the basis of the information that the court accepts as true, the court will determine that the accused genuinely believed the complainant was consenting at the time of the offence (the subjective component), and that a reasonable person, in the same circumstances as the accused and with the same knowledge as the accused had at the time, would have been satisfied that the complainant was consenting to the sexual act.
If the court has any reasonable doubt, the benefit of doubt must go to defendant.
There are some limits of the defence of mistaken belief in consent.
1.If the accused’s belief in consent arose from the self-induced intoxication, recklessness, or willful blindness, the defence of mistaken belief will not be available.
2.Before raising the defence, the accused must first show that they took reasonable steps to ascertain whether or not the plaintiff is consenting. This is a procedural hurdle the defendant’s criminal defence lawyer must get through before he or she can raise this defence.
The defence of mistaken belief in consent often comes down to what criminal defence lawyers call a “battle of credibility.”
Only the accused and the complainant can ever really know what happened during the sexual encounter. Thus, the legal question of whether or not the complainant consented invariably comes down to a question of who the court chooses to believe: the complainant or the defendant. Presenting a clear and consistent testimony of what happened is the defendant’s best bet for being believed in the court room.