Each partner must consent to a sexual activity, whether it involves touching, kissing or any other type of sexual act. The consent must be clear, informed and given freely. Otherwise, the activity is considered sexual assault.
Consent must be clear
When giving consent, a person can say they’re in agreement with their partners’ actions. They can express their consent through words, an attitude or actions, like a smile.
A person who says or does nothing isn’t consenting to sexual touching. They don’t have to physically resist in order to show they don’t consent.
Also, consent can’t be given by someone else. In other words, the person involved in the sexual activity is the one who must consent to it.
Making sure the partner consents
Partners must take reasonable steps to make sure the other person consents, for example, by asking the person if they agree to take part in a sexual activity or asking whether they’re enjoying the activity.
Consent must be given once again before beginning a different sexual activity.
Saying yes to certain sexual activities, and no to others
A person can consent to certain sexual activities and not to others. For example, a person can consent to a kiss but refuse to have sex.
Saying yes, then changing their mind during the sexual activity
A person can stop a sexual activity at any time. As soon as one person refuses, whether through words or actions, the sexual activity must stop.
Consent must be informed and given freely
There are situations where a person’s consent is invalid because it was not informed or given freely. This is the case where a partner feels forced to agree, or if the partner agrees but isn’t aware of certain major risks.
Force or threats
A person’s consent is invalid if they agree to sexual touching because they’re physically forced to, or have been threatened.
Authority and abuse of power/abuse of trust
A person can consent to sexual activity with a person in a position of authority/trust, such as their direct supervisor or their doctor. However, their consent is invalid if they feel they must agree because the other person is using their position, role or status. A person might be taking advantage of their position even if they don’t have the actual power to penalize the other person.
Also, specific rules apply in the case of teenagers.
Some lies can invalidate consent
A person’s consent is invalid if their partner lies and exposes them to a serious risk of harm or injury. This is the case, for example, if a person living with HIV doesn’t tell their partner about it and there’s a reasonable risk of transmission. The partner’s consent may be considered invalid in this type of situation.
The same applies if a person lies about using contraception and exposes their partner to a risk of pregnancy.
Important: Experiencing stress or sadness because the other sexual partner lied isn’t enough to invalidate consent. For example, if you agree to have sex with a person who says they’re single, your consent to sexual activity is valid even if you later learn that the person is married.
The partner must be able to consent
A person must capable of giving consent in order for their consent to be valid. The law provides certain situations where a person’s consent is invalid.
Person who is asleep or unconscious
A person who is asleep or unconscious isn’t able to consent to sexual touching. Their consent is invalid, even if they gave their consent before falling asleep or losing consciousness.
Severe alcohol or drug intoxication
A person who has consumed alcohol or drugs is usually able to consent to sexual touching, even if impaired. But their consent is invalid if they no longer realize what they’re doing or if they’re unconscious, for example, if they blacked out or have fallen into an alcohol-induced coma.
Minimum age for consent
A child under the age of 12 can’t give valid consent. However, a teen can consent to sexual touching according to certain rules.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.