Mistake About Consent to Sexual Activities

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Can someone accused of sexual assault use a defence of an honest belief that the victim agreed to the sexual activity?

In this article, Éducaloi explains the defence of “mistaken belief in consent."

Honest Belief in a Partner’s Consent

A person accused of sexual assault (called “the accused”) can argue in court that he honestly believed his partner agreed to the sexual activity. This defence is referred to as an "honest but mistaken belief in consent."

Anyone who uses this defence must prove he honestly believed his partner consented to the sexual activity.

He must also prove he took reasonable steps to make sure his partner agreed to participate in the activity. In other words, he must show he believed his partner really said “yes” through words, actions or both, and that he did whatever was necessary to make sure his partner consented.

Mistakes That Aren’t Really Mistakes

Sexual consent exists only if it is actually expressed. It can be expressed directly or indirectly. Therefore, a person accused of sexual assault can’t argue he thought his partner’s "no" really meant "yes." This defence won’t work because it is based on what the accused assumed the victim was thinking and not on what the victim actually said or did.

Also, an accused can’t use the defence of an honest but mistaken belief in consent if he was careless or closed his eyes to his partner’s lack of consent.

Finally, this defence isn’t allowed if the accused was voluntarily under the influence of drugs or alcohol and didn’t realize the victim was refusing to participate in a sexual activity.

Important !
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.