Sexual assault charges

The concept of consent requires a subjective analysis which can only correspond to the plaintiff’s point of view. Deep down, did she consent to the acts in question?

It is possible that a person has consented to sexual touching, but that their consent is flawed and, therefore, invalid. For example:

• The person is unable to consent;
  
• Consent is not free;
  
• Consent is not informed;
  
• The purpose of the consent is illegal.

In 2011, the Supreme Court determined that, in addition to being real, consent must be active, that is, conscious consent at all times during sexual activity.

Professor Julie Desrosiers summarizes the situation in her treatise:

• a child under the age of 12 can never consent to sexual activity;
• a child between the ages of 12 and 14 (less a day) may consent, but only with a person with whom they do not share more than two years age difference;
• a child between the ages of 14 and 16 (less a day) may consent, but only with a person with whom they do not share more than five years age difference.

These are examples where even if the plaintiff consents, the law declares them unfit to consent.

Depending on the case, a person may have to disclose their state of health (i.e. STBBI) to their partner so that they can make an informed decision before consenting to the sexual act.