Sexual Assault Lawyer Explains: Mistaken Belief in Consent

Sexual assault is defined under the Criminal Code of Canada as any form of unwanted sexual contact or activity committed without consent. A sexual assault charge does not depend solely on contact with any specific part of the human anatomy but rather the act of a sexual nature that violates the sexual integrity of the victim.

Hiring a sexual assault lawyer Regina is advisable due to the complexities of every sexual assault charge. A sexual assault lawyer can reliably sift through the evidence, ascertain evidence of consent or lackthereof, and provide expert legal counsel for your sexual assault charge. Call (306) 585-1777 for a free lawyer consultation today!

Understanding Consent and How It Relates To a Sexual Assault Charge

Consent is defined under section 273.1 (1) of the Criminal Code as the voluntary agreement to engage in the sexual activity in question. A person cannot legally consent to sexual activity, subject to some exceptions, if they are underage, not of sound mind or impaired, or otherwise unable to fully understand or communicate their decision. Consult a sexual assault lawyer if you have been accused of sexual assault and want legal counsel to provide further clarification on consent.

Consent Guidelines Applied to Every Sexual Assault Charge

First and foremost, consent may be revoked at any time and it cannot be assumed or implied. The absence of a “no” does not mean a “yes”. Consent must be given at the time of the sexual activity and during the entire duration of the sexual activity. In other words, consenting to one sexual activity does not mean the other party has consented to all sexual activities.

The Law Does NOT Recognize Consent In Sexual Assault Cases Where:

  • The accused used their position of trust, power, or authority to obtain consent
  • Consent was assumed or implied
  • The alleged victim was unconscious, asleep, or intoxicated
  • Consent was obtained by means of threat or coercion
  • Retroactive consent is not recognized by law
  • Consent was obtained in advance of the sexual activity
  • Consent cannot be obtained from an alleged victim under the age of 16, except when specific conditions are met

It’s advisable to get a free lawyer consultation with a sexual assault lawyer when facing a sexual assault charge due to the complex nature of assessing the existence or nonexistence of consent.

Understanding Mistaken Belief in Consent

The Canadian legal system recognizes that individuals may hold genuine but mistaken beliefs regarding consent in cases of sexual activity. This recognition is encompassed within the defence known as "mistaken belief in consent". Get a free consultation with a sexual assault lawyer to determine if this defence might be available for your sexual assault charge.

How Can a Sexual Assault Lawyer Use This Defence Successfully?

The defence of honest but mistaken belief in consent can be used by legal counsel for a sexual assault charge when there is evidence of denial or lack of consent but the accused held an honest belief of consent due to the conduct of the complainant. This defence is not available to legal counsel where the accused knew or should have known that the alleged victim did not consent.

To rely on the defence of mistaken belief in consent for a sexual assault charge, the accused must establish that their belief was honest and held on reasonable grounds. The reasonableness of the belief is assessed based on the circumstances known to the accused at the time of the alleged offence. This includes evidence of conduct by the complainant which could communicate consent. Consult a sexual assault lawyer for your sexual assault charge to further discuss whether there may be some basis for a mistaken belief in consent defence in your case.

This Defence Is Available for a Sexual Assault Charge When The Following Conditions Are Met

  • Proof of a state of ambiguity: Your sexual assault lawyer must provide evidence that explains how the accused may have honestly but mistakenly believed they had consent.
  • Consent was given adequate attention: Your sexual assault lawyer can prove that you recognized the necessity of consent and gave it adequate attention.

Limitations to the Mistaken Belief In Consent Defence

Mistaken belief cannot be based on willful blindness, recklessness, or indifference to the other person's consent. Moreover, legal counsel cannot use this defence for a sexual assault charge if the accused's mistaken belief arises from their own intoxication or if they were aware of facts that would negate consent.

Get a free lawyer consultation with a sexual assault lawyer to determine if these limitations apply to your sexual assault charge. Experienced legal counsel can help to identify strengths and weaknesses associated with your sexual assault charge.

Hire Nicholas Robinson, Sexual Assault Lawyer to Fight Your Criminal Charges 

Nicholas Robinson is a sexual assault lawyer with offices in Regina, Saskatchewan and Toronto, Ontario who is dedicated to creating client-centred solutions. Nicholas attempts to craft legal solutions that match the goals and personal circumstances of each individual client.

Don’t hesitate to call Nicholas Robinson, Criminal Lawyer for a free lawyer consultation at (306) 585-1777 to learn how his legal counsel can help with your sexual assault charge.

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