Consent must be explicitly communicated and cannot be inferred, implied or surmised. (Photo: iStock)
Some people enjoy having a good time at a party, a bar or a club. At times like these, it is not unusual for two people to become friendly, perhaps even intimate. Having a few drinks and then engaging in consensual sexual activity is familiar territory for many men and women.
The key word in the previous paragraph is ‘consensual.’ In order for a sexual encounter to be lawful, both parties must give their consent.
Consent, as defined by law, is actually quite straightforward. It must be explicitly communicated and cannot be inferred, implied or surmised. There are no actions or behaviours that can legally substitute for a voluntary agreement to sexual activity.
“I did what last night?”
Alcohol can have a major effect on some people’s inhibitions. Those who drink until they are inebriated quite often end up telling stories about the things they cannot believe they did. Sometimes other people have to tell the stories for them, because the hero of the story can’t remember what happened. Most often, the activities are harmless - embarrassing perhaps, but harmless.
The point is that drunken people frequently make bad or uncharacteristic decisions because they lose the ability to care about the consequences. In cases of extreme intoxication, they may be entirely incapable of making any decisions at all. This is why it is illegal to drive while impaired.
Where this all gets tricky is when sexual activity occurs. Any person who has been intoxicated, or seen the actions of others who are, knows that good decisions are hard to come by from someone who’s been drinking. While a drunk person may be capable of the act, can he or she legally give consent to participation?
How much is too much?
Obviously, a person who is unconscious can neither express consent, nor say no. Not being able to say no doesn’t matter: the law says that only explicit consent means ‘yes.’ Sexual contact with an unconscious person is sexual assault, even with prior consent.
Canadian law does not stipulate a point at which a person is too drunk to give consent, however. By the letter of the law, that person need only be conscious and uncoerced to be in a position to give explicit consent.
That lack of a precise definition has played a part in numerous sexual assault trials. In a case tried in Nova Scotia in this year, a judge acquitted a taxi driver of sexual assault on a woman in his cab who had a blood alcohol level far above the legal limit for driving. Although the woman was unconscious when police officers happened on the scene, she was known to have been conscious and making decisions before entering the taxi. Believing the prosecutors had failed to prove she did not give him consent, the judge dismissed the charges against the defendant.
Since the Criminal Code doesn’t provide a clear definition of incapacity other than unconsciousness, it is left to judges to make a decision based on their own interpretations. Current legal precedents indicate that, in the eyes of the law, an intoxicated person can give consent.