What is the legal definition of "Consent"?

This information is not intended to serve as or replace legal advice. Please contact a feminist rape crisis centre, transition house or women's centre to get further information and referrals for legal advice for your specific situation.

Consent must be clearly given every time people engage in sexual contact.

A woman has the legal right to change her mind about having sex at any point of sexual contact. If her partner does not stop at the time she changes her mind, this is sexual assault.

In 1992 a new law was passed that defines "consent" as voluntary agreement to engage in sexual activity with someone. It is popularly known as the "NO MEANS NO" law.

Importantly, the law recognizes that there are certain situations that make giving true voluntary agreement questionable. Such situations include if the person wanting sex with you is in a position of trust or in a position of power or authority over you. For example, teachers or bosses have this sort of position, since they have a say over what grade you get, or if you get to keep your job or will be promoted. The law says that you are the only person who can give permission for yourself. Your boyfriend, father, husband, employer etc. cannot give permission on your behalf. The law says you have the right to stop the activity at any time and just because you agreed to one activity, (i.e. kissing) does not mean you agree to the next thing (i.e. taking your clothes off) . The law also says that you can indicate your non-agreement by what you do (your conduct). This means that a woman doesn't have to say "NO" in order to have communicated non-consent.

The following is the Canadian Criminal Code on consent.

Meaning of "Consent"

from the Criminal Code of Canada
 

273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
1992, c. 38, s. 1.

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.