The absence of consent is a matter to be determined on a subjective standard at the time the sexual act occurred. Consent is a question of fact to be determined by the judge or jury based on the totality of the circumstances and the credibility of the complainant.
Often, the issue at trial is not whether the sexual act occurred, but whether the sexual act was consented to by both parties. One possible defence is that the complaint is not being truthful about his or her assertion that there was no consent. Another possible defence arises when the complaint didn’t consent, but the accused has an honest but mistaken belief of consent.
The defence of mistaken belief in consent is available where the complaint denied there was consent or there was an incapacity of consent which was interpreted by the accused as consent. The accused must also show that there was evidence of ambiguity or equivocality showing the possibility of mistaken belief as long as the accused was not being willfully blind or reckless as to consent.
In order to make out honest but mistaken belief in consent, the defence requires:
- evidence that the accused believed the complainant was consenting;
- evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
- evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not wilfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to whether she was consenting or not.
Reasonable Steps to Ascertain Consent
To demonstrate an honest but mistaken belief in consent, the accused must show that reasonable steps to ascertain consent were taken and that the complainant communicated consent to engage in the sexual act. What constitutes reasonable steps depends on the totality of the circumstances and is evaluated on a case by case basis.
In order to determine mistaken belief in consent, the judge or jury must determine the circumstances known to the accused at the time of the sexual act. Then, the judge or jury must determine whether a reasonable person aware of the same circumstances would have taken further steps before proceeding with the sexual act.
