FAQ - Sexual Assault

The standard is whether a reasonable person, in the circumstances that the accused subjectively knew, would have taken more steps than the accused took to ascertain communicated consent to the sexual activity.⁷¹ An accused who makes an unreasonable mistake by failing to perceive certain circumstances could be acquitted if the accused honestly believed that the complainant communicated consent and took the steps that a reasonable person, knowing only the circumstances that the accused knew, would take to ascertain consent.⁷² Six key principles govern this test’s application.⁷³ First, the reasonable person also recognizes that taking further steps to ascertain consent is an easy and straightforward way to respect other people and to avoid gravely wronging and harming other people.⁷⁴ Second, the reasonable person would take more steps if the reasonable person were not believing that the complainant had communicated consent or if the reasonable person were aware of a risk of non-consent.⁷⁵ Third, the reasonable person would take greater care if the accused knows circumstances that require for caution.⁷⁶ For instance, greater care is needed if: the accused intends to engage in an invasive and/or risky sexual activity, such as unprotected sexual intercourse; the accused does not know, is unfamiliar with, and/or has no sexual experience with the complainant; the accused knows that the complainant rejected the accused’s advances before and/or during the encounter; the accused knows that the complainant is or appears to be intoxicated and/or vulnerable, with greater care being needed the more intoxicated and/or vulnerable the complainant appears; and, the accused knows that the complainant is or appears to be unconscious, asleep, or passed out.⁷⁷ Fourth, non-verbal conduct often lacks the clarity of verbal communications and it can be easy to misunderstand or make unfounded assumptions about what another person is trying to communicate through actions unaccompanied by words, especially if people are unfamiliar with each other, meaning that unless those actions unambiguously communicate consent, the reasonable person would take more steps.⁷⁸ Fifth, the reasonable person would take steps to ascertain consent to each sexual act, a requirement which may, depending on the circumstances, require taking additional steps where there are multiple acts and precludes a blanket approach that equates consent to one sexual act with consent to any and all sexual acts, so that confirming that another person has communicated consent to kissing and undressing is not, without more, reasonable steps to ascertain consent to sexual intercourse.⁷⁹ Sixth, because reasonable steps cannot be based on a mistake of law, steps to ascertain communicated consent that are met with silence, passivity, or ambiguous conduct are not reasonable, nor is testing for consent by engaging in non-consensual sexual touching.⁸⁰