A CASE STUDY OF CANADIAN, UNITED STATES, ENGLAND AND AUSTRALIAN
LAW ON REASONABLE STEPS IN ASCERTAINMENT OF CONSENT AND
WITHDRAWAL OF CONSENT IN AN ONGOING SEXUAL ACT
REASONABLE STEPS TEST
CANADA
The criminal Code of Canada defines Consent as the voluntary agreement to engage in the sexual
activity in question. 1 The same Criminal code defines the circumstances under which consent is
deemed to have been denied. The situations are; when one does or says something that shows
that they are not consenting to the activity or they are not agreeing to continue with an activity
already starts. Additionally, consent is not given by persons incapable of consenting or when it is
given on behalf of another person and lastly when it is as a result of abuse of a relationship of
trust, power or authority. 2
According to the same criminal code, a defendant may raise the defense of mistaken belief of
consent. The defense is viable on proof of; the mistaken belief was based on intoxication of the
perpetrator or recklessness on distinguishing whether the person was consenting or not or
ignorance of signs inferring lack of consent or failure to take reasonable steps in ascertaining if
there was consent. 3
The reasonable steps test in ascertaining consent is purely objective. The cogency nature of the
reasonable steps claimed to be taken by the defendant are based on the circumstance of the case
and those known to the defendant at the time of the act. 4 The reasonable steps test in
1 Section 273.1 (1) Canadian Criminal Code
2 Section 273.1 of the Canadian Criminal Code
3 Section 273.2 of Canadian Criminal Code
ascertainment of consent has been invoked majorly in instances where the defense raises the
mistaken belief defense. In R v Esau, 5 it was held that the honest belief defense only arises when
the accused proves that he took reasonable steps in assuring that the complainant had consented
to the sexual act. In this particular case, the accused proceeded form massaging the complainant
to sexual contact. The defendant made no effort to inquire on the complainant’s consent. The
assumption that the complainant’s silence was equivalent to consent was declined by the court.
In R v Alboukhari, 6 which involved a sexual encounter between two young people on a camping
trip. The trial judge held that the defendant was not viable to the defense of honest belief. The
decision was later reversed by the Court of Appeal in Ontario but the guidelines on reasonable
steps that was been disapproved on basis of evidence had been set by the trial judge. Epsten JA,
the trial judge had assessed the following circumstances in convicting the defendant. Firstly, that
the appellant was aware of SR’s illness at the time of the act. This was based on the fact that the
appellant was present when SR was vomiting. Secondly, the poor visibility in the tent when the
defendant allegedly sexually assaulted the complainant. The judge based this finding on the fact
that the tent was pitch black and the complainant mistakenly believed the defendant to be her
boyfriend. Thirdly, that the defendant and the complainant’s boyfriend had strikingly similar
features. The judge held that the size difference between the defendant and the plaintiff was
impossible to discern due to poor lighting in the tent.
The above cited case is a useful guideline in the reasonable steps analysis. Even though the
decision was overturned by the Court of Appeal in Ontario, the trial judge’s analysis provides a
useful guideline.
4 R v Barton [2019] SCR 579
5 R. v. Esau, 1997 S.C.R.2 777 (1997)
6 R. v. Alboukhari, 2013 O.N.C.A. 581, 310 O.A.C. 305 (2013).
ENGLAND
The governing statute on sexual assault in United Kingdom is the Sexual Offences Act of 2003. 7
Chapter 6 of the legislation defines and espouses on issues of consent. In 2001, the Supreme
Court defined sexual consent as “voluntary agreement or acquiescence.” 8 The definition was
further clarified in 2013 by the Supreme Court in The People (DPP) v C O’R. 9 The court defined
consent as active communication through words or physical gestures. The reasonable steps test
applied in England is primarily subjective. 10 There is a push for reform in England law since a
subjective test as compared to one on taking of reasonable steps or an objective test is flawed.
AUSTRALIA
Each jurisdiction in Australia has their own laws on sexual assault and sexual offences.
Tasmanian law is the most developed on sexual consent among Australian’s jurisdictions. The
reasonable steps test is adopted in Tasmanian law. 11 Rape requires proof of lack of sexual
consent. The act of penetration must be voluntary and intentional. 12 The Criminal Code provides
that the honest belief of consent defense is not operative when the accused is proved not to have
taken reasonable steps to ascertain consent. 13 This was adopted in the case of Snow v R. 14 The
onus of disproving the defense will lie with the prosecution if the defense is raised. 15 The law on
reasonable steps test is not yet much developed in Tasmania. The reasonable steps test adopted is
the objective test.
7 https://www.legislation.gov.uk/ukpga/2003/42/contents
8 The People (DPP) v C[2001] 3 IR 345 at 360
9 [2016] IESCDET 3
10 ibid
11 Criminal Code (Tas) s 14A
12 Criminal Code (Tasmania) s 13(1)
13 Supra note 12
14 Snow v R [1962] Tas SR 271, 276–277, 279 (Burbury CJ and Cox J), 295–297 (Crawford J).
15 R v Brown [1990] Tas R 46, 57–61
In NSW, the governing statute on sexual assault is the Crimes Act. 16 The rules on consent when
given and when deemed not to be given are analogous to those in Canadian laws. The case that
resulted in Australia’s move for reforms on sexual consent is the Melbourne case. 17 This was a
Sydney rape case. In this particular case, Ms. Mullins, the complainant, asserted that in 2013, she
met Lazarus ate the Sydney nightclub. Mr. Lazarus invited her to see the V.I.P area and guided
her to an alleyway. They began kissing and later Mr. Lazarus told her to kneel down after which
he proceeded to rape her annually. Mr. Lazarus was however acquitted of the charges pushing
for a reform in the laws on sexual consent in Australia.
WITHDRAWAL OF CONSENT IN AN ONGOING SEXUAL ACT
CANADA
In R v Ewanchuk, 18 L’Heureux Dube held that continuing sexual contact after someone had said
“NO” is at minimum, reckless conduct which is not excusable. In R v JA, it was held that sexual
consent can be withdrawn at any time after it is given. 19 Sexual consent is thus a continuing act
dependent on the state of mind of the complainant. Consent to one sexual act does not
automatically infer consent for another sexual activity. The above case involved prior consent
given by the complainant before she lapsed into unconsciousness. It was held that sexual consent
is not an event but a process. 20
UNITED STATES OF AMERICA
16 Crimes Act 1900 (NSW)
17 R v Lazarus [2015] NSWCCA 279
18 R. v. Ewanchuk, 1999 S.C.R.1 330 (1999)
19 R v. JA, 2011 S.C.C. 28, 2011 S.C.R.2 440 (2011).
20 Ibid, par.65
Each of the states in United States has their own governing legislations on sexual assault. In
People v John Z, the Supreme Court of California held that a woman who gives consent in
initiation of a sexual act is not barred from withdrawing the consent at her volition. 21 The old
position in California law was different. In People v Vela, it had been held that prior consent to
penetration inferred consent for any consequent sexual activity regardless of withdrawal of
consent by the complainant. 22 The decision in Vela was however overruled by the recent decision
of People v John Z. 23
In John Z case, the victim had been acquainted with another minor Juan G., for about two weeks,
when he called her to ask for a ride to the minor’s house for a party. The victim assented and
despite initially saying she would not stay because she had other plans, she remained at the party.
The minor and Juan G. drank beer at the party, but the victim did not. During the evening, the
victim and Juan G. went into the minor’s parents’ bedroom where Juan G. asked the victim to
have sex. The victim stated that she was not ready. Sometime later, the minor asked the victim to
talk to him in his bedroom. He told her that Juan G. did not like her, but the minor wanted the
victim to be his girlfriend. Juan G. then entered the bedroom and the minor went to take a phone
call. When the minor returned, he asked if it was her fantasy to have sex with two guys. The
victim replied that it was not, but they began to kiss her and remove her clothing.
The victim resisted, but they began to fondle her breasts and “finger” her. The victim enjoyed
herself at first. The victim objected, though, when Juan G. removed his pants and put on a
condom. He then attempted to have sexual intercourse and she resisted. The encounter ended
when the condom slipped off. Juan G. left the room at that time. The minor then reentered the
21 People v. John Z., 60 P.3d 183, 184 (Cal. 2003)
22 People v. Vela, 11 Cal. App. 5th 68, 218 Cal. Rptr. 3d 1 (Ct. App. 2017)
23 Supra note 21
bedroom. He again began to kiss her, rolled over on top of her and inserted his penis into her
vagina. The minor then rolled over so that the victim was on top of him. The victim tried to pull
away, but the minor held onto her hips. Finally, the minor let her go and the victim went home.
ENGLAND
The sexual Offences Act of 2003 provides that sexual consent is a continuing act from
penetration to withdrawal. 24 The same rules applied in United States and Canada are therefore
applicable in England and the United Kingdom as a whole.
AUSTRALIA
In Kaitamaki v The Queen, it was held that withdrawal of consent can be done at any time since
sexual consent is not an event but a continuing process. 25
24 Section 79 (2) Sexual Offences Act 2003
25 Kaitamaki v The Queen [1985] AC 147
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )
