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. 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.
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.
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. The reasonable steps test in ascertainment of consent has been invoked majorly in instances where the defense raises the mistaken belief defense. In R v Esau, 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, 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.
ENGLAND
The governing statute on sexual assault in United Kingdom is the Sexual Offences Act of 2003. 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.” The definition was further clarified in 2013 by the Supreme Court in The People (DPP) v C O’R. The court defined consent as active communication through words or physical gestures. The reasonable steps test applied in England is primarily subjective.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. Rape requires proof of lack of sexual consent. The act of penetration must be voluntary and intentional. 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. This was adopted in the case of Snow v R. The onus of disproving the defense will lie with the prosecution if the defense is raised. The law on reasonable steps test is not yet much developed in Tasmania. The reasonable steps test adopted is the objective test.
In NSW, the governing statute on sexual assault is the Crimes Act. 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. 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, 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. 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.
UNITED STATES OF AMERICA
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. 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. The decision in Vela was however overruled by the recent decision of People v John Z.
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 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. 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.
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