Jump to Navigation

Sexual Assault: Too drunk to consent to sex?

Two people meet at a party. The drinks are flowing. They are both buzzing and their inhibitions are lowered. Sex occurs that night but the next morning one of the two says she didn't consent. The police become involved and show up the other person's house to arrest him for sexual assault. He is in disbelief. He thought it was consensual.

Canadian courts have repeatedly stressed that consent must be clear and unequivocal. If a person is too drunk, he or she cannot legally consent to sex. That does not mean, however, that there is no defence available in these circumstances. It is the prosecutor that must prove that the complainant did not consent and prove it beyond a reasonable doubt. In some cases, the complainant may not remember whether she consented or not. The accused may say that he specifically asked for consent and got it. It is only in cases where the complainant was intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate that consent cannot occur. A person has the requisite capacity where she has the ability to understand and agree (or not agree) to engage in the sexual activity in question. This is not a cognitively complex task.

Evidence that might cast doubt on the complainant's level of intoxication include witnesses that saw her just prior or after the sexual activity, photos or videos taken on a smart phone or texts to others showing her level of comprehension during the relevant time. It is critical that such evidence is obtained as early as possible (before it is lost) as it may mean the difference between a lengthy prison sentence, and being placed on the sex offender registry, and an acquittal.

No Comments

Leave a comment
Comment Information
Subscribe To This Blog's Feed Message Our Firm

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an lawyer-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy