In a sexual assault case, sometimes the defence is that it didn’t happen at all. In other cases, the accused agrees that the sexual activity happened but says that it was consensual. However, these are not the only two defences to a charge of sexual assaults. In some cases, the complainant was not consenting to sex but the accused honestly, but mistakenly, believed that he or she was consenting. If the defence is successful it will lead to an acquittal.
In order for the defence to succeed, the evidence must show that the accused believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence. The question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions.
The defence does not impose any burden of proof upon the accused and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.
It is not a defence to a charge of sexual assault that the accused’s belief arose from self-induced intoxication, recklessness or wilful blindness or it the accused did not take reasonable steps to ascertain the complainant was consenting. For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”.
Despite these limitations on the defence, it can provide a successful route to an acquittal given the right circumstances.