Last Updated: February 11, 2011
Most people have heard about how "no means no" when it comes to someone choosing whether to have sexual contact with another person. However, the law actually goes further than that in protecting people from unwanted sexual contact. The law recognizes the right of every person to choose whether to have sexual contact with another person.
There are three levels of sexual assault based on the degree of force used. Sexual assault occurs when a person has been kissed, fondled or forced to have intercourse without their consent. Sexual Assault with a weapon, threats to a third party or causing bodily harm occurs if more than one person assaulted the victim during the incident or the person who assaulted the victim did one of the following things...
- had a weapon, or an imitation weapon and threatened to use it
- threatened to harm someone else (a child or friend of the victim) if they did not consent
- injured the victim during the assault
Aggravated Sexual Assault happens if the victim was wounded, maimed or disfigured during the assault or if their life was endangered.
Sexual assault laws apply to all kinds of sexual contact from a touch to intercourse. Sexual contact without consent is sexual assault. These laws apply to everyone including partners, spouses, people who are dating and people who have had sex with each other on another occasion.
Lack of consent does not have to be verbal. It may be expressed by words or conduct. People are entitled to change their mind about sexual contact at any time. Even if the person initially agreed to the contact they can withdraw their consent at any time. From that point on any further sexual contact would be considered sexual assault.
No always means no and only yes, expressed by words or actions, means yes. A person cannot rely on implied consent as a defence to sexual assault. Unless the person agrees to the activity it is sexual assault, even if they did not fight back. If the person is not capable of giving consent then it is sexual assault to engage in any sexual activity with them.
This applies to situations where a perpetrator has deliberately drugged a victim or gotten them drunk so that they could assault them without resistance. Although media portrayals often involve a victim that has been slipped something like Rohypnol® or GHB, the Society of Obstetricians and Gynecologists of Canada reports that alcohol is actually the most common drug involved in drug-facilitated sexual assault. Depending on the substance used a victim may not only be unable to resist the assault but may also have little or no memory of the assault. Because many substances are processed quickly by the body it is important for anyone who suspects they may have been a victim of drug-facilitated sexual assault to seek medical attention right away.
This law regarding consent does not just apply to situations where someone drugs a victim or gets them drunk. It also applies when a victim voluntarily consumes drugs or alcohol to the point where they are no longer able to give consent. Alcohol and drugs may increase the risk of sexual assault, and may make someone incapable of giving consent or protecting themselves, but they are not the cause of the assault. Anyone who is impaired by alcohol or drugs cannot give legal consent. Taking advantage of a situation where a victim cannot give consent, including things like when a victim is asleep, is sexual assault. When it comes to consent to sexual contact only yes means yes.ISBN/ISSN number: 1918-1728