Nunatsiaq News
NEWS: Around the Arctic January 11, 2018 - 10:50 am

Legal Ease, Jan. 11

Sex and consent

JAMES MORTON

As everyone knows there has been an explosion of stories in the media about sexual assault and sexual harassment in the workplace, schools and other organizations.

The flood of stories has been quite astonishing, and it’s obvious there was a pent-up weight of information all ready to burst out.

Sexual assault, put most simply, is a sexual touching without consent.

The central focus is on consent. If consented to, sexual activity is lawful and proper, but if not, it is a very serious crime.

Any lawful and proper sexual touching requires that both parties give their consent or voluntarily agree. Consent can only be given by the persons involved and not by a third party.

The relevant time period for determining whether a person consented or not is at the time of sexual contact. Consent is determined by reference to that person’s state of mind towards the sexual touching at the time it occurred.

The question is whether a person who is capable of consenting wanted the sexual touching to occur. with the person it did, in the manner and at the time it did.

That’s why someone who is very drunk cannot consent to sex.

The requirement of consent gives every person who is able to consent control over the sexual touching of their body every time they engage in sexual activity.

Consent is about protecting and promoting the sexual autonomy and personal integrity—both physical and psychological—of every individual.

Consent means that a person can change their mind at any time before, or partway through sexual activity. It gives people the right to limit the type of sexual touching to their body.

A person can decide when they will and will not consent. This means a person who engaged in sexual touching on a prior occasion can decide not to have future sexual contact with the same or a different person.

For consent to be legally valid, the person giving consent must be capable at the time sexual touching occurred. Consent must be reasonably informed, conscious and freely given, with awareness of the proposed actions and consequences.

A person under the age of consent, which, generally put, is 16 years of age, is incapable of giving consent.

A person must be conscious in order to be capable. It is possible for someone to become incapable due to intoxication by drugs and/or alcohol.

Sexual activity is a good thing, but only where proper consent is given.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

 

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