What Consent is in Law

Obtaining and verifying consent is a crucial and nuanced process that requires care, respect, and clear communication to avoid misunderstandings and potential legal consequences

Questions to inspire discussion

Consent Basics

🤝 Q: How should consent be communicated during sexual encounters?
A: Consent must be communicated at the time of each sexual act, not just once, and can be expressed through words or actions, not necessarily verbal enthusiastic consent.

🧠 Q: Who determines if consent was given?
A: Consent is subjective to the complainant's state of mind, as only the complainant can know their own state of mind during the encounter.

Legal Considerations

⚖️ Q: What is the burden of proof in sexual assault cases?
A: The crown must prove beyond a reasonable doubt that the complainant did not consent, but this doesn't necessarily mean the accused is guilty of sexual assault.

🤔 Q: How does the accused's belief in consent factor into cases?
A: The accused's belief in consent is a secondary consideration, but recklessness undermines the mens rea argument.

Factors Affecting Consent

🍺 Q: How does intoxication affect consent?
A: Intoxication can vitiate consent, but only at an extremely high level, which is often misunderstood, especially in university settings.

📝 Q: Is advanced consent, like messaging about sexual acts, valid?
A: Advanced consent is relevant to determining if consent was given at the time of the act, according to Rhyr v. Rhyr, but doesn't guarantee actual consent during the encounter.

Recording Consent

🎙️ Q: Are audio recordings of conversations about sexual acts useful?
A: Audio recordings are highly relevant and can be used to identify voices, authenticate recordings, and establish understanding of what was being discussed.

📹 Q: What are the risks of video recording intimate contact without consent?
A: Video recording intimate contact without prior consent can lead to a conviction of sexual assault, even if the person consented to the act itself.

🎬 Q: How can one safely record consent for video recordings?
A: Recording consent for video recordings is essential to avoid conviction; if the person is aware of and playing up to the camera, they are consenting to the recording.

Best Practices

🔒 Q: Which type of recording is safer for documenting consent?
A: Audio recordings are safer than video recordings as they are less identifying and less likely to be disseminated, but still need context and voice authentication.

📚 Q: What should university education on consent focus on?
A: University education should teach students to be cautious and mindful when interacting with others, especially when intoxicated, and to respect boundaries and decisions.

🏛️ Q: What key legal case highlights the complexities of consent?
A: The JC case in Ontario Court of Appeal is pivotal, showing how a judge's disbelief in an accused's account of actively seeking consent led to a conviction, later overturned.

Key Insights

Consent and Legal Principles

🔍 Consent in law is communicated at the time of each sexual act and is subjective to the complainant's state of mind, as established in the R v. Ewanchuk case.

⚖️ The burden of proof in sexual assault cases lies with the crown to prove beyond a reasonable doubt that the complainant did not consent.

🍺 Intoxication can vitiate consent, but it must be extremely high before consent is no longer valid, contrary to common misconceptions.

Case Studies and Precedents

📜 The JC case in Ontario Court of Appeal highlights the importance of attuning to body language and demonstrating how consent was communicated throughout intimate encounters.

🚫 Advanced consent, such as prior messaging about sexual acts, is relevant to determining consent at the time of the act, as per the Rhyr decision.

Practical Considerations

🎙️ Recording consent can be helpful in establishing consent, especially through audio recordings of conversations about impending sexual acts.

📹 Video recording without consent can lead to a conviction for sexual assault, emphasizing the importance of obtaining explicit permission.

Factors Affecting Consent

🔋 Power imbalance can negate consent, even if someone initially agreed to engage in a sexual act with a person in a position of authority.

🎓 University education on consent is often misleading and may put students at risk, according to the hosts.

Legal Interpretation and Caution

⚠️ The JC case underscores the need to be careful about assumptions and avoid making ungrounded common sense assumptions or stereotypical inferences about behavior in intimate situations.

🧠 Only the complainant can know if they were consenting, and the accused's state of mind is secondary in legal considerations.

🚨 The hosts advise students to avoid intimate contact with anyone who's drinking, due to the complete misinformation surrounding consent and intoxication.

#Justice

XMentions: @HabitatsDigital @NotOnRecord @NeubergerLaw @DianaDavison

Clips

• 00:00 📚 The video discusses consent in law, its components, and importance, emphasizing that it must be obtained and checked in for certain activities.
  • The speaker reveals they wore mismatched socks to work, recalling a past lesson from a mentor on dressing professionally, specifically that socks should match the color of trousers.
  • Dressing respectfully for court, such as wearing a suit and avoiding white socks, is crucial, and what may be considered respectful attire can vary culturally.
  • The discussion will cover consent in law, its components, potential factors that negate it, and the legalities around recording consent, including whether consent can be obtained in advance.
  • When the nature of an activity changes substantially, it's necessary to check in and obtain consent, even if permission was given for a previous action.
• 04:35 💡 In a 1999 Supreme Court of Canada decision, consent in sexual assault cases is determined by the subjective state of mind of the complainant, requiring extra steps to ensure consent after a clear "no".
  • The reference is to a 1999 Supreme Court of Canada decision, 1 SCR 330.
  • In a situation where someone verbally says "no" to advances, extra steps are required to ensure consent is given, and a lack of verbal resistance or continued "no" does not imply consent.
  • Consent is subjective and determined solely by the state of mind of the complainant, not by the perceptions of others.
  • The complainant's subjective claim of lack of consent in a sexual assault allegation is not automatically considered true and is subject to a credibility assessment.
  • In a sexual assault case, the Crown must prove beyond a reasonable doubt that the accused touched the complainant sexually without their consent.
• 09:21 🤝 Canadian court rules that consent can be communicated through actions, not just words or enthusiasm, in a case that sparked debate about consent and communication.
  • A long time means a celebratory reaction, like cheerleaders with pompoms, indicating excitement and joy.
  • In Canada, consent can be communicated through words or actions, and does not require verbal or enthusiastic agreement, with actions being a valid form of consent if they are believed to convey it.
  • A cheerful and consenting client case, known as JC, was discussed, recalling a pivotal Ontario Court of Appeal case.
  • A judge rejected a defendant's claim of obtaining enthusiastic consent through staged and sequential inquiries, deeming it unrealistic, but this rejection was later deemed an error, as it discourages the very behavior that promotes consent.
• 13:06 🤝 Obtaining consent is a nuanced process that requires care to avoid discriminatory assumptions.
  • Intimate relationships can sometimes seem staged, but that doesn't justify always having an offspring-related argument.
  • The speaker interrupts their podcast to ask their family member to share and subscribe to their content, then returns to discussing a case, mentioning someone got an advertisement out of it.
  • Obtaining consent is a nuanced and varied process that requires a careful approach, as assumptions about human behavior can be discriminatory or stereotypical and may not apply in every situation.
• 16:17 💡 Consent can be invalidated by factors like intoxication, and prior discussions about sex can be used to determine if consent was given at the time of an act.
  • The episode is sponsored by EasyDNS, a secure web hosting service that can be accessed using the promo code "notonrecord" for support of the podcast.
  • In a sexual assault case, evidence of a couple's past interactions and communication about consent can be relevant, even if they have an established relationship.
  • You can quickly gauge someone's consent through interaction and testimony, but certain factors can nullify consent even if it's given.
  • There is a significant misunderstanding, especially among university students, about the level of intoxication required to invalidate consent, often leading to miseducation and unfortunate outcomes for all parties involved.
  • Drinking makes consent difficult, so students are advised to avoid intimate contact when either party has been drinking due to misleading information about consent.
  • Advanced consent can be withdrawn at any time, and prior discussions about sexual acts can be considered relevant in determining whether consent was given at the time of the act.
• 22:37 💡 Recording consent and conversations can be crucial in protecting against false allegations and establishing communicated consent, but power dynamics and proper context must be considered.
  • A consent contract detailing specific sexual activities can serve as some evidence of communicated consent, but checking a box does not obligate fulfillment of an act.
  • Recording consent can be invalidated if the person has a position of power, authority, or control over the other individual, such as celebrities, employers, teachers, or coaches.
  • To protect against false allegations, recording conversations, especially audio, can be helpful if done properly with context, such as establishing the person's voice and the conversation's substance.
  • They are having an advanced discussion that is highly relevant.
• 26:40 📹 Recording intimate moments or interactions requires explicit consent, and using such recordings as evidence in a sexual assault case can be problematic and even lead to voyeurism or unlawful recording convictions.
  • Audio recordings of intimate contact can be used as evidence to support a claim of consent and undermine the credibility of the complainant, especially if they contain identifiable voices or conversations.
  • Taking and distributing videos or photographs of someone can be a high invasion of privacy, as it is highly identifying and can be easily shared with unknown people.
  • Recording intimate moments with a partner requires explicit consent, and even with consent, using the recording to establish innocence in a sexual assault case can be problematic if the partner did not consent to being recorded.
  • Recording intimate interactions for protective purposes, even in private spaces, can still lead to a voyeurism conviction if there's a risk of dissemination, despite lack of expectation of public scrutiny.
  • Disclosing a video that shows a complainant lying and consenting to an act on a without prejudice basis to the crown for pre-trial purposes creates a dilemma as the video itself becomes real evidence of a crime, specifically unlawful recording without consent.
  • Navigating can be challenging without being depressing.
• 32:57 🤝 Universities should prioritize consent education, teaching students to respect each other and be mindful of laws, especially regarding recording and interacting with intoxicated individuals.
  • In Canada, there is no statute of limitations on bringing charges for recording someone without consent, which can lead to a conviction, unlike audio recording which is safe.
  • People, especially young ones, should exercise common sense and caution when interacting with someone who's extremely intoxicated, as they may not be in a state to make good decisions.
  • Universities are doing it well in terms of addressing sexual interactions and consent, with value in first-year orientation programs.
  • Universities should teach women to take responsibility for their actions and base consent education on the law, not idealized expectations.
  • Universities must balance education with caution, reminding students to be mindful of consent, respect each other, and stay updated on relevant laws.
  • The speaker thanks viewers for engagement, requests they like, comment, subscribe, and share the content, and reminds them to hit notifications.

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Duration: 0:39:0

WatchUrl: https://www.youtube.com/watch?v=5SJcbmm8VMI

Publication Date:2025-06-15T10:29:38Z

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