INTRODUCTION AND BRIEF DESCRIPTION
This section outlines circumstances where consent is not considered valid for sexual activity.
SECTION WORDING
153.1(3) No consent is obtained, for the purposes of this section, if (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
EXPLANATION
Section 153.1(3) of the Criminal Code of Canada is an important part of Canadian law that defines and outlines the concept of consent in sexual activity. This section sets out that consent is not obtained in several situations, including when the agreement is made by someone other than the complainant, when the complainant is incapable of consenting, when the accused abuses their position of trust, power, or authority to coerce the complainant into engaging in sexual activity, when the complainant expresses a lack of agreement to engage in sexual activity, or when the complainant expresses a lack of agreement to continue engaging in sexual activity. This section exists to protect individuals from sexual assault and other forms of sexual violence by clearly defining what is and is not considered consensual sexual activity. It is essential that individuals are able to express their consent to sexual activity freely and without coercion, intimidation, or fear of consequences. By providing a clear definition of what constitutes consent, this section helps to ensure that sexual activity is entered into with the full understanding and agreement of all parties involved. Overall, Section 153.1(3) of the Criminal Code of Canada is an important tool for protecting the rights and safety of individuals in sexual relationships, and serves to promote a culture of respect, consent, and mutual understanding in sexual activity.
COMMENTARY
Section 153.1(3) of the Criminal Code of Canada is a crucial provision in the Canadian legal framework that deals with sexual assault cases. It defines the circumstances under which a sexual act may be deemed non-consensual, thus recognizing the importance of consent in any sexual activity. The section outlines five situations in which consent cannot be deemed to have been granted, rendering the sexual activity in question non-consensual. Firstly, consent is not obtained if the agreement is expressed by someone other than the complainant. This provision is aimed at preventing instances where a third party, such as a guardian or caregiver, could manipulate a complainant into giving consent against their will or judgment. Secondly, the section states that if the complainant is incapable of consenting to the activity, no consent can be considered to have been given. This incapacity could be due to various reasons, including intoxication, disability, or illness, among others. This provision recognizes the vulnerability of some people and the need to protect them from exploitation. Thirdly, the section prohibits sexual activity where the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power, or authority. This provision acknowledges the power imbalances that exist in some relationships and seeks to prevent situations where the vulnerable party is coerced into sexual activity through promises, threats, or inducements. Fourthly, express lack of agreement to engage in sexual activity by the complainant, by words or conduct, is deemed a lack of consent. This provision recognizes the right of every individual to choose what happens to their body and to refrain from any sexual activity they do not want. Lastly, the section prohibits continuing sexual activity that the complainant had initially consented to when they express a lack of agreement to such activity by words or conduct. This provision acknowledges that consent must be continually sought, and an individual has the right to change their mind and withdraw consent at any time. The importance of the section cannot be overstated. It ensures that sexual activity is consensual and recognizes the rights of each individual to their bodily autonomy and self-determination. It also offers protection, especially to vulnerable groups such as the disabled, the elderly, and those under the influence of drugs or alcohol. Additionally, it acknowledges the power dynamics that exist in some relationships and seeks to prevent the exploitation of vulnerable members of society. However, the section has been criticized by some for being too ambiguous and leaving room for interpretation, leading to inconsistencies in its application. There have also been instances where the section has been misused, resulting in the wrongful conviction of some accused persons. In conclusion, section 153.1(3) of the Criminal Code of Canada is a vital provision in the legal framework surrounding sexual assault cases. While it has its shortcomings, it remains a crucial tool in the fight against sexual violence and exploitation. Its continued existence and improvement should be a priority for Canadian lawmakers.
STRATEGY
Section 153.1(3) of the Criminal Code of Canada is designed to protect individuals from sexual assault and unwanted sexual activity. The provision outlines various situations where consent is not obtained, meaning that sexual activity that occurs in these situations is considered to be non-consensual. As such, this section of the Criminal Code is crucial in prosecuting sexual assault cases, as it provides a clear framework for determining whether or not consent was given. When dealing with this section of the Criminal Code, there are several strategic considerations that must be taken into account. These include: 1. Admissibility of Evidence: In order to prove non-consent under section 153.1(3), it is essential to gather sufficient evidence. This may include witness statements, physical evidence, and the testimony of the complainant. However, it is important to ensure that all evidence is admissible in court and obtained in accordance with the law. This may require the use of search and seizure warrants or other legal tools to gather evidence in a lawful and ethical manner. 2. Corroborating Evidence: In cases where the complainant's testimony or evidence may be called into question, it is important to gather corroborating evidence. This may include medical records, forensic evidence, or witness statements. Corroborating evidence can help to support the complainant's version of events and increase the chances of a successful prosecution. 3. Managing Controversy: Sexual assault cases can be controversial and emotionally charged, particularly when the accused is a public figure or an individual in a position of authority. As such, it is important to manage controversy and public perception carefully. This may include limiting media exposure during the investigation and trial, as well as providing support to the complainant and their family throughout the process. 4. Prosecutorial Discretion: While section 153.1(3) provides a clear framework for determining non-consent in sexual assault cases, prosecutors have discretion in how they choose to pursue charges. This may include considering the severity of the offence, the strength of the evidence, and the likelihood of a successful prosecution. Prosecutors may also consider alternative charging options, such as sexual interference or sexual exploitation, depending on the circumstances of the case. In order to effectively deal with section 153.1(3) of the Criminal Code, prosecutors and investigators may employ several strategic considerations. These could include: 1. Gathering evidence of non-consent: This may include witness statements, medical records, and forensic evidence. Investigators may also consider using undercover operations or wiretapping to gather evidence of non-consent in cases where the complainant may be reluctant to come forward. 2. Engaging with the complainant: Building a rapport with the complainant is essential in sexual assault cases. This may involve providing emotional support and ensuring that the complainant feels heard and understood throughout the process. 3. Building a strong case: Prosecutors must build a strong case based on the available evidence and ensure that all evidence is admissible in court. This may involve working closely with investigators and utilizing expert witnesses to bolster key arguments. 4. Developing alternative charging options: While section 153.1(3) provides a framework for non-consent, prosecutors may consider alternative charging options depending on the circumstances of the case. This may include charges of sexual interference, sexual exploitation, or other sexual offences. In summary, section 153.1(3) of the Criminal Code of Canada is a crucial provision in prosecuting sexual assault cases. When dealing with this provision, investigators and prosecutors must consider admissibility of evidence, gathering corroborating evidence, managing controversy, and prosecutorial discretion. By employing these strategic considerations, investigators and prosecutors can build strong cases and ensure that justice is served for victims of sexual assault.