Sexual Consent When Under the Influence

By Phillip Millar, Founder of Millars Law

The recent guilty verdict of former Windsor Spitfire, Ben Johnson for the sexual assault of a 16-year-old girl should serve as a lesson of what “consensual sex” means to all Canadians, particularly young males.

While 16 years old is considered legal age in Canada, the question in this case was whether the victim was physically and mentally capable of giving consent. Several witnesses claimed that the victim was severely intoxicated when the 22-year-old Johnson led her into a bathroom stall. He has maintained that all sexual acts performed in the bathroom were consensual.

In this case, witness testimony proved essential in backing the claim that the victim was not lucid enough to give consent. However, too often, there are no credible witnesses to testify and not enough physical evidence to prove sexual assault.

As it is not possible to legally ban sexual relations under the influence of alcohol, the only real way to prevent cases such as Johnson’s from happening is for there to be better education on the meaning of “consensual sex” when there is alcohol or drugs involved.

One starting point is Canada’s Criminal Code (153.1), which expressly states:

(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused’s belief arose from the accused’s

         (i) self-induced intoxication, or

         (ii) recklessness or wilful blindness; or

  (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to                  ascertain that the complainant was consenting.

To put it simply, our sons and grandsons must learn from a young age that when their intended sexual partners are not capable of saying the word, “yes” to sexual relations of any kind, it means “NO”.

If you have been a victim of sexual assault, contact Millars Law for a free consult or call us directly at (519) 657-1529

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