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Drunkenness & Capacity to Consent: Sex Assault Charges Stayed

Our criminal lawyer Ms. Williamson recently represented a young man charged with sexual assault. In this case, our client was accused of having sexual intercourse with the complainant where she said she didn’t consent or was too drunk to consent to sexual activity. Multiple witnesses saw the two of them and other individuals at a local pub. She was invited back to the residence where she sat in the hot tub with multiple people. Later, our client and the complainant walked to his part of the residence. She said she didn’t remember anything but awoke to the two of them having sexual intercourse. She said she was scared and fled the area. Our client said she had been drinking and he had as well but that neither of them seemed overly intoxicated. He said she was flirting with him in the hot tub so he asked her if she wanted to go to his room and she said yes. They showered together (to get the hot tub water off of them) and then had sexual contact. He was completely bewildered by her sudden change in behaviour and by her quick departure. He went after her thinking that it was not safe for her to be alone. He couldn’t find her. The next day he was charged with sexual abuse. 

Can Drunk People Consent to Sexual Activity?

This case raises issues of consent and capacity to consent. It is important to understand that according to current criminal justice system drunk people may still consent to sexual activity. Consent is defined in section 273.1(1) and states:

Subject to subsection (2) and subsection 265(3) consent means, for the purposes of sections 271(sexual assault), 272 (sexual assault with a weapon or causing bodily harm) and 273 (aggravated sexual assault), the voluntary agreement of the complainant to engage in the sexual activity in question. 

  1. Consent must be present at the time the sexual activity in question takes place. 

Capacity to consent is addressed in section 273.1(2)(b) which says there is no consent to sexual activity where the complainant is incapable of consenting to the activity. 

This is because consent requires the “conscious agreement of the complainant to engage in every sexual act in the encounter.” In order to consent, you must have capacity. (It is a pre-condition to consent.) The existence of subjective consent requires that the complainant agree and the factors a trier of fact will consider are:

  1. the act;
  2. its "sexual nature";
  3. the "specific identity" of their partner; and
  4. the existence of a choice to refuse to participate in sexual activity.

Incapacity is established where the evidence is shown that the complainant is "incapable of understanding the sexual purpose of the act" or was "not able to appreciate that they may choose to decline to participate in the sexual activity." This means that a person may incapacitate themselves with alcohol or drugs and then be incapable of consenting. However, mere drunkenness does not equate to incapacity. 

Hire a criminal lawyer to help you navigate Criminal Code in sexual assault cases

Effective Defence Strategy

In Ms. Williamson’s case, there was available evidence to consider. Video footage from the pub was critical. It showed the complainant walking and using her hands and arms with no difficulty. She handled her cellphone and debit card in a clearly capable manner. Multiple witnesses at the hot tub described her as drunk. However, she got out of the hot tub on her own accord. She took a towel, gathered her clothes, and walked to the residence. Our client described her using the shower and plugging her phone in. All of these actions demonstrated that while she may be drunk she wasn’t to the point of incapacity. 

Through skillful negotiation and diligence, the charges have stayed. 

Hire a Sexual Assault Lawyer Today

When facing sexual abuse charges, the stakes are exceptionally high, and the need for a seasoned, understanding, and successful defence is paramount. By hiring a sexual assault lawyer today, you gain an advocate who is dedicated to navigating the complexities of your criminal case, ensuring that your side of the story is heard and your rights are fiercely protected. With their expertise in dealing with sensitive and intricate aspects of criminal law, a specialized criminal lawyer provides the guidance and representation necessary to navigate through this challenging time. Don't leave your future to chance; secure the legal support you need to face these allegations confidently.

If you have been charged with sexual assault, contact Alberta Legal today. A seasoned sexual assault lawyer will take reasonable steps to protect you in your sexual assault case.

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