The Defence Of Consent In Civil (Not Criminal) Sexual Assault Cases

The defence of consent comes up regularly in civil litigation where sexual assault has been alleged and the defendant admits there was sexual contact, but says it was not unlawful because the contact was consensual. Most often, consent is raised when the sexual contact occurred between adults.

While it would be highly unusual, if not outright improper, to see consent raised where the person claiming to have been assaulted was a minor at the relevant time, I do sometimes see consent raised in instances where sexualized contact started when a person was a child and continued or resumed after they became an adult. I also see consent raised when the person claiming to have suffered sexual assault was in their late teens at the time of the contact.

It is essential that lawyers on both plaintiff and defence sides, and their clients, know how consent is approached by our civil courts, especially because civil sexual assault cases tend to attract less media attention and scrutiny than their criminal counterparts. Importantly, the defence of consent operates differently depending on whether the sexual assault is being litigated in a criminal or civil context. While there are common principles, there are also critical differences.

CONSENT IN THE CRIMINAL VS CIVIL CONTEXT

My understanding as a civil litigator is that, in criminal law, lack of consent is an element of the offence of sexual assault. What I mean by this is that the Crown, which has the onus of proof in a criminal case, must establish beyond a reasonable doubt that there was:

1. Sexual touching,
2. No consent, and
3. An intention to touch knowing there was no consent, or being reckless or willfully blind as to lack of consent.

This is different from civil law, where the person alleging sexual assault (the plaintiff) has the onus of proof, and must establish on a balance of probabilities that there was intentional sexual touching. The plaintiff need not prove the absence of their consent to this touching; rather, the plaintiff need only assert that the touching was non-consensual. The onus of proof then shifts to the defendant to establish, again on a balance of probabilities, that there was actual consent, or that a reasonable person in their position would have believed there was consent. In other words, it falls to the defendant to prove consent, not to the plaintiff to disprove consent.

This means the defence of consent in a civil case is an affirmative one — if not raised by a defendant, then it is not to be considered.

As a general rule, sexual assault is easier to establish in a civil rather than a criminal case. This is because of the differences in how the defence of consent comes into play and in the burdens of proof. Given that a person's liberty is at stake when they are charged criminally, whereas "only" their pocketbook and reputation are on the line when they are sued civilly, it makes sense that proving sexual assault in criminal law is more challenging than doing so in the civil context.

In Canada, the leading decision that explains these differences in approach is the civil decision by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd's London v. Scalera, 2000 SCC 24. For a more recent application of the principles in a civil context, I suggest the Nova Scotia decision in A.M.S. v. Wootton, 2016 NSSC 351.

COMMONALITIES BETWEEN CRIMINAL AND CIVIL APPROACHES TO CONSENT

There is also consistency in how consent is approached in our criminal and civil justice systems. Both systems are premised on assumptions about individual autonomy and free will, and where it comes to the defence of consent, both are alive to the circumstances that can make these assumptions unreliable.

In criminal law, the principles that define the common law (or judge-made law) of consent have been codified in legislation — namely, the Criminal Code of Canada. In civil law, these principles are the prerogative of the courts to define and modify as they deem appropriate and necessary.

In both systems, for the defence of consent to be given legal effect, the consent must have been freely given and fully informed. This means that what may look on its face to be consensual sexual activity will not necessarily be treated in law as legitimately or legally consensual.

Historically, consent will be invalidated where any of the following is proven:

1. There was legal incapacity to consent, such as in the case of a minor or a person under disability,
2. The person said to have consented was under duress at the time,
3. Force or threat of force was used to compel or extract so-called consent, and
4. Deceit or fraud was used to compel or extract so-called consent.

It used to be that consent given under the influence of drugs or alcohol was also viewed in law to be invalid. However, the modern approach to consent under these circumstances is a more nuanced one.

Consider the instance of a person who is unconscious when they are touched sexually. That person clearly cannot give free and informed consent to being so touched (nor can they pre-consent while they are conscious).

What about the person who is drunk or under the influence of drugs when they are touched sexually? While the extremes give rise to clear answers, the continuum between the extremes is less clear and highly dependent on the facts. At one extreme, a person so under the influence that they are incapable of understanding or perceiving the situation in which they find themselves will not be capable of giving legally effective consent. At the other extreme, a person who has consumed alcohol or other substances and is drunk or high can consent.

This was explained in the 2017 Toronto police officer case of R. v. Myznik, 2017 ONSC 4392, where the court quoted from an earlier decision that stated:

"Cases where the complainant is said to be incapable [due to] consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision-making, memory loss, loss of inhibition or self control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at time[s]."

UNIQUE APPROACH TO INVALIDATING CONSENT IN CIVIL CASES: POWER AND EXPLOITATION

The Supreme Court of Canada has developed the common law to provide for a separate, and what has become a widely relied upon, ground for finding that apparent or ostensible consent is not genuine or legally valid consent. This ground is based on public policy considerations and a concern not to legitimize consent that was obtained through the improper exercise of power and exploitation — i.e., was coerced.

To understand this ground for invalidating consent, it is best to do so in the context of the civil case in which the Supreme Court of Canada developed it, Norberg v. Wynrib, [1992] 2 SCR 226. This case involved two adults, an elderly male physician and his young adult female patient. The physician prescribed addictive pain killers to his drug-dependent patient in exchange for sexual favours from her. Both the trial judge and the British Columbia Court of Appeal dismissed the patient's claim based on sexual assault and battery on the basis of her implied consent (i.e., no force or threats of force were used by the physician, and her drug addiction had not interfered with her capacity to consent to sexual activity).

The Supreme Court of Canada's disagreement with the lower courts' reasoning was based on the imbalance of power that clearly characterized this relationship and put into question the patient's ability to choose freely. The Supreme Court developed a two-step test which, if satisfied, means what may look on the surface to be consent in fact will in law be "vitiated" (or legally invalidated). This test requires:

1. Proof of "an overwhelming imbalance of power in the relationship between the parties," which the Court said would ordinarily occur in the context of a "special power dependency relationship," such as that of parent/child, psychotherapist/patient, doctor/patient, clergy/parishioner, teacher/student, lawyer/client, and employer/employee; and
2. Proof of exploitation, namely that the defendant abused their power over the plaintiff to advance their own self interest to the detriment of the plaintiff.

Circumstances relied upon by the Supreme Court in Norberg v. Wynrib to determine there was an overwhelming power imbalance undermining the patient's free will to consent included the following: the patient's age, gender, limited education and addiction to drugs, contrasted with the doctor's age, gender, professional status and his specific knowledge of the plaintiff's addiction (i.e., her vulnerability). The Supreme Court concluded that exploitation had occurred because the doctor had abused his power over his patient and exploited information about her weaknesses acquired while he was supposed to be discharging his professional obligations, and he did so in order to advance his own selfish interests related to his sexual gratification.

The Supreme Court of Canada's test for determining in civil cases whether what appears to be consent is true consent and how it applied the test on the facts before it demonstrates that the legal validity of consent to sexualized contact will depend on a careful consideration of the nature of the relationship and the comparative circumstances of the parties to that relationship. While the legal test is clear, the conclusion as to whether there was or was not consent will be dependent on the facts.

Since defendants in civil cases bear the onus of proving consent, their lawyers need to be acutely aware of the power dynamics operating between the parties at the relevant times, and particularly at the outset if there was ongoing sexualized contact. They also need to consider whether their client can be said to have exploited some advantage they held over the plaintiff in order to secure "consent." Where there was inequality that was coupled with exploitation, then the apparent consent will be treated as coerced consent and be of no legal force or effect.

Even if this hurdle to the defence of consent can be overcome for the torts of sexual assault and battery, the defence lawyer must also be mindful whether the defence could falter in relation to another cause of action that may be asserted, such as breach of fiduciary duty. Indeed, there is a line of case law where courts have found that consent operated to defeat liability for the torts of assault and battery, but not for breach of fiduciary duty. This is because of the preeminent importance we as a society attach to fiduciary relationships. Thus, it is conceivable that while a sexualized relationship between adults may be treated as consensual for some purposes, it will not be treated as lawful for other purposes. Examples include where there was sexualized contact between a clergy member and a parishioner, or between a health care or other professional and their client.

The nuances in the defence of consent in the civil context, and its similarities and differences to consent in the criminal context, must be considered by plaintiff and defence lawyers alike. While the case law has clarified the legal framework for consent in civil claims, a fact-specific analysis remains critical to the assessment of liability for the torts of sexual assault and sexual battery.