The defence of honest but mistaken belief in sexual assault cases

Last week, the Supreme Court of Canada rendered a decision in the case of R. v. Barton. This case garnered significant media attention since it went to trial in 2015. Mr. Barton was charged with first-degree murder in the death of Cindy Gladue, and the jury had to make a decision with respect both to murder and to the lesser included offence of manslaughter. If the jury found that Ms. Gladue had died as a result of Mr. Barton sexually assaulting her, then that could form the basis of a conviction for unlawful act manslaughter. The jury acquitted Mr. Barton; the case was appealed to the Alberta Court of Appeal, and finally to the Supreme Court of Canada.

R. v. Barton

One of the issues in Barton was the question of whether the sexual conduct that Mr. Barton engaged in with Ms. Gladue was consensual and if not, whether Mr. Barton had the defence of an honest but mistaken belief in consent. That had to relate to a specific sexual act that Mr. Barton performed on Ms. Gladue, that ultimately caused a laceration in her vagina, resulting in her death from blood loss. The defence of honest but mistaken belief in consent has been discussed in many cases at all levels of court, but today’s ruling in Barton presents a welcome clarification of what that defence really means and, just as importantly, where it does not apply.

First, in Barton, the Supreme Court confirms that even when the accused person has not been charged with sexual assault, where sexual assault forms part of the offence that is charged, evidence regarding the complainant’s or deceased’s sexual history is inadmissible if it is being admitted as evidence that she was more likely to have consented to the sexual activity at issue. In this case, defence counsel had argued that because Mr. Barton and Ms. Gladue had done “similar” sexual activity to the act that ultimately caused her death, it was more likely that she was also consenting at that moment. There was also the argument that because Ms. Gladue was a sex worker who had taken money from Mr. Barton, she was more likely to have consented to that particular act being done to her. The Supreme Court found that before such evidence was admitted, there ought to have been a hearing in front of a judge without the jury present. Previous sexual history is not determinative of consent to any particular sex act at a later time; this applies whether the accused is charged with manslaughter or sexual assault on its own.

Myths about consent

The next thing the Court did was to break down three myths about consent to sexual activity: that implied consent is a defence in Canadian law; that consent can be given broadly and in advance; and that certain women have a “propensity to consent” to sex.

Ms. Gladue was a sex worker, and this was repeated multiple times during Mr. Barton’s trial. The repeated mentions of Ms. Gladue’s occupation left open to the jury the inference that Ms. Gladue was the kind of woman who would generally consent to sex or that she had a “propensity to consent,” which is impermissible reasoning.

Further, according to Mr. Barton, Ms. Gladue had consented to “everything” and this formed part of the basis for the contention that she had consented to the sex act that killed her. That kind of broad, advance consent is not legally valid. The fact that Ms. Gladue was a sex worker and that she had consented to “everything” also did not create any kind of “implied consent” to specific sex acts, either.

Honest but mistaken belief defence

Ultimately, the defence that Mr. Barton tried to rely on was that of honest but mistaken belief in consent. The Court addressed his argument and clarified that “honest but mistaken belief in consent” ought to be properly characterized as “honest but mistaken belief in communicated consent”. Basically, it is not a defence to believe that someone is consenting if they have not actually communicated their consent.

The Court went on to explain the obligations of the accused if he is to use the defence of honest but mistaken communicated consent. The accused person putting that defence before a judge or jury must explain how and why they came to believe that the complainant or deceased was consenting. It is an error of law to assume that a woman is consenting until she says “no.” Instead, the accused must have taken reasonable steps to inform his belief that the complainant or deceased was consenting. The Court declined to list what those steps might be, keeping in mind the dynamic and individual ways that people communicate sexual consent. However, they did clarify what will not count as reasonable steps. The accused person cannot rely on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent. Nor can he “test the waters” by touching the complainant or deceased without consent to see what the reaction is, because that itself would constitute a sexual assault. The Court also noted that the more invasive the sexual activity in question or the greater the risk it poses to health and safety, the more that greater care will need to be taken to ascertain consent. In the end, the Court found that the defence of honest but mistaken belief should not have been put to the jury under the circumstances, because Mr. Barton did not actually take reasonable steps to inform his belief that Ms. Gladue was consenting.

It is important to note that Barton does not create new law. It represents a distillation and clarification of the law regarding consent that has already been argued at all levels of court up to this date. However, the significance of Barton is that it makes it very clear that the threshold for honest but mistaken belief in communicated consent is high enough that at the bare minimum, the accused needs to prove what he did and how he came to believe the complainant was consenting, and importantly, there needs to be some evidence that the complainant communicated her consent. The law has been slowly shifting from “no means no” to “only yes means yes” in the context of sexual assault, and this case affirms that understanding of sex and consent at the highest level of court.

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