In recent months, a number of plucky tech upstarts have turned their collective attention to the problems we are facing with regards to sexual assault and consent. While some app developers have encoded apps to help victims seek therapy, support and community, others have attempted to create apps to allow parties to sign a contract indicating they agree to sex. Yes, we really do live in a world of sex-contracts.

Presumably, if nothing goes wrong and both parties are still feeling amorous after an awkward negotiation of terms and conditions, these sorts of agreements are harmless. But what if something did go wrong and there was an accusation of assault, and a criminal trial resulted, what would the value of such agreements be to a court of law?

The Law of Consent in Canada

In Canada, consent must be given to sexual contact, proceeding with sexual contact without consent may constitute the offence of sexual assault. The law surrounding consent to sex can be found in the Criminal Code, at section 273.1;

273.1  (1) Subject to subsection (2) and subsection 265 (3) , consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(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 induces 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.

So according to the statute, the party must voluntarily agree to the specific sexual activity. It also enumerates a number of situations where consent given was invalid, notably including a complainant being incapable of consenting. The Code also explicitly stated that a party can withdraw consent mid activity.

The Supreme Court has considered the concept of “Advance Consent” in a case where victim fell unconscious during sex as a result of erotic asphyxiation she had consented to.

The court found that the Code provisions did not allow for advanced consent. Consent was required at all points

See https://legalfling.io/ for an example of this phenomenon. Alternatively, for CBC coverage, visit https://www.cbc.ca/news/technology/metoo-consent-app-phone-sex-1.4493196.

Criminal Code, RSC 1985, c C-46.

R v J.A. [2011] SCJ No. 28, [2011]2 SCR 440 (SCC).

of a sexual encounter and an unconscious person was incapable of giving their consent. Likewise, consent is only valid for the particular type of sex act that is engaged in, for example a victim consenting to oral sex, would not excuse an accused charged with a vaginal penetration sexual assault.

Practical Considerations

The current law of sexual assault and consent leave much to be desired in terms of the functionality of these apps. First of all, by consenting to sex at the beginning of an encounter, a party can withdraw their consent at any time and demand the sexual activity stop, the app only proves consent at a very specific point in time. They offer absolutely no evidence that a party did not withdraw their consent mid encounter. Furthermore, some of the apps do not give you an option to further specify the type of sexual contact, and all types of contact require consent.

One would presume that this sort of app is unlikely to be used by long-term romantic partners, as such the only practical point of use for this technology is for “hook-ups”. Considering that a large proportion of “hook-ups” feature alcohol (or other intoxicants), the issue of capacity or losing consciousness comes to mind. Presumably an exceptionally intoxicated incapable person is no more able to enter into a contract than they are to consent to sex.

Reasonable Doubt

One potential “use” for these apps is that they may be able to assist in a trial by introducing a reasonable doubt that the alleged victim consented. However, that may not be particularly effective. Equally probable as introducing a reasonable doubt, would be for a Crown Attorney to argue that an accused knew the victim was in a state of extreme intoxication incapable of giving consent so they used the app as a clunky attempt at a “Get out of Jail Free” card. Alternatively, an illegible signature may work against an accused and be used as evidence to show that the victim was incapable of consenting. Finally, there appears to be no way to demonstrate definitively that both parties actually signed the agreement. Nothing is stopping an entrepreneurial rapist from scribbling a random approximation of a person’s signature in an attempt to cover their tracks, any evidence produced would be circumstantial at best and as such may not be accepted as admissible by the courts.

While we live in a world where the concerns of women regarding consent are finally becoming a part of mainstream discourse, there remains an urge to find a quick fix. Perhaps instead of looking for a quick definitive proof of consent (impractical in any human relationship) we as a society take a pause and have a meaningful conversation with our prospective partners and learn to notice the signs that someone is incapable of consenting to sexual activity.

Disclaimer: Use of this site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for non-profit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.

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Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.