Crown starts by explaining consent
Crown lawyer Meaghan Cunningham gets things started by saying the Crown has to prove each of the five men on trial knew E.M. didn’t consent to sexual activity, or that they were wllfully blind or reckless in assessing her consent.
If the men had a mistaken belief that E.M. consented, they “honestly” would have had to have believed she effectively said “‘yes’” through her words or actions.
The honest belief must be that the consent was voluntary, that the voluntary agreement was for specific acts that took place and that it was with the specific person with which the acts took place, Cunningham says.
Being mistaken about what consent is or means is not a defence, she contends.
“If they believe that consent can be given in advance, or that as long as she didn’t say ‘no’ she was consenting, or that consent does not need to be for specific acts, or a belief that consent to someone else is consent for them — none of them are consent in law.”
Reasonable steps must be taken to get consent, the law states, and “greater care” must be taken to get consent if the parties are strangers to one another, or if the complainant is drunk or vulnerable, Cunningham says.
“If a reasonable person would have taken more steps than the accused, then the defence fails.”
