As an external investigator brought in to investigate allegations of sexual assault, it is often necessary to make a determination as to whether or not the particular activity was consensual. This is one of the most difficult determinations to make, as it requires an assessment of the complainant’s subjective mind at the time of the event. Sexual assaults by their very nature often occur in private without corroborative witnesses and involve alcohol or drugs which affects decision-making, capacity to consent and recollection of the incident.

Recent legislation in Ontario, British Columbia and Manitoba requires universities and colleges to have a sexual misconduct policy in place, and many of these policies provide for an investigation procedure. One of the toughest parts about these post-secondary investigations is that quite often the complainant or respondent (and sometimes both) do not have a clear understanding of consent themselves.

Consent

The test for consent often used in civil sexual assault investigations is described in Kingston General Hospital v. OPSEU, Local 444 (2012 CanLII 57017 (ONLA) :

“”Consent” means voluntary agreement to engage in the particular sexual activity in question […] It must be communicated in a way which permits the person seeking to engage in sexual activity to reasonably believe that agreement to the activity is being freely given.”

Although this particular case is in the civil (employment) law context, the majority of the case law on consent comes from criminal law. The principles of consent are the same when investigating sexual assault from a civil perspective; the primary difference is that the civil standard of proof is on a balance of probabilities, while a criminal sexual assault must be proven beyond a reasonable doubt.

In Canada, the definition of consent is simply: the voluntary agreement to participate in the sexual activity in question. The Supreme Court of Canada in R. v. Ewanchuk (1999) 131 C.C.C. (3d) 481 (S.C.C.) clarified that implied consent was not applicable in cases of sexual assault.  As my colleague Kenda Murphy describes in our Conducting Sexual Harassment and Violence Investigations Course, the Ewanchuk case taught us that it is not about “no”, it is about “yes”.  In 2011, the Supreme Court added that a person could not consent in advance to sexual activity and that a person had to be conscious throughout sexual activity in order to consent to that activity (R. v. J.A. (2011) 2 S.C.R. 440 (S.C.C.)).

Educational Tools for Understanding Consent

Though the definition of consent seems straightforward, it is clear by the number of reported and unreported sexual assaults that the understanding of consent is not universal.

I have come to the conclusion that merely reading the definition of consent, either in the media, in academic literature, or even in well-meaning posters created by educational institutions, is not having an impact on understanding the concept of consent. In order to truly impart the lesson of what consent means, educators will need to get more creative. By producing sensory, experiential and thought-provoking learning tools, educators will have a better chance of their lessons being recalled by students in those moments that matter the most: when sexual activity is contemplated.

Some of my favourite educational tools on consent, include:

• In 2015, the UK Thames Valley Police produced a very simple video, comparing sex to drinking tea. This short, funny, very British video was extremely popular, widely circulated and the message could not have been clearer: “whether it’s tea or sex, consent is everything”.
• In April of this year, the Association of American Universities (AAU) produced a follow-up to their 2015 survey on sexual assault on campuses. This original report was quite remarkable, as it involved a survey of 150,000 students at 27 universities and colleges. The follow-up report, found here, highlighted some of the creative projects undertaken by universities and colleges to teach about consent. Some of those projects included:
• Cornell University: a 20-minute online video and corresponding 60-minute facilitated workshop. A copy of the Cornell video can be found here.
• University of Maryland: a multi-stage training program that requires students to complete a portion of the training online before they arrive at university, a video screened during orientation, and bystander intervention training at the end of the first semester. A description of this program can be found here.
• Rutgers University: an improvisational theatre group that teaches about the issues of consent. A description of the program can be found here.
• The University of Windsor has developed multi-year bystander training workshops which teach students to intervene or interrupt potential incidents of assault. The university is collecting data for academic analyses on the effects of having their students trained in this manner.
• Earlier this summer, while giving a presentation to a group of Canadian universities’ human rights and diversity professionals, I came across a group of young women who were showcasing a virtual reality project that had been developed to demonstrate the complexities of consent. The project, called “Do you NO the limit” had been funded by the YWCA of Montreal and the Quebec government and the women explained that they were on their last rounds of touring their project around to university venues.  The virtual reality concept worked incredibly well as it placed the participant in the awkward situation of being alone with someone who clearly was interested in escalating sexual activity.  The virtual reality participants could choose whether they wanted to participate as the male or female in the scenario. The scenario also demonstrated clearly what it was like to be in either party’s shoes, either attempting to escalate the sexual activity or put the brakes on the activity.

Conclusion

By finding new and innovative ways to teach Canadians that consent is simply the voluntary agreement to participate in the sexual activity in question, educators can impact a whole generation. This can be done through teaching methods that go deeper than just words, so that these important lessons can be readily recalled by students when they are needed the most.

Jennifer White

About the Author: Ottawa-based lawyer Jennifer White has extensive experience in police labour relations and harassment issues.  Jennifer conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.