Quote:
Originally Posted by CorsiHockeyLeague
I don't think anyone's struggling as to how they could possibly recognize consent, only trying to point out that there are realistic corner cases here where it may not be totally clear whether consent has been given or not - or more to the point, cases where two reasonable people who are involved in the same sex activity have different honestly held beliefs as to whether consent exists.
|
Agreed but, in my view, the defence of honest but mistaken belief only arises very rarely: only in cases where the complainant is reacting to the sexual activity in a passive or ambiguous way rather than either actively participating or actively resisting. The only time that this might happen is when the complainant is asleep, afraid of the accused, engaging in BDSM activity, or severely intoxicated (and of course even in these circumstances the accused will have to satisfy the reasonable steps requirement in order for the defence to be available.)
In all other cases, not surprisingly, the complainant will either be actively participating or actively resisting the sexual activity and there simply will not be any room for mistake. The issue at trial in theses cases is factual (two totally inconsistent accounts of what happened: either active participation (consent) or active resistance (non-consent.)