Am I sexually assaulting my spouse?

Prior to 1983 in Canada, a husband could not legally sexually assault his wife. In January 1983, Bill C-127 came into effect, replacing the crime of rape with sexual assault, and at the same time allowing victims to press charges against their spouses. It doesn’t matter whether you are male or female, anyone can be the victim of a sexual assault. Law enforcement agencies take these charges very seriously, especially as the majority of sexual assaults are committed by people known and close to the victim.


If your spouse isn’t in the mood to have sex or if they tell you they’re feeling uncomfortable it is important to respect their integrity. Consent is an ongoing requirement for sexual activity. If your spouse does not consent, you are not entitled to any sexual activity. And while many of us could not imagine our spouse ever charging us with a crime, it is not only possible but it is their right. The underreporting of sexual assaults is a significant problem in Canadian society.


Be careful though! There is one area of sexual assault law in Canada that is not often publicized: under the law, you and your spouse may be sexually assaulting each other and neither of you might even know it.


In 2011 the Supreme Court of Canada released a new decision clarifying Parliament’s definition of consent. They stated that the legislation requires ongoing consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. None of this is new. However, this means that, under the law, advanced consent cannot be provided, nor can anyone consent to any sexual activity while they are unconscious.


So what? On its surface, protecting unconscious people from sexual activity doesn’t sound like a problem. But not all sexual assaults involve violence or penetration.


Picture a scenario that many Canadians go through every day – my spouse works the night shift while I work days. As I leave to drive to work in the morning I kiss my spouse goodbye, while they remain sleeping. According to the Supreme Court, this is, legally speaking, a sexual assault. What’s more, this would still be a sexual assault even if my spouse asked me to kiss them goodbye before I leave. Will my spouse have me charged? I sure hope not. But be careful- the law currently has a gap for these types of situations.


Ron Ellis is a criminal defence lawyer based in London, Ontario and practices criminal defence law all over Southwestern Ontario, including Grand Bend, Sarnia, Woodstock and Kitchener.

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