Is it a Crime to Have Sex With Your Spouse Without Their Consent?

• Yes it is a crime to have sex with your spouse without their consent.
• In assessing whether or not an accused is guilty of  sexual assault, a marriage between the accused and the complainant is not a viable defence.
• Any sexual activity acted upon without consent is considered sexual assault according to the Canadian Criminal Code.
• In the context of marriage if consent is not explicitly expressed it is possible for a spouse to be charged with sexually assaulting their spous.
• The definition of sexual assault is very broad, illustrating what would constitute as non-consensual sexual activity.

The definition of consent is found in section 153(3) and (3) of the Criminal Code of Canada:

• 273(1) meaning of consent- …”consent” means for the purposes of sections 271, 272 and 273,(the sections pertaining to sexual assault), the voluntary agreement of the complainant to engage in the sexual activity in question.
• (2) Where no consent is obtained- no consent is obtained for the purposes of sections 271,272 and 273 where

(a) an agreement is expressed by words or conduct of a person other than the complainant; (b)the complainant is incapable of consenting to the activity; (c) the accused counsels or incites the complainant to engage in sexual 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 the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

• According to the Canadian Criminal Code if convicted of a sexual assault, against your spouse, or any other individual you would be subject to:

• Sexual assault

s. 271 Everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

• A marriage between the complainant and the accused does not prove consent and is not necessarily a mitigating factor for the accused.
• However it is possible for the defence to argue that the accused had honest but mistaken reason to believe they had consent to engage in the sexual activity in question.
• In any instance where a complainant reports that sexually activity occurred without their consent, the accused would most often be charged with sexual assault.
• There are viable defences available to you in the case that you are facing a sexual assault charge, or any other criminal charge. Contact Toronto Criminal defence Lawyers, Kostman and Pyzer for advice.