INTRODUCTION AND BRIEF DESCRIPTION
Section 159(3) of the Criminal Code of Canada discusses the circumstances under which an act can be considered in private and the conditions for consent to such acts.
SECTION WORDING
159(3) For the purposes of subsection (2), (a) an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present; and (b) a person shall be deemed not to consent to an act (i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or (ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability.
EXPLANATION
Section 159(3) of the Criminal Code of Canada plays an important role in the definition of several criminal offenses related to sexual conduct. The subsection establishes two principles that limit the circumstances in which certain types of sexual activities can be considered private, consensual, and legal. Firstly, this subsection deems that an act cannot be considered conducted in private if it involves a public place or more than two persons. This means that any sexual activity that takes place in a location where there is a reasonable expectation of privacy, such as a bedroom or a hotel room, and only involves two consenting adults, is considered private and legal. However, if the activity happens in a public space, such as a park or a public washroom, or involves more than two people, regardless of the location, it is considered a public offense and can lead to criminal charges. Secondly, this subsection establishes that consent is not valid if it was obtained under duress or without full understanding of the nature of the act. Consent obtained through coercion, threats, or false representations is not a valid defense against sexual assault or related offenses. Additionally, if the court determines that the victim lacked the ability to give informed consent due to a mental disability, even if they expressed consent, the act is still considered an offense. This section is primarily aimed at protecting vulnerable individuals, such as children, persons with mental disabilities, and victims of sexual violence, from exploitation and abuse. As such, it sets clear boundaries for what is considered private and consensual under the law, and enables law enforcement to pursue and prosecute perpetrators of sexual offenses.
COMMENTARY
Section 159(3) of the Criminal Code of Canada deals with sexual acts between individuals and the conditions under which such acts are considered illegal. It covers two main aspects, the public nature of the act and the issue of consent. The section establishes that for an act to be considered private, it must take place in a private location, and only involve up to two people. Any sexual act that happens in a public place or involves more than two people is not considered private. This provision is aimed at deterring public sexual acts and group sex. Additionally, section 159(3) sets out strict guidelines regarding consent when it comes to sexual acts. A person must give their voluntary and informed consent to any sexual activity. Any non-consensual act is viewed as sexual assault. Consent is based on the mental state of the person giving it, and it can be rendered invalid by force, fear of bodily harm, threats, false representation, or fraud. Additionally, the consent of a person who is mentally incapable, due to disability or otherwise, cannot be considered valid. One purpose of section 159(3) is to safeguard against unwanted sexual activities, which could negatively affect the dignity, privacy, and security of the persons involved. By defining non-consensual acts as sexual assault, the section establishes a clear standard that indicates a lack of consent as a critical element of the crime. The provision also ensures that the person's capacity to give their consent is respected and not taken for granted. At the same time, this section of the Criminal Code raises some issues and challenges. For example, it is not always easy to determine whether consent was genuinely given. This is particularly true in cases where there is no physical evidence or witnesses, and it is merely one person's word against another. The legal system must consider these complexities carefully, particularly when the person alleging the sexual assault experiences psychological damages that impact the remainder of their life. Another challenge concerns the section's scope regarding group sex. Since the act is no longer considered private when more than two people are present, this creates uncertainties. It is essential to provide clarity on the issue to protect individuals' rights and avoid any potential abuse. In conclusion, section 159(3) of the Criminal Code of Canada outlines the conditions under which a sexual act can be considered illegal. It emphasizes the significance of consent and brings clarity to what constitutes sexual assault. While it raises some challenges, the provision is important in safeguarding individuals' rights. It is necessary to strike a balance between protecting individuals and ensuring that the provision is applied fairly and effectively.
STRATEGY
Section 159(3) of the Criminal Code of Canada is a highly controversial provision that deals with the issue of consent in relation to certain sexual acts. Prosecutors and defense lawyers both need to carefully consider this section when dealing with cases that involve non-consensual sexual acts, also known as sexual assault. One of the key strategic considerations for prosecutors is whether they can prove beyond a reasonable doubt that the alleged victim did not consent to the sexual act in question. Given that there are various factors that can affect a person's ability to give valid consent, prosecutors need to focus on gathering as much evidence as possible to demonstrate that the accused acted without the alleged victim's consent. This could include physical evidence such as DNA samples, medical reports, and witness testimony from people who may have seen or heard the alleged assault take place. Another consideration for prosecutors is the fact that Section 159(3)(b)(i) allows for consent to be deemed invalid if it was obtained through force, threats, or false representations. This means that even if the alleged victim initially appeared to be consenting, if it can be shown that they were coerced or lied to, their consent may not be deemed valid by the court. Defense lawyers, on the other hand, may try to use Section 159(3) to argue that their client cannot be convicted of sexual assault because they believed that the alleged victim had given valid consent. This defense strategy is known as "honest but mistaken belief," and it can be difficult to disprove since it relies on the subjective belief of the accused. However, the courts have generally rejected this defense in cases where the accused's belief was based on stereotypes or discriminatory attitudes towards the alleged victim. Another strategy that defense lawyers may employ is to try to discredit the alleged victim's testimony by suggesting that they were not being truthful or were motivated by a desire for revenge or financial gain. However, this approach can be risky since it may come across as victim-blaming or insensitive to the trauma that the alleged victim may have experienced. In conclusion, Section 159(3) of the Criminal Code of Canada is a complex provision that requires careful consideration by both prosecutors and defense lawyers. Strategies such as gathering as much evidence as possible to demonstrate the lack of consent, and challenging the credibility of the alleged victim's testimony, may be employed in order to prove or disprove criminal guilt. Ultimately, the burden of proof rests with the prosecution, meaning that they must demonstrate beyond a reasonable doubt that the sexual act in question was non-consensual.