The Mens Rea of Sexual Assault: How Jury Instructions are Getting it Wrong
Paul M Alexander and Prof. Kelly De Luca delve into the complex world of jury instructions in sexual assault trials in “The Mens Rea of Sexual Assault: How Jury Instructions are Getting it Wrong.” The authors argue that standard charges for the offence of sexual assault contain a legal error in that they identify knowledge of the complainant not consenting as an essential element of the offence. They further identify issues with the defence of honest but mistaken belief in consent as it concerns the Mens Rea of the offence. This is an intriguing discussion that takes the reader into a complicated world where practitioners must exhibit extreme caution:
"When instructing juries on the law they must use to decide cases, judges commonly rely on published “standard” charges. This article argues that standard charges for the offence of sexual assault contain a crucial legal error: they identify “knowledge that the complainant did not consent” as an essential element of the offence, when that is not an element of the offence at all. More, that part of the standard charges wrongly asks, in effect, what the complainant did to say “no”, rather than looking to the proper question for the issue of honest but mistaken belief in consent: what the complainant did or said to communicate “yes”. The issue of honest but mistaken belief in consent has its own instruction, to be used when there is an air of reality to require it. Otherwise, the only element of mens reais the intent to touch. The Criminal Code was amended in 1992 to change the legal approach to consent from a negative approach to a positive one. In 1999, the Supreme Court of Canada definitively set out the essential elements of sexual assault, in R v Ewanchuk. But the published standard charges have not changed in response to those two foundational moments in the evolution of the law of consent in Canada. This paper examines statute and jurisprudence, R v Ewanchuk, to establish this crucial flaw, and the need for change in standard charges to avoid what can fairly be called wrongful acquittals in cases of sexual assault."