Consent and Sexual Assault Causing Bodily Harm: R v Zhao
Can a person legally consent to sexual assault causing bodily harm? In the wake of the Supreme Court of Canada’s landmark decision in R v Jobidon,  2 SCR 714, there remains some confusion regarding how far to extend the broad proposition outlined in that case – namely, that bodily harm cannot be consented to. In R v Zhao, 2013 ONCA 293, the Ontario Court of Appeal clarifies the extent to which the ruling in Jobidon might apply in the context of sexual assault.
Facts and Judicial History
The accused in the case under consideration was convicted at trial of sexual assault causing bodily harm. The accused and complainant were strangers who met outside a nightclub. The complainant accompanied the accused to his apartment, where he eventually initiated sex. When the claimant indicated that she wanted to stop, she was assaulted. She suffered both physical and psychological injuries as a result of the encounter.
At issue on appeal was whether the trial judge had properly instructed the jury regarding the relevance of consent. On the charge of sexual assault causing bodily harm, the trial judge did not explicitly direct the jury “on the need to decide whether the Crown had proven a lack of consent beyond a reasonable doubt” (para 35). In instructing the jury on the included charges of assault and sexual assault, however, the trial judge indicated that the absence of consent was an essential element in proving the offence. In other words, the trial judge strongly implied that the defence of consent was available to the accused for the charges of assault and sexual assault, but not for the charge of sexual assault causing bodily harm, for which he was ultimately convicted.
In a judgment delivered by Justice Tulloch, the appellate court found that the trial judge had erred in failing to apply the court’s earlier decision in R v Quashie (2005), 198 CCC (3d) 337 (Ont CA), in which the defence of consent to the charge of sexual assault causing bodily harm was upheld as valid if the Crown failed to establish that the accused both intended to and actually did cause bodily harm. As these factors were not considered by the jury in Zhao, Justice Tulloch set aside the conviction and ordered a new trial.
Justice Tulloch considered several precedent cases in coming to his decision.
First, he looked at Jobidon, in which the SCC held that the defence of consent is not available in the context of consensual fights where bodily harm is both intended and caused (Zhao, para 53). However, this vitiation of consent is not absolute; there are certain socially useful activities – such as sporting events, medical or surgical treatments, or even tattoos – in which there is no “public policy–based nullification” of consent to bodily harm (para 60).
Next, Justice Tulloch looked at the Ontario Court of Appeal’s controversial decision in R v Welch (1995), 25 OR (3d) 665, in which the Jobidon principle was applied to a case involving sexual assault causing bodily harm. The accused in Welch alleged that he had obtained consent to perform sado-masochistic sexual acts on the complainant. In accordance with Jobidon, the court held that consent was not a valid defence to the charge of sexual assault causing bodily harm (paras 64–65), even assuming that consent could be proven.
However, Justice Tulloch held that the Welch decision should not be taken to mean that consent is “automatically vitiated” in all cases of sexual assault causing bodily harm (para 69). A key factor in the earlier decision was the court’s inability to find a valid social purpose in sado-masochistic relationships. On the contrary, the court held that sado-masochistic acts are “inherently degrading and dehumanizing” (para 71) and for this reason cannot be legally consented to.
Justice Tulloch distinguished Welch from Zhao insofar as there is“no element of sado-masochistic conduct” (para 75) in the latter. Furthermore, he held that neither Jobidon nor Welch provides a general rule for the vitiation of consent in cases involving sexual assault causing bodily harm (para 79). In fact, Justice Tulloch went so far as to (arguably) repudiate the finding in Welch, stating that “it is doubtful that Welch remains good law even in cases involving sado-masochism” (para 98).
The Current Standard
Instead, Justice Tulloch affirmed Quashie as articulating the current standard. In Quashie, the Ontario Court of Appeal held that the defence of consent for the offence of sexual assault causing bodily harm is vitiated only if the Crown proves beyond a reasonable doubt that the accused both intended to cause bodily harm and actually caused bodily harm in a sexual encounter. Crucially, the accused’s intent should be construed subjectively (para 95).
Justice Tulloch proposed a five-step test for instructing juries when considering the offence of sexual assault causing bodily harm (para 107), which I have reproduced verbatim below:
- The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.
- The jury must be satisfied beyond a reasonable doubt that the intentional application of force to the complainant took place in circumstances of a sexual nature such as to violate the complainant’s sexual integrity.
- The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.
- If in addition to the above three criteria, the jury is satisfied beyond a reasonable doubt that the accused intended to inflict bodily harm upon the complainant (a subjective criterion), then consent is irrelevant, and the accused would be found guilty of sexual assault causing bodily harm.
- If the jury is not satisfied beyond a reasonable doubt that the accused intended to cause the complainant bodily harm, then they would need to go on to consider whether they are satisfied beyond a reasonable doubt that the complainant did not consent to the intentional application of force by the accused.
In Zhao, Justice Tulloch corrected the trial judge’s apparently common misapprehension that consent is automatically vitiated in cases of sexual assault causing bodily harm. Instead, he found that the defence of consent is available to the accused only if the Crown fails to prove that the accused both intended to and in fact did cause bodily harm. Thus, Zhao clarifies that, given an air of reality on the issue of consent or apprehended consent in an alleged sexual assault resulting in bodily harm, there is an additional burden on the Crown to prove the accused’s subjective intention to cause bodily harm.
Furthermore, Zhao would seem to suggest that a victim’s actual or perceived consent in certain circumstances could exculpate a defendant accused of sexual assault causing bodily harm. This clarification of the law stemming from Jobidon would appear to place the difficult issue of consent at the centre of a category of cases that might formerly have been decided without reference to the accused’s subjective belief in consent. However, the case also underlines the fact that, in cases where the accused can be reasonably viewed as intending to cause bodily harm, the consent of the victim (whether or not it can be proven) is vitiated.