About this episode

The episode discusses the appeal of a sexual assault acquittal focusing on jury instructions regarding mens rea and consent.

In the Alberta Court of King’s Bench, the appellant was acquitted by a jury of one count of sexual assault. The appellant and complainant had three sexual encounters. It is alleged that before the encounters and again before the third encounter, the complainant had expressly stated the condition that the appellant wear a condom, and that during the third encounter, the appellant removed the condom. At trial, the appellant did not pursue the defence of honest but mistaken belief in communicated consent to sex without a condom, which would have amounted to a denial of mens rea for the offence of sexual assault. The trial, therefore, focused on the credibility and reliability of the complainant, which was relevant to whether she subjectively consented to sex without a condom, the actus reus required to secure a criminal conviction in this case, and proof of mens rea for sexual assault where the defence of honest but mistaken belief in communicated consent is not available on the facts.The Crown appealed the acquittal on points of law related to the jury instructions on the mens rea of that offence. It submitted that the trial judge erred in law in failing to instruct the jury that…

Topics covered

• sexual assault
• jury instructions
• mens rea
• consent
• criminal law

Keywords

• sexual assault
• jury instructions
• mens rea
• consent
• Alberta Court

Mentioned in this episode

Organizations: His Majesty the King, Alberta Court of King’s Bench, Crown

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