Ottawa Citizen

Wednesday 3 March 1999

Can a young lover avoid legal jeopardy?

Susan Richer
The Ottawa Citizen

Here are some thoughts on the Feb. 26 article, "Implied consent doesn't exist, judges say."

Mothers, lock up your sons! Sisters, hide your brothers! Bring on the saltpeter. Ban the Viagra. Sex is now against the law in Canada.

Consider this situation. A young man decides that the time has come in his relationship to venture into the realm of the physical, maybe even to venture "all the way."

He finds himself in the perfect setting -- somewhere romantic and private -- with the love of his life. The lights are dim, the music is soft. He is about to take the plunge when visions of shackles and bread and water leap into his mind. "No implied consent!" What is he to do? How is our young lover going to proceed without putting himself into legal jeopardy?

Option 1 is to proceed with what he was doing. His partner has shed her clothes, is sipping champagne and her eyes are saying "yes."

This option, of course, is fraught with peril. She could be frozen in fright and throwing back the champagne to prepare herself for the hideous ordeal that appears imminent.

Option 2 is to ask her directly if she is ready for "it." This turns her into an easy lay if she says yes and spoils her fun if she says no.

Anyway, for this to be a valid consent -- that is, a binding contract -- some consideration must pass. So the supplicant poses his question somewhat as follows: "If I take you out to dinner tomorrow night, will you have sex with me now?"

This, of course, is a fatal approach. No matter what the answer to the question, our young man has "communicated for the purpose" and now faces, at the very least, the ignominy of "john school" and, if he persists, jail.

By now, our young man sees that there is only one alternative left and plunges to the floor on one knee to propose marriage. He's only 16 years old, but better marriage than a prison cell. Alas, marriage does not give him the right to have sex without consent -- and some months later on his honeymoon night, he wonders, "What do I do now?"

Susan Richer, lawyer

Copyright 1999 Ottawa Citizen