Consent is not vitiated in all circumstances of sexual assault causing bodily harm

R. v. Zhao, 2013 ONCA 293 requires subjective intention to cause bodily harm before consent for assault bodily harm is vitiated. 

The Court also considered whether (without deciding) vitiation of consent is limited to socially valueless conduct – such as consent fights. Consent might be available as a defence even where bodily harm is intended and caused, as long as the activity has social value – such as intimate (consensual) sexual relations. 

Zhao questions older decisions which made consent no defence in cases involving bondage type sexual activity (see para 79). 

Some might be concerned that allowing consent arguments in sexual assault causing bodily harm matters may allow for the wrongful acquittal of some very nasty characters. Presumably bondage type activity can be measured and if injury is caused by accident a defence raised - here the intentional infliction of bodily harm may be permissible. 

The Court holds:

[107] I do recognize that the articulation in the above guidance uses the term "assault" in the first three steps.  In my view, Gillese J.A.'s decision tree must be read as a whole.  That is, the term "assault", viewed in context, must be taken to mean nothing more than an intentional application of force. It cannot logically mean absence of consent, given the nature of the other steps to be followed.  To suggest otherwise is to misconstrue what Gillese J.A. intended. With this clarification, the test can be broken down as follows:

1.      The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.

2.      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.

3.      The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.

4.      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.

5.       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.

[108] The test from Quashie, as clarified above, demonstrates that consent is not vitiated in all circumstances of sexual assault causing bodily harm, but instead only in those circumstances where bodily harm was intended and in fact caused.  Where the accused did not intend to cause bodily harm, consent is available as a defence, if bodily harm is inadvertently caused.