'Reasonable Steps': Amending Section 273.2 to Reflect the Jurisprudence
Criminal Law Quarterly, Vol. 66, Issue 4 (April 2019), pp. 376-387
Posted: 26 May 2018 Last revised: 4 Nov 2019
Date Written: April 17, 2019
This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of section 273.2 in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered.
Keywords: sexual assault, mens rea, reasonable steps, belief in consent, Canada, law reform, statutory bar, s.273.2, sexual consent, criminal responsibility, wilful blindness, recklessness
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