Yes it is a crime to have sex with your spouse without their consent.
In assessing whether or not an accused is guilty of sexual assault, a marriage between the accused and the complainant is not a viable defence.
Any sexual activity acted upon without consent is considered sexual assault according to the Canadian Criminal Code.
In the context of marriage if consent is not explicitly expressed it is possible for a spouse to be charged with sexually assaulting their spous.
The definition of sexual assault is very broad, illustrating what would constitute as non-consensual sexual activity.
The definition of consent is found in section 153(3) and (3) of the Criminal Code of Canada:
273(1) meaning of consent- …”consent” means for the purposes of sections 271, 272 and 273,(the sections pertaining to sexual assault), the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) Where no consent is obtained- no consent is obtained for the purposes of sections 271,272 and 273 where
(a) an agreement is expressed by words or conduct of a person other than the complainant; (b)the complainant is incapable of consenting to the activity; (c) the accused counsels or incites the complainant to engage in sexual activity by abusing a position of trust, power or authority; (d) the complainant expresses by words or conduct a lack of agreement to engage in the activity; or (e) the complainant having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
According to the Canadian Criminal Code if convicted of a sexual assault, against your spouse, or any other individual you would be subject to:
s. 271 Everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
A marriage between the complainant and the accused does not prove consent and is not necessarily a mitigating factor for the accused.
However it is possible for the defence to argue that the accused had honest but mistaken reason to believe they had consent to engage in the sexual activity in question.
In any instance where a complainant reports that sexually activity occurred without their consent, the accused would most often be charged with sexual assault.
There are viable defences available to you in the case that you are facing a sexual assault charge, or any other criminal charge. Contact Toronto Criminal defence Lawyers, Kostman and Pyzer for advice.
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