What is the test for an apparent consent to sexual touching?
Ontario, Canada
The following excerpt is from PP v. DD, 2017 ONCA 180 (CanLII):
An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant’s conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 at pp. 246-47. For the purpose of this appeal, I will focus only on fraud.
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