Area of Law: Criminal Law
Answer # 1847
Historical sexual assault chargesRegion: Ontario Answer # 1847
What is historical sexual assault?
The term historical sexual assault is used to describe a sexual assault that may have occurred in the past.
Under the Criminal Code, the time-limit for bringing a summary conviction offence is six months, but there is no statute of limitations for bringing an indictable offence. Sexual assault is a hybrid offence, meaning the Crown prosecutor will eventually have to elect whether to proceed by indictment or summarily. Hybrid offences are deemed to be (considered to be) indictable until the time that the Crown prosecutor makes an election. Before making an election, Crown prosecutors are very careful to review the case before withdrawing a case. For the case to continue, the Crown is required to elect to try the case by indictment. When such an election is made, the law allows for an accused individual to be charged and convicted of the offence of sexual assault even if it occurred many years ago.
In addition, the Supreme Court of Canada has recognized that victims of sexual assault may not be mentally or physically capable of reporting the crime before the standard six-month limitation period has passed.
What type of evidence is needed?
Historical sexual assault trials are very complex because they are dealing with events that may have occurred many years before the allegation is brought. Finding and evaluating evidence in such cases often necessitates the involvement of:
- private investigators,
- multiple lawyers, and
- expert witnesses.
What law applies?
The criminal law that was in place at the time of the alleged sexual assault is the law that is applied. For example, if the trial involves sexual assault that occurred in the year 1990, the criminal law as it was in 1990 would be applied. Therefore, since the trial is based on the law as it was at the time the offence was committed, it requires lawyers and judges to have a thorough understanding of the law including its’ historical form.
It is also possible for a complainant to bring a civil case for damages suffered because of the sexual assault. In general, the evidence in a civil case must be able to show that the accused’s actions caused the injury to the victim. Specifically, the evidence must show on a balance of probabilities that “but for” the accused’s actions, the injury would not have occurred to the victim. If the accused is found guilty in the criminal trial (which has a higher burden of proof ‘beyond a reasonable doubt’) then it will be used against the accused in the civil trial.
A conviction of historical sexual assault is actually a conviction of sexual assault. As such, the conviction will carry with it the same penalties as those for sexual assault. Therefore, a person convicted of historical sexual assault is liable to imprisonment for a maximum of 10 years. If the victim was under the age of 16, there is a minimum punishment of imprisonment for one year, up-to a maximum of 14 years.
If you have been charged with a crime, a criminal defence lawyer experienced in representing people charged with sexual assault will understand the applicable areas of criminal evidence. The penalties for sexual assault vary widely. If you have been charged with any criminal offence, and need to hire a criminal defence lawyer, contact one of our preferred criminal law experts:
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