Area of Law: Criminal Law
Answer # 1845
What is sexual assault?Region: Ontario Answer # 1845
Sexual assault is any unwanted touching of a sexual nature. The touching must be done intentionally (not by accident). Specific sexual assault charges include sexual assault, sexual assault with a weapon, sexual assault causing bodily harm, and aggravated sexual assault. Sexual assault is part of the general assault provision of the Criminal Code, s. 265, and also involves other, special considerations. Both assault and sexual assault apply to violence between spouses and partners. If you believe that you have been assaulted, you should call the police right away. If you have been charged with a crime, it is important to hire an experienced criminal defence lawyer as soon as possible.
First, like all assaults, for an accused to be found guilty of sexual assault, there must be a lack of consent from the person being touched. With sexual assault, there is no such thing as implied consent. This means that the consent of the complainant – the person making the complaint, must be clear. For example, an accused cannot argue that just because the complainant agreed to come into the accused’s room, that this implied (meant) that the complainant also consented to sexual touching.
Second, the touching must be of a sexual nature. This is determined on an objective basis, which means that the judge will ask what an outside, reasonable observer would believe if they saw the touching. There are also several things that a judge takes into account, such as:
- the part of the body that was touched
- the nature of the contact
- the situation in which the touching occurred
- any words and gestures that happened at the same time as the touching
- the intention of the person doing the touching (the reason why they were doing it)
The motive of the person accused of sexual assault does not have to be sexual gratification or pleasure.
A judge will also consider whether the sexual integrity of the complainant has been violated. To make this decision the judge will consider the likely effect of the sexual touching, such as whether it made the complainant feel demeaned.
Finally, the person who did the sexual touching must have done so intentionally. This means that the accused must have acted while knowing that the complainant did not consent to the touching, or while thinking that the complainant might not consent.
Age of Consent
Generally, the age of consent for sexual activity is 16 years. However, the age of consent increases to 18 years if the sexual activity involves prostitution, pornography or if it occurs in a relationship of authority, trust or dependency (such as with a teacher, coach or foster parent).
Sexual assault is a hybrid offence. Under section 271 of the Code, if treated as an indictable offence, it has a maximum penalty of 10 years in prison, or 14 years in prison if the victim was under 16 years old. If treated as a summary offence, the maximum sentence is imprisonment of 18 months, or if the victim is under 16 years old, imprisonment of not more than two years less a day.
Honest Belief in Consent Defence
To be successful in proving the defence of ‘honest belief in consent’, the accused must:
- Show evidence that he or she honestly believed that the complainant consented to the touching;
- Show the reasonable steps he or she took to make sure the complainant was consenting. For example, a reasonable step could be stopping what they were doing and asking the other person how they felt and making sure that they were giving their consent; and
- The accused’s belief must be proved to be reasonable.
The defence of honest belief will fail if the accused’s belief arose because of the:
- Accused’s self-induced intoxication – Being too drunk or high to make sure that someone is consenting is not a defence.
- Accused’s “willful blindness” or recklessness – For example, if the accused did not ask about consent because they did not want to know the answer, this counts as willful blindness. It is sometimes called ‘believing what you want to believe’, or ‘self-deception’.
- Accused failed to take reasonable steps to find out if the complainant was consenting – For example, if there were clear signs that the complainant was not consenting, but the accused went ahead anyway, or if the accused didn’t stop to make sure the complainant consented, a judge will say that this is the same as knowing that the accused did not consent.
Where consent does not exist in law, and no consent is obtained
Consent does not exist in law in the following situations:
- Where someone else, and not the complainant, gave consent for the accused to touch the complainant,
- Where the complainant is incapable of consenting to the activity, such as a person under the age of 16,
- If the accused abuses a position of trust, power or authority to induce the complainant to engage in the activity,
- Where the complainant expresses, by words or conduct, a lack of agreement to engage it the activity, and
- Where the complainant, after having consented to engage in the sexual activity, expresses (by word or conduct) a lack of agreement to continue to engage in the activity.
In addition, consent will automatically be violated in certain circumstances. For example, section 265(3) of the Criminal Code states that consent can’t exist where the complainant agrees to the touching because of threats, violence, or fraud. In some situations, not telling a partner about having a sexually transmitted disease (STD) can be considered fraud. For example:
- If the accused lied about their STD, or did not tell the complainant about the STD, in order to obtain consent; and
- If there was a significant risk of serious harm to the complainant (for example, they could get a serious disease such as AIDS). The risk of harm must be likely, and the harm must be serious. If these two conditions are met, a court will say that there was no consent to the sexual contact.
What to do if charged with sexual assault
If you are charged with sexual assault, it is advisable to hire a lawyer. Usually, after someone has been arrested and charged by the police, they will be released on bail. The accused may have to follow certain conditions as part of the release, such as not contacting the complainant. If the case goes to trial, it take anywhere from 6 months to over a year for the trial to start.
It is the police, not the complainant, who will lay charges, and it is the Crown, not the complainant or their lawyer, who will be in charge of the case against you. The complainant may appear as a witness, but is not involved otherwise and can’t get the charges dropped.
In sexual assault cases, if a judge or jury believes the testimony of the accused or the complainant can be very important. This is because it is often only the testimony of the people involved that can show whether consent was present.
If you are convicted of sexual assault you will be registered on the federal National Sex Offender Registry (NSOR). You will also be registered on the provincial registry where you live. These registries are accessible to the police. The registry will contain your name, your address, photographs of you, and a description of the crime you have been found guilty of. You must report any change of address or other relevant information (such as changing your last name) to keep the registry up-to-date. You can be fined or put in prison for not complying with these requirements. Your information will stay on these registries for a minimum of 10 years, up-to a maximum of the rest of your life.
If you have been charged with a crime, a criminal defence lawyer experienced in representing people charged with sexual assault will understand when and how the defence of honest belief in consent applies to an individual case. As well, with respect to all sexual offences, there are complex rules of evidence that determine whether an accused person and his or her counsel can have access to the private records of the complainant for cross-examination purposes, or similarly whether the evidence of the complainant’s sexual history will be admissible in evidence. When seeking a criminal defence lawyer, it is a good idea to make sure that the lawyer has experience with these areas of criminal evidence.
The penalties for assault vary widely. If you have been charged with assault, or any crime, contact our preferred criminal defence experts, Calvin Barry Criminal Lawyers.
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