Sexual Assault Charges
In Canada, sexual activity is only legal when both parties consent. The Criminal Code defines consent as the voluntary agreement to engage in the sexual activity in question. Due to the fact that this law relies heavily on the interpretation of a person’s feelings/mindset, whether they be the accused or the alleged victim, each case is essentially context-specific. This article will begin with the most important definitions to understand in the context of sexual assault charges, followed by a brief description of the legal process, and will end with an explanation of the various defences available to someone accused of these charges.
Definition of Consent in Sexual Activity
The Criminal Code stipulates situations where the court is likely to deem that there was no consent. These include, but are not limited to, the following; (1) when someone says or does something that shows they are not consenting to an activity, (2) when someone says or does something that shows they are not agreeing to continue an activity, (3) when someone is incapable of consenting to the activity, (4) when consent is given as a result of an abuse of trust, power, or authority, and (5) when someone consents on someone else’s behalf.
The Supreme Court has also stressed the fact that consent laws should not be based on stereotypes. This means that judges and juries are not supposed to rely on the fact that the alleged victim had consented to sexual activity with someone in the past as a reason for the alleged victim consenting at a future date. This also means that a person’s sexual history should not be used as evidence that such a person must have consented to future sexual acts.
Definition and Classification of Sexual Assault
As per the Canadian Criminal Code, there are several types of sexual assault. The first type of sexual assault is defined by s.265(1): An assault that is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. The second type is called sexual assault with a weapon, is defined by s.272: A person, who when committing sexual assault, (1) carries, uses, or threatens to use a weapon, (2) threatens to cause bodily harm, or actually causes bodily harm. The last one, called aggravated sexual assault, is defined by s.273: Everyone commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures, or endangers the life of the complainant.
Generally speaking, a man who commits forced penetration (or rape) can be charged and prosecuted under any of these sections. It is important to note that there are other sexual crimes that have been divided into the following categories; sexual interference, invitation to sexual touching, sexual exploitation, voyeurism, and more. These other categories will not be discussed in this article.
A Legal Breakdown of the Sexual Assault Offence
The case of R. v. Ewanchuk (1999) provides the elements the Crown must prove beyond a reasonable doubt in order to secure a conviction of sexual assault against the accused.
Specifically, the case states that the actus reus (physical element) of sexual assault is ‘unwanted sexual touching’. More specifically, this is established using the following; (1) touching (or the threat of touching), (2) sexual nature of touching, and (3) absence of consent. It is important to note that ‘unwanted sexual touching’ is determined by applying an objective test, which means the court will take into account how a reasonable person would view the touching. The only subjective part of this test is the part talking about absence of consent, looking at the internal state of mind of the alleged victim at the time of touching.
The case states that the mens rea (mental element) of sexual assault is satisfied when the Crown can prove that there was ‘the intention to touch the complainant or there was recklessness / willful blindness.’
Defences for Sexual Assault
The defence of ‘honest but mistaken belief in consent’ occurs when the alleged honestly, but mistakenly, believed that they had consent to perform the sexual acts in question. Specifically, the Ewanchuk case specified that ‘a belief that silence, passivity, or ambiguous conduct constituted consent is a mistake of law’, meaning that such a belief cannot be used as a defence.
Another defence is that of ‘mistaken identity’. An example of this occurring would be when the complainant was not able to clearly identify the accused. This defence would be successful if the accused proved that they were not present at the time of the offence, or that the identity of the perpetrator cannot be proved beyond a reasonable doubt.
There are a variety of other potential defences that may be applicable depending on the facts of the particular case. These include: that the sexual activity forming the charge was consensual, the accused had an honest but mistaken belief in communicated consent, or that the allegation is a complete fabrication.
Sexual Assault Offences Conclusion
As per s.271 of the Criminal Code, everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more that 10 years (if the accused is over 16 years of age) OR (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 2 years. It is important to note that the other kinds of sexual assault offences will result in a variation of the above-mentioned punishment.
Sexual Assault Charges Winning Defence
It can feel as though you are already guilty just by being accused of a sexual offence. We are familiar with the shame and suffering that come with being falsely accused of a crime you did not commit, and we have defended numerous clients just like yourself.
Our firm has achieved favourable outcomes in numerous sexual assault cases. Alex Karapancev has achieved complete acquittals in a number of trials using his forensic cross-examination techniques without even having to call his client to testify.
To increase your chances of getting a favourable result, you should hire experienced legal counsel as soon as you can after being charged. You can contact Karapancev Law 24 hours a day, 7 days a week, by phone or on our website to discuss any pending sexual assault charges.