What ‘Sexual Assault’ Means
Many people do not have a clear understanding about the charge of sexual assault. The charge of sexual assault has a very broad application in Canadian law.
Section 271 of the Criminal Code defines it as any touching of a sexual nature of another person without their consent, where the sexual integrity of that person is violated. That includes unwanted kissing or groping over the clothes, consensual sex with someone too young to give consent, sexual activity with someone who is sleeping or unconscious, sexual activity with someone who is unwilling, as well as disciplining a child by striking them below the waist.
A 1987 Supreme Court of Canada (SCC) decision helped to define sexual assault. It involved a man who went to a neighbour’s home uninvited and put his arms around a 15-year-old girl’s shoulders then grabbed her breasts.
He was found guilty of sexual assault at trial, but that decision was overturned by a provincial court of appeal, which instead found him guilty instead of common assault. The SCC set aside that finding and restored the conviction of sexual assault.
The Court said the test to be applied in determining whether a sexual assault has happened include: “The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force.”
This case established that it is not simply the intention of an accused person which needs to be assessed in determining whether an act is of a sexual assault. Rather, the perception of the victim and outside factors may also be used to determine whether an act amounts to a sexual assault.
For example, if you touch a women’s breasts or buttocks as a “joke” or squeeze a child’s genitals as a punishment, you could be charged with sexual assault.
Sexual violence is experienced by all genders and can occur within a marriage between spouses.
Understanding What ‘Consent’ Means
Sexual assault requires an absence of consent. For the court to find you guilty of sexual assault the Crown must prove beyond a reasonable doubt that the complainant did not give consent. Generally, an absence of consent will be proved by someone testifying that they did not give consent, however, the concept of consent can be complicated. Consent is something that must be expressed and cannot simply be implied. Consent must be expressed in a positive fashion either through words or actions. For example, just because a woman invites a man in for a drink does not amount to consent to engage in sexual activity.
Section 273.1(1) of the Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Silence or passivity does not equal consent. This section of the Code adds that there can be no consent if: the person is unconscious; if they indicate that they do not want to continue with the sexual relations earlier agreed to; if someone is abusing a position of trust, power or authority; or if someone consents on someone else’s behalf.
It may further be a defence to sexual assault if an accused person had a honest but mistaken belief that there was consent. A mistaken belief in consent can occur where the objective circumstances of a situation would have led a reasonable person to conclude that the complainant had given consent.
The bottom line is that sexual assault charges are complicated. If you are convicted of sexual assault, you face a maximum sentence of 10 years in prison if the prosecution proceeds against you by indictment or for 18 months where the Crown proceeds by way of summary conviction.
Many Assaults Go Unreported
Studies have shown that the majority of sexual assaults are not reported to police. The 1999 General Social Survey on Victimization found 78 per cent of sexual assault victims do not report the crime. The survey states the main reason for that is these people felt police would not be able to do anything about the assault, while others feared revenge by the offender or they wanted to avoid publicity.
That has changed somewhat in the last decade, as the #MeToo social media movement is encouraging women to report sexual assaults. According to a 2018 report from Statistics Canada, there were more police-reported sexual assaults in 2017 than in any year since 1998, peaking in 2017 October, which coincided with the rise of the #MeToo awareness.
Some Allegations are Unfounded
While the number of reported cases has risen in recent years, so has the number of incidents deemed to be unfounded. A report from Statistics Canada states that one in seven sexual assaults reported to police in 2017 was classified as unfounded compared with one in five sexual assaults in 2016.
National policing data compiled by The Globe and Mail in 2017 revealed that one of every five sexual assault allegations in Canada is dismissed as baseless. An experienced criminal lawyer knows how to present the defendant’s case in the best light.
The Accused is Generally Known to the Victim
In the vast majority of crimes of sexual assault, the accused is known to the victim. A study found that in 80 per cent of sexual offences in 2002, 41 per cent were assaulted by an acquaintance, 28 per cent by a family member, 10 per cent by a friend, and the remaining 20 per cent were victimized by a stranger. The reticence of victims to speak to the police or seek assistance may be caused by their relationship with the accused.
Allegations of Sexual Abuse Ruin Lives
All allegations of sexual assault come with a serious consequences and stigma, even when the charges are not ultimately proven in court. In addition to the risk of jail, simply being charged with sexual assault can ruin careers or break families apart. Sexual assault charges can be reported in the media where someone will be judged by the mob of public opinion.
Sexual assault convictions may also result in placement on a sex offender database; firearms prohibitions; travel restrictions and/or seizure of your DNA.
Let the experienced lawyers at Dunn & Associates work to help you with these complicated issues and potentially serious consequences. If you have any questions or would like to speak to a lawyer, call us at 403-233-0443.