While the offence of sexual assault can include complicated variations, at its core it involves non-consensual touching of a sexual nature such that the “sexual integrity” of the complainant is violated (as per Section 271 of the Criminal Code of Canada).
The test for whether the assault is deemed sexual in nature is objective: whether a reasonable observer would view it as sexual given the totality of the circumstances. Multiple contextual factors will be considered, such as:
the part of the body touched, the situation in which it occurred, whether the motive for the contact was gratification, etc). Importantly, the offence of sexual assault does not require the sexual gratification of the accused – it is merely one factor among many that the court will consider.
Sentencing for sexual assault can vary depending on the circumstances. However, a simple sexual assault charge can result in a maximum of 10 years in prison. Punishment can be aggravated by the victim’s age at the time of the offence such that if he/she was under the age of 16 years, an accused can face a minimum punishment of one-year imprisonment. Punishment for sexual assault can be more serious (under S. 272) if the person who commits the offence carries, uses or threatens to use a weapon or imitation weapon, threatens to use bodily harm to a third party, causes bodily harm to the complainant, or is a party to the offence with any other person. In these circumstances, the maximum sentence increases to a possible 14 years.
Furthermore, if a firearm is used in the commission of the offence there is a mandatory minimum of 4 years imprisonment and if a firearm is used and the offence is committed in association with organized crime the mandatory minimum can be as high as 7 years (for a second offence). A charge of Aggravated Sexual Assault (S. 273) can be laid if the victim is wounded, maimed, disfigured, or if their life is somehow endangered. A charge of Aggravated Sexual Assault can result in higher mandatory minimums and, in certain egregious circumstances, life imprisonment.
Needless to say, the criminal justice system takes sexual assaults extremely seriously in light of the uniquely negative effects such offences have on victims. Sentencing can be a complicated calculus that an experienced defence counsel can help explain, and protect you against.
As is the case for simple assault charges, the primary defence to sexual assault is that the complainant consented to the contact / touching / sexual activity. As defined by S. 273.1, consent means the “voluntary agreement of the complainant to engage in the sexual activity in question.” Importantly, consent cannot be obtained if: It is expressed by the words or conduct of a person other than the complainant; The complainant is incapable of consenting; The accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority; or The consent is withdrawn at any time by words or conduct. Please note that there is no defence of implied consent.
Consent must also be contemporaneous, ongoing, and conscious. Just because the complainant consented initially does not mean that consent is valid for the duration of the activity. Consent can be withdrawn at any time by the complainant by words or conduct. When determining whether consent existed, the court looks at the complainant’s subjective state of mind at the time of the sexual activity. Consent is not a valid defence to sexual assault causing bodily harm.
The courts have ruled that when the activity involves pursuing sexual gratification by deliberately inflicting pain and bodily harm on another, societal interests trump the personal interests of the individuals. It quickly becomes apparent that the issue of valid consent is far from black and white, cut and dry. Many situations arise where consent is ambiguous and/or difficult to ascertain.
Nevertheless, if any ambiguity exists in the heat of the moment such uncertainty is tantamount to a lack of consent and is regarded as reason alone to cease the activity at issue.Naturally situations do arise wherein the accused held an honest (but mistaken) belief that the complainant had consented to the activity. As such, the law does provide for the defence of ‘mistaken belief’ in consent. The defence of mistaken belief is difficult to prove and cannot be relied upon if the mistaken belief arose from the accused’s self-induced intoxication or willful blindness. The accused must show that they took reasonable steps to ascertain whether the accused was, in fact, consenting. Silence or a failure to resist sexual advances does not provide grounds for a mistaken belief in consent. Again, consent must be active, conscious, and explicit. In this day and age Parliament an the Courts have purposefully set a high standard for consent.
With this in mind, defending yourself against a charge of sexual assault is a challenging task. With the help of an experienced defence counsel, however, a proper defence can be marshalled.
Joshua Clarke, B.A.(Hon.), LL.B.
Criminal Defence Lawyer
Kathleen Kealey, B.Soc.Sc., LLB
Criminal Defence Lawyer
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