What is sexual assault?
An offence will be considered a sex offence if violates the sexual integrity of the victim. This means that an offence may be considered a sex offence even if it was not motivated by sexual gratification. Examples of sex offences are sexual assault, sexual assault causing bodily harm, and sexual exploitation. Tragic as sex offences are, a mere accusation does not mean a person is guilty, and that person must be given the benefits of a fair trial.
Sex offences are taken very seriously by Canadian courts, and as a result there is a significant stigma surrounding them This stigma can cause irreparable damage to a person’s reputation. In addition, individuals found guilty of a sex offence will be liable to have unique sentences imposed upon them, such as being listed in the National Sex Offender Registry or the Ontario Sex Offender Registry. If you have been accused of a sex offence, you should always talk to an effective and knowledgeable lawyer, even if you are innocent of the charges laid against you.
Sex offences are an assault which is committed in circumstances that are sexual in nature such that the sexual integrity of the victim is violated. In determining whether an assault is sexual in nature, the court will look to a number of factors, including the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and any other circumstances surrounding the conduct. The court may also look to the motive or motives of the accused, but it is important to note that an assault can be sexual in nature even if the accused was not sexually gratified by it or seeking sexual gratification from it.
What is the difference between sexual assault and rape?
There is no offence of rape under the Criminal Code of Canada. The definition of sexual assault is broad enough to include rape. A person who rapes another person will be charged with sexual assault.
What if the complainant is the person’s spouse?
It is an offence in Canada to engage in non-consensual sexual relations with anyone, even if that person is a spouse or common-law partner.
Applicable Legislation – Criminal Code, s. 265
(1) A person commits an assault when
- Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
- He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has,present ability to effect his purpose; or
- While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
What is consent with regard to sexual assault?
The Criminal Code of Canada defines consent as the voluntary agreement of a person to engage in sexual activity.
There are a number of situations through which consent cannot be obtained, even if the complainant superficially gives consent in the moment. Consent cannot be obtained through force or the threat of force to the complainant or another person. Consent cannot be obtained through the use of fraud that exposes the complainant to a significant risk of serious bodily harm. An example of this would be a person failing to tell a sexual partner about his HIV-positive status. Consent cannot be obtained where a person coerces someone through the use of authority, such as when an employer threatens to fire an employee unless that employee performs sexual activities. All of these situations negate consent in all assault cases, including sexual assault.
The Criminal Code also sets out situations in which no consent can be given specific to sexual assault cases. No consent is given where a person other than the complainant indicates consent. No consent can be obtained from a person who is incapable of giving consent, such as a complainant who was unconscious at the time of the event. No consent can be given when a person abuses a position of trust, power or authority, such as when a person uses feelings of trust in a relationship between himself and the complainant. Finally, no consent is given when the complainant expresses a lack of agreement to engage in the sexual activity. This expression can be through words or the complainant’s conduct. A complainant can also express this lack of agreement after initially agreeing to engage in the sexual activity.
Can an intoxicated person consent to sexual activity?
An incapacitated person is unable to give consent to sexual activity. Intoxication, however, is not necessarily the same as incapacitation. Poor decision-making, memory loss, or loss of inhibition, all of which often accompany intoxication, do not necessarily negate consent.
Applicable Legislation – Criminal Code, s. 265(3) and 273.1
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
- The application of force to the complainant or to a person other than the complainant;
- Threats or fear of the application of force to the complainant or to a person other than the complainant;
- Fraud; or
- The exercise of authority.
273.1 (2) No consent is obtained, for the purposes of sections 271, 272 and 273 where
- The agreement is expressed by the words or conduct of a person other than the complainant;
- The complainant is incapable of consenting to the activity;
- The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Can a person make a mistake about whether or not consent has been given?
If a person is charged with sexual assault, it is possible to defend against the charge by showing the person had an honest, but mistaken, belief that the complainant had given consent. If, however, the person’s belief in consent comes as a result of the person’s self-induced intoxication, recklessness or wilful blindness, or if the person does not take reasonable steps in the circumstances to ascertain that the complainant was consenting, the person will not be able to raise the defence of a mistaken belief in consent.
Applicable Legislation – Criminal Code, s. 273.2
It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge,
the accused’s belief arose from the accused’s
- Self-induced intoxication, or
- Recklessness or wilful blindness; or
- the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
What is the age of consent?
The age of consent in Canada is sixteen (16) years of age. There are, however, two exceptions to this rule. The first exception is that a person who is up to two (2) years older can engage in sexual activity with a person who is twelve (12) or thirteen (13) years of age. The second exception is that a person who is up to five (5) years older can engage in sexual activity with a person who is fourteen (14) or fifteen (15) years of age. For both of these exceptions, however, the older person cannot be in a position of trust or authority toward the younger person, and the relationship cannot be one of dependency or exploitative in nature.
Applicable Legislation – Criminal Code, s. 150.1
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
(a) is less than two years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant
(2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
- is less than five years older than the complainant; and
- is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
What is the maximum penalty for sexual assault?
The maximum penalty for sexual assault depends on whether the prosecutor proceeds by way of indictment or by way of summary conviction. If the prosecutor chooses to proceed by indictment, the maximum penalty is ten (10) years in jail. If the prosecutor chooses to proceed by summary conviction, the maximum penalty is eighteen (18) months in jail.
If, however, the victim of the sexual assault is under the age of sixteen (16) years, the maximum penalty is increased. In these cases, when the prosecutor proceeds by indictment, the maximum penalty is fourteen (14) years in jail. If the prosecutor proceeds by summary conviction, the maximum penalty is two (2) years less a day in jail.
Is there a mandatory minimum penalty for sexual assault?
There are mandatory minimum penalties imposed upon a conviction on sex offences if the victim is under sixteen (16) years of age. If the prosecutor has proceeded by indictment, the minimum penalty is one (1) year in jail. If the prosecutor has proceeded by summary conviction, the minimum penalty is six (6) months in jail.
Applicable Legislation – Criminal Code, s. 271
- Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
What other penalties might be imposed upon conviction?
If a person is convicted of sex offences, the court will make an order that that person comply with the Sex Offender Information Registration Act (SOIRA). This is commonly referred to as a “SOIRA Order”. Under a SOIRA Order, a person will have to provide the authorities with information about his or her identity and whereabouts. The individual will also have to report to a registration centre once every year and inform the authorities every time he or she travels. A SOIRA Order for a sexual assault conviction can be imposed for at least ten (10) years and up to twenty (20) years, though in certain circumstances the duration of the order may be for life.
If convicted of sex offences, a person will also have to provide samples of bodily substances for the purpose of forensic DNA analysis. This is called a “DNA Databank Order”, or simply a “DNA Order”. It is a mandatory penalty upon a finding of guilt for sexual assault.
Applicable Legislation – Criminal Code, ss. 487.051 and 490.012
487.051. (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraphs (a) and (c.02) of the definition primary designated offence in section 487.04 when the person is sentenced or discharged.
490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.
Take the next step
If you have been charged with sex offences, your best approach to the situation is to consult with effective legal counsel. Lakin Afolabi is a criminal defence lawyer in Windsor, Ontario, who has successfully defended many individuals facing sexual assault charges. Contact him today for a consultation.
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