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About UsSexual Assault
Please see our article on general assault
Sexual assault is one of the most serious criminal offences in Canada. A conviction or guilty plea to a major sexual assault charge will almost certainly result in imprisonment. If you are charged with sexual assault, or if you believe you are being investigated for sexual assault, it is absolutely imperative that you speak to a lawyer as soon as possible.
In order for a general assault, (i.e. the application of force without consent) to be considered a sexual assault, it must be committed in circumstances of an objectively sexual nature. Please note that while contact with particular parts of the human body is certainly a factor in determining whether the assault was sexual in nature, it is not a necessary prerequisite. Similarly, sexual gratification by an accused is not necessary in order for a sexual assault to have occurred. The factors that a court will consider (none determinative) in deciding whether a sexual assault occurred are as follows:
(a) the body part touched;
(b) the nature of the contact;
(c) the situation in which it occurred;
(d) any words or gestures accompanying the contact, including any threats;
(e) the accused person's intent or purpose, including the presence or absence of elements of sexual gratification;
(f) all other circumstances surrounding the conduct.
Similar to any assault, the issue of consent for a sexual assault is a particularly important one. Consent, generally speaking, means the voluntary agreement of the complainant to engage in the sexual activity in question. Consent to sexual activity cannot be obtained where it is given by someone other than the complainant; where the complainant is incapable of consenting; the complainant is induced to consent by an accused's abuse of trust, power or authority; where the complainant expresses, by words or conduct, a lack of agreement to the conduct, or expresses a lack of agreement to continue in an activity; silence is not consent; and finally, if a complainant to sufficiently intoxicated, he or she may be unable to give consent.
Recent changes in Canadian law raised the minimum age of consent from fourteen to sixteen years of age. However, if the accused is in a position of power, trust or authority in relation to the complainant, the minimum age of consent is eighteen years old.
While presence of consent is one defence to a sexual assault charge, another possible defence is an honest but mistaken belief in consent. The assertion that an accused "believed he/she was consenting" will not be sufficient; there must also be an air of reality to the assertion that the complainant communicated consent, even if it was in fact a mistaken belief. People are required to take reasonable steps to ascertain whether a complainant was consenting, if such consent is not clear. It is also important to note that simply because a complainant and an accused are married, this fact, by itself, may not be sufficient to imply consent to sexual assault, though it certainly is one factor a court can consider.