It is extremely serious to be accused of sexual assault. Sexual assault cases are prosecuted more seriously than many other offences. If we are going to have a better understanding of sexual assault in Canadian law, we have to define “sexual assault”.
What is the definition of sexual assault in Canada?
What are the Criminal Code provisions for sexual assault?
Under section 271 of the Criminal Code of Canada, a person can be charged for committing a sexual assault. This section of the Code gives the range of possible punishments. This range will vary depending on how the Crown Attorney chooses to prosecute the case. If the Crown Attorney prosecutes the case by indictment (used in the more serious cases), the accused is liable to imprisonment of up to ten (10) years. If the Crown Attorney chooses summary conviction (less serious cases, and a faster procedure), the maximum punishment is eighteen (18) months in jail. The range of possible sentences will change depending on the age of the victim, or if the accused was abusing a position of trust or authority when committing the assault. For more information on this, see our article on the minimum possible sentence for sexual assault in Canada.
Even though this part of the Code gives the possible sentences for sexual assault, it does not define sexual assault. In fact, it simply says “sexual assault” as though no definition is necessary. In order to know the meaning of the phrase, we have to consider what an “assault” is.
The definition of “assault”
Section 265(1) of the Code gives three examples of when someone assaults another person. The first is when a person directly or indirectly applies force to another person without that other person’s consent. The second is by attempting or threatening to apply force without the second person’s consent. Lastly, if a person is holding a weapon and stops or interferes with another person, that person will be guilty of assault.
How much force is required for an action to be an assault?
Our courts have said that an assault can take place even with the least amount of touching. This is a very broad definition. In fact, this can lead to some very strange consequences. If a person taps someone on the shoulder to get their attention, that would technically be an assault. Another example of an assault would be a father trying to put a scarf on his daughter while she refuses to put it on. The Supreme Court of Canada has recognized the possibility of these absurd consequences, and has concluded that the Government of Canada would not intend for those kind of situations to happen. It is up to the courts to interpret the meaning of “assault” and to give it a clearer meaning over time as different cases come up.
It must be an intentional application of force
It is important to remember that in order for someone to be guilty of an assault, they must have intentionally applied the force used. There have been cases where a person hit another person out of carelessness. In that case, the person was not found guilty of assault, as there was no intention to apply the force. Similarly, in cases where a person has hit another person as a reflex, there was no underlying intention. That person was also not guilty of assault.
An assault that is sexual in nature
Under section 265(2) of the Code, the definition of assault applies to all forms of assault, including sexual assault. From this, we can see that a sexual assault is an assault that is sexual in nature. Put another way, it is an assault that takes place in circumstances that violate the sexual integrity of another person.
What does it mean for an assault to be sexual in nature? Whether the assault is sexual is determined by asking whether a reasonable person, in light of all the circumstances, would say the assault was sexual. In order to determine this, the court looks to many factors, such as the body part that was touched, the situation in which the touching occurred, the words or conduct that happened along with the act, and any other circumstance surrounding the action.
Sexual gratification is not necessary
Some people may think that it is only a sexual assault if it was committed for the purpose of sexual pleasure or gratification. This is not true. There have been cases where a person committed an assault for the sake of disciplining his child. The accused had squeezed his son’s genitals. The courts considered the nature of this form of discipline and found the accused guilty of sexual assault.
In another case, an accused person had touched a person’s breasts and genitals as a joke. Though there was no intent to receive sexual pleasure from this action, the accused was still charged with and convicted of sexual assault. This is important to remember, as many people think that sexual pleasure is a necessary element of sexual assault.
One of the most important elements of sexual assault is that it is unwanted sexual touching. The “unwanted” aspect of the offence is one of the most complex areas of criminal law.
The complainant’s state of mind
To determine whether or not there was consent to engage insexual activity, courts look to the complainant’s state of mind. Of course, judges cannot know for certain what the complainant was thinking at the time of the sexual activity. They will have to look to multiple factors to determine what happened. One of the most obvious sources of information is the complainant’s testimony.
Complainant’s will often testify that they were not consenting to the activity. This is not the end of the discussion, though. It’s very easy for someone to have voluntarily engaged in sexual activity and then claim that there was a lack of consent. Judges recognize that this leads to a risk of wrongful convictions. The judge will not simply take the word of the complainant that she did not consent. The judge will also have to look to other factors to determine whether the complainant did, in fact, consent. This includes the conduct of the complainant at the time. If, after looking at the other factors the judge decides that the complainant did not actually consent, then the judge will have to conclude that the sexual activity was not consensual.
The accused person’s state of mind
The judge will consider only the complainant’s state of mind to decide whether there was any consent or not. The accused person’s state of mind is not relevant when it comes to whether the complainant consented. However, the accused person’s state of mind is not completely irrelevant. If the accused person is guilty of sexual assault, he must know that the complainant is not consenting to the sexual touching. Even if the accused does not know that the complainant is not consenting, he might be reckless about whether or not the person is not consenting. An accused person is reckless when he realizes there is a risk that the touching is not consensual but goes ahead with the touching anyway. The accused might also be “wilfully blind” to the issue of consent. A person is wilfully blind when he recognizes that he should ask questions about whether he has the complainant’s consent but chooses not to ask those questions. In cases where the accused person knows there is no consent or is either reckless or wilfully blind about consent, he is guilty of sexual assault.
Honest but mistaken belief in consent
There might be times when an accused person unknowingly engages in non-consensual sexual touching but is neither reckless or wilfully blind. In this case, the accused person might have honestly believed that the complainant was consenting, even though she was not. This is called the defence of honest but mistaken belief in consent. In order for an accused person to successfully argue this defence, there must be evidence that he honestly believed in the consent. There must also be some sort of ambiguous activity that would have explained why the lack of consent was understood by the accused person as actual consent.
Canadian courts have said that a mistaken belief in consent does not have to be a reasonable mistake, but it does have to be honest. However, courts are more likely going to believe that a mistake was honest if it was also reasonable. Even so, a person should not give up on this defence just because no one else would have made the same mistake. If that person made an honest mistake, no matter how unreasonable, they should not be convicted of sexual assault.
The accused person’s mistaken belief cannot have happened because of the accused person’s self-caused drunken state. This means that getting drunk so that you cannot tell the difference between consent and non-consent is not a good defence strategy.
One other consideration for the honest but mistaken belief in consent defence is the “reasonable steps” requirement. A person who argues that they had an honest but mistaken belief in consent will have to show that they had taken reasonable steps to figure out whether or not the complainant was consenting. What exactly counts as “reasonable steps” will change from person to person, depending on the situation they were in.
Situations where there is no consent
There are situations where even if the complainant says they are willing to go along with the sexual activity, they are not consenting. Section 273.1(2) of the Code gives examples of situations where a person cannot consent. If a person other than the complainant gives consent to the sexual activity, the complainant has not consented. This might happen where a man tells his friend that his girlfriend will have sex with him (the friend). In that case, the girlfriend is not consenting to the sexual activity, her boyfriend is. The friend would therefore be guilty of sexual assault.
A complainant cannot consent when she is unconscious. This might seem obvious, since an unconscious person cannot say “yes” to something. However, this applies to situations where a person agrees to the activity prior to being unconscious. In these situations, there is no consent.
Consent is invalid if the accused person got the consent by abusing a position of trust, power, or authority. Situations in which an employer explicitly or implicitly threatens to fire an employee unless she “consents” to having sex with him is not a voluntary agreement. There is no consent in that situation.
The age of the complainant matters
A person who is under the age of sixteen is incapable of consenting to sexual activity. This is important to keep in mind. Some people think that because a young person says they are okay with engaging in sexual activity, it is not illegal. This is not the case.
There are some exceptions to this rule. If the complainant is 12 or 13 years-old, an accused person who is less than two years older than the complainant might not be guilty of sexual assault. An example of this is a 14 year-old and a 13 year-old engaging in a consensual sexual relationship. Similarly, if the complainant is 14 or 15 years-old and the accused is less than five years older than the complainant, the accused may not be guilty of sexual assault. In both of these situations, for there to be a valid agreement to engage in sexual conduct, the accused person cannot have been in a position of trust or an exploitative relationship with the complainant. Otherwise, the consent is invalid.
What to do if you have been charged
Being charged with sexual assault is one of the most stressful things a person can go through. For a lot of people, they have lived their entire life without even getting so much as a speeding ticket. Now they have been accused of one of the most terrible crimes our society knows. Many times the allegations come from one person, and there is no evidence other than the complainant’s word.
One of the most important steps an accused person can take is hiring the right lawyer. The criminal justice system is complex, and a person should not have to navigate it alone. Lakin Afolabi Law Professional Corporation defends against all types of crimes, but our office is particularly skilled and experienced in defending charges of sexual assault. We take these charges seriously, and are willing to explore every legitimate avenue to an acquittal.
If you or a loved one have been charged with sexual assault, do not approach the process alone. Contact our office for a consultation.