Defences Available If You Are Facing Sexual Assault Charges

There can be many variables that go into building an effective defence in a sexual assault case. Sexual assault is a serious crime and determining the best options available before a trial will depend on the particular facts of the allegations. Because of the nature of the crime, courts are less inclined to make a deal with an alleged offender so it is vital to have an experienced lawyer who can navigate what is a complex legal landscape.

Being faced with conviction for any crime is stressful and can have a profound effect on your life and personal relationships. However, a charge of sexual assault can be especially stigmatizing and the penalties are harsh. If you are found guilty, there is the very real possibility that you will be incarcerated. How you choose to defend yourself could have a lasting impact on your future so you need a lawyer who will work tirelessly on your behalf. Contact my office for a free initial consultation today so I can explain how I can help you.

What do I need to know when building a defence?

At its core, there are only a few defences available when facing a charge of sexual assault: the sexual activity was consensual; no sexual activity occurred; or it is a case of mistaken identity. It may also be possible to argue the defendant lacked the mental capacity to form the intent necessary to commit the offence.

A sexual assault case invariably comes down to a he said/she said scenario. It should be noted that the charge has been pursued as a way to shame or punish another person. In fact, in 2017 Statistics Canada found 14 per cent of sexual assaults reported to police were classified as unfounded after it was “determined through police investigation that the offence reported did not occur, nor was it attempted.”

Defending a case when an assault did not take place or if it is a case of mistaken identity would require an alibi, or proof that you were not present when the alleged crime occurred. Merely claiming you were not there at the time of the incident will not suffice. You need such evidence as receipts or other documents that show you were not with the alleged victim at the time. Corroboration from credible witnesses could also be used in your defence.

Establishing whether sexual activity was consensual can be complicated and is an essential consideration in any allegation of sexual assault. Implied consent such as the alleged victim’s silence or inaction is not a defence for sexual assault, as the Supreme Court of Canada established in R. v. Ewanchuk.

According to ss 273.1(2) of the Criminal Code consent is not given:

  • where the agreement is expressed by a person other than the victim;
  • where the complainant is incapable of consenting;
  • where the accused abuses a position of trust, power or authority to induce the victim to engage in the activity;
  • where the victim expresses, by words or conduct, a lack of agreement; or
  • where the victim, having consented to engage in sexual activity, communicates by words or conduct their decision to discontinue to engage in the activity.

There is no statute of limitations for sexual assault offences. If more information is received, unsolved cases can be reopened and can lead to charges.

What does the Crown need to prove?

To prove the case and secure a conviction, the Crown prosecutor must prove beyond a reasonable doubt that you committed the offence. There are two basic elements of any crime — a wrongful act committed by the accused and an accompanying intention to commit the offence, known as mens rea.

Under Canadian law, any touching of another person without their consent where the contact is of a sexual nature, or where the sexual integrity of the victim is violated, is considered a sexual assault. It can include forced or unwanted touching, kissing, anal or vaginal penetration and oral sex. Sexual gratification is not required. You can also be convicted if the Crown can prove you had sexual activity with someone who was unconscious or asleep or if someone was too young to consent.

Evidence given by the alleged victim must be clear and convincing. Any inconsistencies could weaken the Crown’s case.

What can I expect at trial?

When investigation sexual assault allegations, police will search for physical evidence in an attempt to tie an accused to the crime. This can include fingerprints or the presence of semen, hair and saliva. These are not necessarily proof of guilt, of course. There could be legitimate reasons that fingerprints or DNA evidence was found at the scene. The existence of semen may bolster the prosecutor’s case but not if sex was consensual.

The Crown may be able to introduce text messages or emails that could be vital pieces of evidence. However, such correspondence could be used in your favour if they portray the encounter in a different light than what is being alleged. For example in 2016, a prominent CBC radio host was acquitted of sex assault charges after emails from one complainant expressed her sexual desire for the man just hours after the alleged sexual assault.

Some text or email evidence may seem inconsequential to you but in the hands of an experienced defence attorney it could be effective in proving your innocence so it is important to share any and all correspondence with your lawyer.

Investigators may also have video surveillance footage placing you at the scene of the alleged offence. Again, it is not proof in and of itself that you committed a crime but, taken together with other evidence, it could build a compelling case for a conviction. Which is why you need a lawyer who can find discrepancies in the Crown’s theory.

What evidence can be introduced about the complainant?

Depending the circumstances, sexual history may be admissible. However, s. 276 of the Criminal Code states there are two occasions where it is not. This is commonly known as the twin myths. According to the Code, just because someone has consented to sex in the past it doesn’t mean they will again. Also, their sexual history does not make them less worthy of belief.

There have been recent changes in the law that can be more difficult to obtain records and other evidence that might be essential to defending yourself at trial. Asking questions in cross-examination that intrude on the privacy of the alleged victim can also be difficult. I have experience in the complex nature of cross-examining sexual assault complainants and can bring my expertise to bear in your defence.

A sexual assault conviction can lead to jail time

Depending on the severity of the assault and the age of the victim, a sexual assault conviction could result in a lengthy jail term. You will also be placed on the federal and provincial sex offender registries for a minimum of 10 years and up to life. As well, you may be required to provide a DNA sample that will be kept in the DNA Data Bank for use in potential future investigations.

Since becoming a defence lawyer, I have represented thousands of clients, helping them to avoid jail sentences and criminal convictions. Read my Criminal Case Decisions here to learn what I can do for you. If you have been charged with sexual assault, contact me for a free initial consultation.