I’ve been accused of sexual assault, now what?
Being charged with any crime is a life-changing experience, often centred around false allegations. If you are being accused of sexual assault, then the personal ramifications may be magnified because of the stigma associated with it, not to mention the significant sentences that this kind of offence can attract if you are found guilty.
Here are some of the important points to know if you find yourself in the position of having been charged with a sexual assault offence in Canada.
What is my first step?
If you have been charged with sexual assault, your first step should be to speak to a criminal lawyer who is experienced in these matters. If you retain my services, I will take over the management of the case, focusing first on whether the criminal proceedings are unfolding in the proper way. I will ensure that:
- Initial procedural steps are being strictly followed.
- Your constitutional rights are protected.
- You are given the information on which the crown has that formed the basis for the charges.
This last task includes requesting disclosure from the crown, which consist of all evidence that has been assembled on your case so far. The nature of the disclosure package will vary according to the complexity of your case, but often includes:
- The results of the police investigation, including notes and reports.
- Any statements that have been taken from the complainant or witnesses.
- Forensic evidence, crime photographs and video statements.
- Medical records from the complainant.
- Audiotapes from any call to 911.
- DNA evidence.
What will my lawyer do with the evidence?
As your lawyer, I will carefully analyze the information provided, and will evaluate the strength of the crown’s case and the likely chances of your being convicted.
By reviewing the disclosure in detail, I will consider whether it has any obvious shortcomings; this will include considering procedural errors, breaches of your rights, and inconsistencies or shortfalls in what the crown has to prove to get a conviction.
The issue of “consent” is also key: In a sexual assault trial one of the primary areas of focus is whether the complainant consented to the sexual activity. Consensual sexual activity cannot form the basis of a criminal conviction of sexual assault. This means that one of the most important tasks for the crown is to prove that there was no consent obtained during the incident for which you were arrested. As your lawyer, I will scrutinize the shortcomings and flaws in the evidence of that nature. I will also strategically evaluate your options at this early stage and consider the benefits and the risk involved with each.
Am I eligible for bail when facing a sexual assault offence?
In many sexual assault cases, you may be released by the officer in charge. When that happens, a bail hearing will not be needed, and you will be released by the officer. The officer can impose certain conditions in relation to your release.
On the other hand, in some cases the police will bring your matter before a justice of the peace to address the issue of bail. It is common in these types of cases to have a release with a no contact provision in relation to the complainant. There may be other conditions that you would be subject to as well.
Under Canadian criminal law, the term “bail” – also known as “judicial interim release” – is the procedure that involves a justice of the peace or judge determining whether you will be released from jail, or else kept in custody pending your court dates. If they elect to charge you, then a bail hearing must be held within 24 hours of your arrest.
The court’s decision on bail will hinge on numerous factors, including concerns over:
- Whether you will show up in court.
- Public safety (including the safety of the complainant and other witnesses).
- The public impression that your detention is needed to maintain confidence in the administration of justice, especially in light of the seriousness of the alleged offence.
The court makes its bail determination after reviewing a crown-provided summary of the evidence that forms the basis for the offence with which you have been charged. The court will also consider any evidence that relates to the safety of either the complainant or other witnesses, taking into account the seriousness of the charge, and whether it is alleged that violence (actual, threatened, or attempted) was purportedly part of the incident.
What happens after my initial court appearance for my sexual assault charge?
As part of the criminal process, you will have at least one initial court appearance before a judge. There will likely be additional court appearances to adjourn your matter for further disclosure, discussions with the crown prosecutor, or to set a date for trial or resolution of the matter.
These interim court appearances leading up to your trial will allow me to accomplish several things:
- Review your case in detail, including any new documents provided by the crown as part of its ongoing disclosure obligations.
- Explore any gaps in the evidence and determine how to fill or address them to your best advantage.
- Discuss your overall strategy and the direction you want to take with your defence.
I may also begin having discussions with the crown, to explore the opportunity for a resolution of the matter. Ideally, those discussions will focus on the desired outcome of an outright withdrawal of the charge. Alternatively, in certain cases you may give me instructions to start plea negotiations with the crown. There would be no obligation to accept a plea deal, however, you may want me to canvass a plea deal with the crown with a view to understanding what the crown would be seeking pre-trial versus post trial in terms of penalty.
Again, it is my goal first and foremost to try to have the charges of sexual assault against you dropped or withdrawn.
What can my lawyer do for me procedurally, pending my sexual assault trial?
If you have elected to take the matter to trial, as your lawyer I will be able to take some procedural steps towards achieving the best possible outcome for you.
These might include filing applications with the court:
- To have certain evidence declared inadmissible.
- To declare that certain of your Charter rights were breached during the arrest, charging, or evidence-gathering stages.
- To obtain the psychiatric and counselling records of the complainant.
- To allow in evidence of the complainant’s prior sexual conduct, so that it can be heard as part of the trial.
As part of these applications, I will be required to prepare documents, file them with the court, attend with you at the scheduled application hearing date, and argue for a specific outcome.
This kind of involvement at the early pre-trial stage is particularly important in defending sexual assault charges. The context and specific incidents that spark these kinds of charges can be complex, and center around the credibility of the complainant. That is, sexual assault cases often come down to the credibility of the complainant, or lack thereof.
By identifying and assessing the conflicting evidence early, and by pointing out inconsistencies and areas for reasonable doubt, I can identify weaknesses in the crown’s case.
Are all the sexual assault offences equally serious?
The Criminal Code specifies many different types of offences under the sexual assault category. Where the crown has an election to make regarding how they will proceed with your charges, whether by summary conviction or by indictment, that will necessarily dictate the seriousness of the matter. Indictable offences are generally treated more seriously than summary offences.
The crown is solely responsible for choosing whether to proceed by way of a summary offence or by an indictable offence where there is a choice as to how they will proceed. This determination will depend on the circumstances of the alleged offence, including its seriousness. The crown will usually elect to proceed by indictment if the incident for which you have been charged involves any form of sexual intercourse. The crown will usually proceed by way of summary conviction if it involves only a comparatively minor sexual touching.
If the crown elects to proceed by indictment, then you are given a choice to be tried by either:
- A judge-and-jury, or
- A judge alone.
In certain circumstances where the complainant is 16 years or younger, you may also request that a preliminary hearing be held at the Provincial Court level prior to proceeding to trial with a judge alone or with a judge-and jury. With serious sexual assault charges where the crown has proceeded by indictment and the complainant is 16 years or younger, often a preliminary inquiry can be useful when you are facing a serious sexual assault charge.
What is involved in a preliminary hearing?
A preliminary hearing is a process that is invoked only if you have been charged with a serious indictable offence. It is not a full-blown criminal trial, but rather serves a “gatekeeping” function to determine whether there is sufficient evidence to proceed with a trial.
It involves the judge hearing the evidence of witnesses, who I will then cross-examine as part of my role as your defence lawyer. This will give me the chance to scrutinize the nature of the evidence and the strength of the crown’s case and is an important step in allowing me to assess your overall strategy going-forward. Among other things it will allow me to help you decide whether it is best to have a trial by judge-and-jury or by judge alone.
If you are charged with a summary conviction offence or an indictable offence where the complainant is over 16 years of age, then there is no opportunity for a preliminary hearing and the next step is simply for the matter to be heard on the scheduled trial date.
At my sexual assault trial, what will my lawyer focus on?
At every criminal trial, it is the crown’s job to prove the elements of the alleged crime beyond a reasonable doubt. If you have been charged with a sexual assault, though it may seem like the contrary is the case, you are still presumed to be innocent at each and every stage of the proceedings.
Sexual assault trials can be very complex. The defence strategy will always involve calling into question whether the crown proved, beyond a reasonable doubt, all of the elements of the offence as defined by the Criminal Code. In all cases where the issue is whether or not the complainant consented to the sexual activity, the crown must prove that the complainant did not consent to the sexual activity, either by words or by conduct. Sexual assault trials often concentrate on this particular aspect of the incident in question, with the evidence and facts being scrutinized in minute detail.
How long does the criminal trial process generally take?
The time from the moment of your arrest to your trial and sentencing will depend on many factors, including the crown’s choice as to how it wants to proceed against you.
For a sexual assault offence prosecuted by summary conviction, the process can be somewhat shorter than if the prosecution proceeds by way of indictment (since in certain circumstances you may be eligible for the added step of a preliminary hearing).
Although this will depend on certain variables, such as the backlog in the particular court location, your first appearance will typically be three to six weeks after your arrest. This is usually followed by additional court dates to confirm instructions as to whether you wish to resolve the matter or proceed to trial. Finally, if you are proceeding with a trial, when the trial date is set will depend upon how long the trial will take, the availability of the courts, crown and defence counsel.
If the crown has chosen to proceed by indictment, then the process can take longer. Where the crown has proceeded by indictment, your first appearance might be set for three to six weeks after your arrest. This is again usually followed by additional docket court dates. I will generally be able to make those docket court appearances for you. A preliminary inquiry may then be set, depending upon your election and eligibility. The trial itself – which can be by judge alone or by judge-and-jury, at your option – will be set a further time down the line. In total, when the matter proceeds by indictment the whole process can take a significant amount of time from the time you are arrested and charged.
If I am found guilty, what sort of sentence could I be facing? Will I go to jail?
Just as the range of sexual assault varies greatly in terms of seriousness, so do the sentences that can be imposed on you if you plead guilty or are convicted by a judge or a jury. For very minor sexual assaults (for example, brief sexual touching, such as groping another person’s buttocks in a bar), you may be able to avoid jail time. However, as a general rule, most other sexual assault convictions will attract at least some period of incarceration. More serious sexual assaults involving sexual intercourse will usually attract a significant jail sentence involving several years behind bars.
The length of sentence imposed on you specifically will also vary according to the severity of your alleged offence, including the factual context in which it occurred. There may be aggravating factors including the age and identity of the complainant, and his or her relationship to you. It can also vary depending on whether you had a prior conviction (for sexual assault or otherwise).
For a fuller explanation of the various sentences you may be facing on conviction, it is important to seek the advice of an experienced criminal lawyer, such as myself.
Call me, Susan Karpa, an experienced criminal lawyer.
I have widespread experience securing both acquittals and outright withdraws of sexual assault charges, and I am well-versed in this type of trial advocacy.
I encourage you to speak with me so that I can give you timely, personalized advice. This will include discussing the events that led to your charge and advising on the best possible path forward.
Call my office to discuss your sexual assault charges.