What are the best defences to a sexual assault charge?

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What are the best defences to a sexual assault charge?

The best defences to a sexual assault charge depends on the specific facts of the case.

Sexual assault is the application of force of a sexual nature without consent. That means, in order to be convicted of sexual assault, the crown prosecutor must prove beyond a reasonable doubt that you applied force to the complainant (i.e., touched them with your body or something else), that the touch was sexual, and that the complainant did not consent.

Many Calgary sexual assault cases do not go to trial because the accused pleads guilty. Skilled criminal defence lawyers can often negotiate with crown prosecutors to join them in asking the judge to order a sentence that is good for the accused. Sometimes a defence lawyer can even convince a crown prosecutor to consent to the accused making a plea of not guilty to sexual assault, but guilty to the (lesser and included) offence of “simple assault” (i.e. assault). A criminal record for assault is better than a criminal record for sexual. I have separate FAQs about ways to deal with a criminal charge without going to trial, about what happens if you are convicted of sexual assault, and about simple assault

For some sexual assault cases, a criminal defence lawyer may be able to persuade the crown prosecutor to withdraw (drop) a sexual assault charge because there is no reasonable likelihood of conviction. I have a separate FAQ on how to get charges dropped.

If the accused pleads not guilty and the sexual assault charge goes to trial, their defence lawyer may make the following arguments, depending on the situation:

Sexual assault not proven: The crown prosecutor did not prove the offence beyond a reasonable doubt. In sexual assault cases, this usually involves creating a reasonable doubt about whether or not the alleged sexual act actually happened by showing that the complainant is not credible (i.e., believable), or that their evidence about what happened is not reliable. However, it could mean raising a reasonable doubt about the identity of the accused, especially in cases of alleged sexual assault committed by someone unknown to the complainant. It can also be argued that the crown prosecutor did not prove that there was no consent. However, this is very hard to argue because whether the accused consented is all about what was happening in their mind at the time of the alleged offence, so if they testify that they did not consent and they are believable enough in that testimony, then that element is proven. There are many other ways this argument could be made depending on the circumstances. 

Charter rights violation: Evidence against the accused is excluded or their charge is dropped because their Charter rights were violated, leaving them without a conviction. For example, the charge is stayed (i.e., effectively dropped) because the crown’s case depended entirely on an incriminating statement that the accused gave without being told of their right to counsel, and the judge decided that allowing that statement to be admitted into evidence at trial anyway would be against the best interest of society, so it is not allowed in. I have a separate FAQ on what evidence can be used against an accused person in a sexual assault trial.

Honest but mistaken belief in communicated consent: This is a very complicated defence that is challenging to make. Consent has to be continuous and ongoing, and it is only a defence that the accused believed the complainant was consenting if that belief is honest, reasonable, and based on the accused communicating their consent. The defence does not apply if the belief in consent is based on the complainant’s silence or inaction. Consent is also not obtained where: someone other than the complainant agrees to the sexual activity, where the complainant is incapable of consenting, where the complainant abuses a position of trust, power, or authority to induce the complainant to engage in the sexual activity, where the victim expresses by words or actions that they do not agree, or where the victim was consenting but stops consenting.