What is sexual assault?
“Sexual Assault” is defined as an assault of a sexual nature that violates the sexual integrity of the complainant. A sexual assault is committed if there has been any touching of a sexual nature without the consent of the person touched.
The crown must prove each of the following elements beyond a reasonable doubt for a person to be convicted of sexual assault:
- That there was touching of a sexual nature.
- The touching was intentional.
- That the complainant did not consent to the sexual activity in question.
- That the accused knew that the complainant did not consent to the sexual activity in question.
ARE CERTAIN FORMS OF SEXUAL ASSAULT MORE SERIOUS THAN OTHERS?
“Sexual assault” is a Criminal Code offence which also makes up the foundation of a variety of sexual offences, such as sexual assault causing bodily harm, or sexual assault with a weapon, or aggravated sexual assault.
There is a spectrum to sexual assault offences. On the less-serious end of the spectrum, sexual assault can include sexual touching, such as grabbing someone’s buttocks. On the more serious end, it can include sexual intercourse. To be convicted, it is not necessary that force be used against the complainant.
WHAT IF THE BODY PART TOUCHED IS NOT ‘SEXUALIZED’?
The Supreme Court of Canada has ruled that the act of sexual assault does not depend solely on contact with any specific part of the human anatomy, but rather the act of a sexual nature that violates the sexual integrity of the victim. When defending a sexual assault, there are certain relevant factors to consider, including:
- The part of the body touched.
- The nature of the contact.
- The situation in which the contact occurred.
- The words and gestures accompanying the act.
- All other circumstances surrounding the act.
- Any threats that may or may not be accompanied by force.
WILL THE COURT CONSIDER THE SURROUNDING CIRCUMSTANCES OF THE ASSAULT?
Yes, courts will examine all the circumstances surrounding the allegation in the process of making their decision. These surrounding details can include:
- The relationship between you and the complainant.
- The manner in which the crime was committed.
- Your intent and state of mind.
- The part of the complainant’s body that has been touched.
- Any accompanying words, conduct, or gestures.
HOW CAN THE CROWN PROVE A SEXUAL ASSAULT WHEN IT IS ONE PERSON’S WORD AGAINST ANOTHER’S?
In many circumstances, the court will hear two opposing versions of what happened. For example, the complainant might claim you went on a date and then sexually assaulted her, while you might claim to have never touched her. The court will have to assess all the evidence and be convinced beyond a reasonable doubt that a sexual assault occurred.
In other circumstances, you may have been involved in a one-night stand, where alcohol was involved, and you and the complainant had sex. You might have thought it was consensual, while the complainant has gone to the police, after the fact, and it reported it as a sexual assault, which resulted in you being charged. The court again will need to assess all of the evidence to decide whether a sexual assault has been proven beyond a reasonable doubt.
Sexual assault charges are complex and require skilled cross-examination and thorough knowledge of the law. It is important to retain the services of an experienced defence lawyer like myself right away, so that we can begin to mount a detailed defence. It is important that you receive advice on whether you should speak with the police, who else you can discuss your matter with, and whether you should retain any exonerating evidence.