Sexual Assault and Other Sexual Offences
Sexual Assault and Other Sexual Offences
Being charged with sexual assault or any sexual offence can have a devastating impact on your life. The stigma, effect on employment opportunities, and jeopardy you are facing will be extremely stressful.
In many cases, you will be charged with more than one sexual offence at once, which increases anxiety. The good news is that these charges are often effectively defended against; I personally have many years of experience in successfully defending my clients in this area.
If you are charged with a sexual offence, it could be any number of charges, as there are several different offences that fall within the general heading of sexual assault and related offences. These are:
- Sexual Assault.
- Sexual Assault with a Weapon.
- Sexual Assault Causing Bodily Harm.
- Aggravated Sexual Assault.
- Sexual Interference with a Minor.
- Invitation to Sexual Touching.
- Forcible Confinement.
Below I will review the differences between these charges and provide some detail about the common defences that might be available to you.
“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 with a weapon, or aggravated sexual assault.
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. A sexual assault is committed if there has been any touching of a sexual nature without the consent of the person touched. To be convicted, it is not necessary that force be used against the complainant.
The elements of the offence of sexual assault are as follows:
- 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.
The crown must prove each of these elements beyond a reasonable doubt for a person to be convicted of sexual assault. Courts will examine all the circumstances surrounding the allegation, including:
- The relationship between you and the complainant.
- The part of the complainant’s body that has been touched.
- The manner in which the crime was committed.
- Any accompanying words, conduct, or gestures.
- Your intent and state of mind.
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 had sex with 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.
Sexual Assault with a Weapon or Causing Bodily Harm
Sexual assault with a weapon or causing bodily harm is considered a more serious offence because the circumstances will involve a higher degree of harm or potential harm to the complainant.
You can be charged with sexual assault with a weapon if you carry, use or threaten to use a weapon or imitation weapon while committing a sexual assault. Likewise, you can be charged with sexual assault causing bodily harm if you threaten to cause bodily harm, or actually cause bodily harm, to a person while committing a sexual assault. In addition, you can be charged with either of these offences if you’re only a party to the offence with another person.
Unlike what you may think, a weapon can be any number of items. While guns and knives often come to mind, a weapon may be considered something as small as a rock or a shoe. The Criminal Code defines a weapon as anything used, designed to be used, or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating them. It does not matter so much what was used as a weapon, but how the item was used against the other person.
Likewise, bodily harm is defined in the Criminal Code as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. Therefore, bodily harm is not always considered serious injury to another person, it may be injury as small as a cut or bruise.
In many cases I will be able to challenge whether the alleged weapon used, the bodily harmed suffered, or any threats uttered meets the Criminal Code definitions. Part of my practice is analyzing the evidence against your version of events and negotiating with the Crown about whether the right charge was laid. In many cases I will be able to argue against the elevated charge of sexual assault with a weapon or causing bodily harm. This can lead to successful resolution, often avoiding a criminal record altogether or increasing the likelihood of success at trial.
Aggravated Sexual Assault
Aggravated sexual assault is defined as wounding, maiming, disfiguring or endangering the life of the complainant while committing a sexual assault.
This type of offence is strictly indictable and is considered very serious, with a maximum penalty of imprisonment of life. There are also mandatory minimum sentences of imprisonment if a firearm was used or if the complainant was under 16 years of age.
As with every sexual assault charge, the crown must prove every element of the offence beyond a reasonable doubt. This will include that you were the assailant, and that any injuries suffered to the complainant meet the definitions of wounding, maiming, disfiguring or endangering life.
Because of the seriousness of this type of charge, the police are likely to launch lengthy investigations. Given that, you may have one of any number of defences available to you under the Canadian Charter of Rights and Freedoms. For example, you may have been the subject of unlawful police questioning or an unlawful search may have been performed on you or your house.
In many circumstances, you will a number of defences available to your if you choose to take your matter to trial. Trials involving charges of this nature are complex and require the knowledge and skill of a senior criminal defence lawyer like me. Call me and we can discuss your matter.
Sexual Interference with a Minor
A sexual interference offence is when a person touches for a sexual purpose a part of the body of another person who is under 16 years old, whether directly or indirectly. This can include touching another person with an object.
These types of charges can be complex and involve large police investigations. I have years of experience in reviewing these types of investigations and the evidence surrounding the charge, often resulting with charges being withdrawn or not guilty findings after trial.
It is vital to get legal advice – ideally in advance of any sexual activity – if you are in a situation where you want to rely on the consent of a person under the age of majority (which is 18 years of age).
The Criminal Code sets special rules relating to consent by certain under-aged complainants and certain sexual offences. However, the circumstances in which these rules can apply are very limited, and involve numerous thresholds involving the accused’s reasonable beliefs as to the complainant’s age.
Here are some of the main points to know:
- A person who is 12 or 13 can consent to sexual activity with another person who is not more than two years older than they are, and who is not in a position of trust, authority or dependency, or any other exploitation of the young person.
- A person who is 14 or 15 can consent to sexual activity with another person who is not more than five years older than they are, and who is not in a position of trust, authority or dependency, or any other exploitation of the young person.
- Persons who are aged 16 and above can give consent as an adult (even though they have not yet reached the age of majority, which is 18), as long as there is no relationship of trust, authority, dependency or any other exploitation of the young person.
If you are in a situation where you fall within the allowable age and position for obtaining consent of the minor, then you may be able to rely on the defence of having obtained the person’s consent. However, it is always advisable to seek legal advice to determine if your circumstances fall outside of what would attract criminal charges.
Invitation to Sexual Touching
An invitation to sexual touching charge will arise when a person invites, counsels, or incites a person under 16 to touch, directly or indirectly and for a sexual purpose, another person with a part of the body or with an object.
The crown will have to prove all of the elements of this offence beyond a reasonable doubt, including that you invited, counselled or incited the person to touch you, and that any touching that occurred was of a sexual nature. The laws regarding the age of consent will also come into play for this charge. Together, all of these factors may afford you several lines of defence.
It is important to retain legal advice right away, as in these types of charges and investigations, the police will try to solicit evidence from you. You might not realize that answering their seemingly innocent questions could form the basis for them to charge you.
Although it is not truly a sexual assault crime, the Criminal Code also sets out the offence of forcible confinement which involves depriving an individual of the liberty to move from one point to another, by unlawfully confining, imprisoning, or forcibly seizing that person.
This type of offence sometimes accompanies a sexual assault charge, as complainants will frequently claim that they were unable or not allowed to leave an area while being sexually assaulted. For example, a person might claim that they were not allowed to leave a bedroom or house during the time that the alleged sexual assault was occurring.
Police are often quick to lay charges despite the facts not always supporting a charge of forcible confinement. This is where I can use my expertise as a defence counsel to negotiate with the crown prosecutor where the evidence does not lend itself to the pile on of charges.
Defending Sexual Assault Charges Generally
Charges involving sexual assault and similar offences are among the most intensive, invasive, and complex to defend, because they usually involve challenges relating to credibility. In many cases charges are not laid immediately; the delay can also potentially impact the availability and integrity of the evidence, and the ability to challenge it.
The complainant may come forward to police under false pretenses, where he or she experienced post-sex remorse about having given valid consent. Or, the complainant may have been motivated by anger over a recent breakup, or jealousy over a subsequent relationship. This can complicate matters significantly.
For defending against sexual assault charges, preparation is key. This involves obtaining all the important details such as:
- The nature, duration and dynamic of your relationship with the complainant.
- The specific details of the alleged incident.
- What transpired after the alleged incident.
- The relationship with any witnesses, and what the nature of their evidence will be.
Needless to say, a good defence will also involve interviewing witnesses, conducting an independent review of the evidence, and scrutinizing the nature of the police investigations, including adherence to procedural protocols.
Defence – It Never Happened
In some cases, sexual assault charges are laid where there was no sexual contact whatsoever. That is, the complainant is falsely accusing you of having sexual relations when in fact there was never any sexual contact.
I have successfully defended many people in this type of situation. In these circumstances, the complainant will almost always testify. This is where the effective cross-examination by a skilled defence lawyer is the best tool – it ensures that every inconsistency in the complainant’s story is revealed to the court.
Oftentimes you will then testify and tell the court your version of what did, or usually in these circumstances, did not happen. In cases of false accusations, the truth often reveals itself and the crown has difficulty proving that the offence occurred beyond a reasonable doubt.
Defence – It was Consensual
In many cases, you and the complainant will agree that there was sexual contact between you two, but you disagree on whether the sexual activity in question was consensual. Consensual sexual activity is not a crime, but non-consensual activity is.
Courts are tasked with determining whether the sexual act was consensual or not. This involves the court making a factual ruling on the specific issue of:
- What was in the mind of the complainant at the time the sexual activity occurred?
In these cases, the complainant will take the stand to testify as to her mental state at the time of the sexual activity. The court must believe the complainant that she did not consent in order to establish that the sexual activity was not consensual. At this point, unfortunately, the law is clear that it does not matter if you believed that the complainant was consenting; it only matters whether she felt it was consensual in her mind at the time.
Because sexual activity generally occurs in private, the court will only hear what the complainant claims was in her mind during the sexual activity. This is where skillful cross-examination of the complainant comes in. It will allow the court to have a better view as to what was in the complainant’s mind during the sexual activity. For example, the court might not believe the complainant if, during cross-examination, I am able to establish that he or she lied about several events that night.
Because you and the complainant will likely both testify in court, this in turn means that your credibility, and the complainant’s credibility, are key factors in the trial. This is where my expertise in sexual assault trials will be particularly useful, because the element of consent can help avoid a conviction entirely. An aggressive defence will involve my skillful assembly and presentation of the facts in both direct and cross-examination, in a manner that will persuade the court that consent was given.
The law specifically dictates that in some situations, it is impossible for a complainant to give consent. These include situations where:
- The complainant lacks the capacity to consent to sexual activity.
- Consent is being given by one person on behalf of another.
- There is any sexual activity that is the result of threats, violence, or extortion.
- Consent is obtained by abusing a position of trust, power or authority.
- The complainant expresses by words or conduct a lack of agreement to continue to engage in the activity.
Sexual assault caselaw has also confirmed there is no such thing as implied consent. You can never simply assume a person is consenting because they are silent, passive or have ambiguous conduct. Likewise, a person cannot give broad advance consent; no one can agree to future sexual activity of an undefined scope. Finally, you cannot rely on sexual activity being consensual because someone consented in the past. Just because someone consented to activity once, does not mean that they consent another time.
The crown may allege that no consent was given as a matter of law, meaning for example, someone else consented on behalf of the complainant. Depending on the circumstances of your case, you may well have a defence against any allegation regarding lack of consent.
Defence – I had an Honest but Mistaken Belief in Consent
In certain circumstances, you may be able to rely on the defence of honest but mistaken belief in consent. This defence typically arises in a situation where you honestly believed that the sexual activity was consensual and that you had ascertained the consent of the other person, despite the complainant now saying that it was not consensual.
There are certain legal requirements that must be met for you to rely on this defence. Honest but mistaken belief in consent can only be relied upon if the court believes that the complainant did not consent to the sexual activity in question.
For example, this defence may be applicable in a case of a one-night stand, where the complainant and the accused person had talked about sex throughout the night, had consensual sexual activity up to the point of intercourse, but at that point the complainant claims she no longer wanted to have sex. The accused, however, claims he was not aware of this fact and honestly believed the intercourse was consensual. If the accused person claims that through her words and conduct that he honestly believed she was consenting to the sexual activity, this defence may exonerate him.
In these circumstances, the accused person must provide evidence that he took reasonable steps to ascertain consent of the other person. Reasonable steps could include asking if the person wants to have sex or use a condom. A court will decide what was reasonable based on the circumstances of the specific case.
This type of defence will require specialized knowledge of the law, and succinct argumentation to the court. I have specific experience in successfully running trials on this type of defence. If you are facing a sexual assault charge, contact me so that I can assess whether this defence is available to you.
Sexual Assault Investigations
If you are facing an allegation of sexual assault resulting in charges against you, then you are also facing a specialized team of police, investigators, and crown counsel who are well-versed in investigating and prosecuting these kinds of crimes.
Sexual assault charges also involve special rules and procedures. These include:
- Customized procedures relating to access to forensic evidence (such as DNA).
- Limits on the particular types of questions that can be asked of a complainant.
- Specialized court procedures that pertain to obtaining disclosure of important evidence.
- Protective procedures to guard the privacy of complainants and witnesses, such as a publication ban.
It is imperative that you retain the services of an experienced criminal lawyer, so that you have the best possible chance for success in either negotiating with the crown for a resolution, or after a trial.
Potential Penalties – Sexual Offences
A conviction for any sexual offence can have serious and devastating consequences, not just as a result of having a criminal record and facing jail time, but also in terms of its negative impact on your family and friend relationships. It can also impact your current or future employment. Charges alone which fall into the category of sexual offences usually carry a long-term stigma. This is why it is so important to obtain legal representation for these matters right at the outset.
If you are convicted of a sex-related offence, in addition to whatever penalty imposed (including a jail term and probation) you must also provide a sample of your DNA to the National DNA Databank, and you will also be registered as a sex offender. The ramifications of this designation can include restrictions on work, travel and choice of where you live.
Depending on the type of charge you face and the circumstances surrounding your charge, you may be facing a lengthy term of incarceration. If there are aggravating circumstances, such as involvement of violence, minors, or firearms, you are likely facing a mandatory minimum charge if convicted.
Call me, Susan Karpa, an experienced Sex Assault lawyer.
For these reasons, it is especially important that if you are facing charges for a sexual offence, you obtain my assistance. I have the knowledge, experience and successful track-record to help you. My job is to thoroughly defend you!
I have had a lot of success with defending sexual offences, including having charges withdrawn and stayed, and findings of “not guilty” after trial.
Sexual offence charges are complex and require the skill of knowledgeable criminal counsel. Call me to chat about the charges you are facing, I will provide you with an exhaustive legal defence.