A charge or conviction of sexual assault can have dire consequences on your life. In addition to a possible prison sentence, the stigma of being accused of sexual assault, even if you are not convicted can damage your reputation, personal life, and future prospects for work. Even though the Canadian National Sex Offender Registry is not available to the public like sex offender registries in the United States, a person convicted of sexual assault in Canada is still required to register with the police. A person convicted of sexual assault must notify the authorities if a name or address change occurs and can even be required to provide information about vacation plans or other trips away from home.
Any touching without a party’s consent that is sexual in nature can be considered sexual assault. While the gravest of cases of sexual assault, like those involving rape or child molestation are given more coverage in the media, sexual assault can be charged for unwanted kissing, groping, or other activity that may be not be commonly thought of as sexual assault.
Sexual assault falls under the general assault law but the maximum sentence for a first conviction of sexual assault is ten years in prison instead of five years as is the case in assaults of a non-sexual nature. Additionally, the Criminal Code includes the offences of aggravated sexual assault, and sexual assault with a weapon, threats to a third party or causing bodily harm. Both of these offences are subject to minimum required prison sentences and can result in life imprisonment.
The facts at issue in a sexual assault case often revolve around whether or not there was consent to the touching. Disputes surrounding consent can be very complicated and fact specific. Some examples of the types of issues that a lawyer can assist with are minors under the age of sixteen cannot consent to sexual touching, although there are some exceptions for minors who are close in age with the other party. Consent can be withdrawn at any time by the words or actions of the accuser. Consent is not valid when it is obtained through harm or threats of harm to the complainant or third parties. Likewise, it is not consent if fraud or status as an authority figure, such as police officer or teacher, is used to convince someone not to resist or submit to sexual touching.
Many times the accused believes that the sexual activity was consensual. While it is up to the Crown to prove that no consent existed, the accused has a responsibility to make sure that consent An honest but mistaken belief that there was consent is a factor than the judge or jury can consider in determining guilt or innocence.
The nature of sexual assault often means that even before a person is convicted of the offence, he or she is treated as a sex offender. This can make it difficult to
Accused’s belief as to consent(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
Crime where touching of a sexual nature occurs without the consent of both parties.271. (1) Every one who commits a sexual assault is guilty of
Assault(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
265. (1) A person commits an assault when
Application(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Consent(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
Accused’s belief as to consent(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
- R.S., c. C-34, s. 244;
- 1974-75-76, c. 93, s. 21;
- 1980-81-82-83, c. 125, s. 19.
266. Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
