Sexual assault is defined as an assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated. Sexual assault is a serious crime in Canada. The mere stigma of being accused of a sex crime can irreparably damage a person's reputation.
Determining whether an assault is “sexual in nature”
To determine if an assault is sexual in nature, the court looks at the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gesture accompanying the act, and all other circumstances surrounding the conduct, including the motives of the accused person.
Was there consent to engage or continue?
A central issue in most sexual assault cases is whether or not the sexual activity in question was consensual between the parties. Consent is the voluntary agreement of the parties to have engaged or continue in the sexual activity.
Lack of consent
Consent will not exist in any of the following situations
where the agreement is expressed by the words or conduct of a person other than the complainant;
the complainant is incapable of consenting to the activity by virtue of the complainant's mental state at the time (i.e. intoxication, mental illness, etc.);
the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct; OR
The complainant is under the age of 16 (Note: this is subject to the “close-in-age exception,” meaning 14- and 15-year-olds can have sex with someone who is less than five years older.)
Mistaken belief of consent
An accused may be found not guilty of a sexual assault charge even where there existed no consent between the parties if the accused held an honest but mistaken belief that the sexual activity was consensual. An honest but mistaken belief in consent can be raised if the accused establishes that they held a reasonable belief that the complainant affirmatively communicated consent through the complainant's words or actions.
However, the accused honest but mistaken belief in consent cannot arise from any of the following scenarios
self-induced intoxication;
recklessness or willful blindness; or
the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Was the consent given?
In order to determine if consent was given, the Court will look at the parties' words, conduct, and reasonable steps taken by the accused to ascertain consent. Words and conduct are important when trying to establish if the complainant consented to the sexual contact. The Court will not accept a complainant's silence or passivity as a form of consent; in other words, implied consent is not a defence to criminal sexual assault. If the Court finds that the accused continued sexual conduct after the accuser indicated “No” through words or conduct, the accused's actions may be considered reckless, and he or she could be convicted of sexual assault. Undoubtedly, the issue of consent can be a grey area, as parties' perceptions of events may vary a great deal. The Court will look at consent from the complainant's point of view.
The Criminal Code requires that the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser's consent. Courts have maintained that not all reasonable steps to ascertain consent need be taken; but rather that efforts were made to take some reasonable steps would be sufficient. Of course, just taking “some reasonable steps” alone will not prove consent, but even if the accused thought consent was given, and it turns out that it was not, taking some reasonable steps may provide the defence with some creditability.
Limits on attacking the complainant's credibility
There was a time when a person accused of sexual assault was permitted to question the complainant in a sexual assault case about their past sexual history as a way of attacking the complainant's credibility. This is no longer permitted by the courts without a special application to be brought before the trial judge which is permitted in very limited circumstances. There is no substitute for strong, experienced legal representation when going through the criminal justice system. Call Ranbir S. Thind at 1.780.432.7000 or [email protected]to arrange a consultation to discuss your situation and for a sound legal advice and representation.