Sexual Assault Charges
Legal practice around consent and sexual assault is rapidly evolving in response to critique of the myths and stereotypical thinking that have directed the way sexual assault cases have been handled in the past. Kolinsky Law has remained informed of these developments and shifts in thinking. If you are facing allegations of sexual assault, you need a lawyer who is up to date and informed in this area. A lawyer who does not have a well-informed and nuanced understanding of consent and contemporary sexual assault defence practice may rely on outdated sex myths and stereotypes, which can ultimately harm your defense.
What qualifies as sexual assault under Canadian law?
Sexual assault is one of a variety of sexual offences under the Criminal Code of Canada. Sexual assault is defined as an assault committed in sexual circumstance that results in the violation of the sexual integrity of the victim. Assault is the intentional application of force without the victim’s consent. Sexual assault offences include vaginal, anal, and oral penetration as well as sexual touching.
There are three levels of sexual assault, with different circumstances and attached penalties:
Sexual assault may result in a summary conviction with a maximum sentence of 18 months in prison and/or a $2000 fine or an indictment, with a maximum sentence of ten years imprisonment.
Sexual Assault With a Weapon/Threats to a Third Party/Causing Bodily Harm is if weapons, threats, bodily harm, or multiple perpetrators are involved, and carries a maximum penalty of 14 years imprisonment.
Aggravated sexual assault, which involves seriously harming the victim, carries a maximum sentence of life imprisonment.
Sexual assault is perpetrated by people of all genders upon victims of any gender, although the majority of victims are women. The attacker may be the same gender as the victim, and a spouse may be charged with sexual assault of their spouse. Over half of reported sexual assaults involve a victim and perpetrator who know each other.
How Does the Prosecution of Sexual Assault Happen in Canada?
In most cases, all that is required to bring sexual assault charges against an accused is a verbal accusation, not physical evidence.
The Court will examine all circumstances of the allegation to determine if sexual assault occurred, including words, gestures or threats, whether there was a motive of sexual gratification, the nature of the contact and what body parts were involved, and if the accused attempted to hide the incident.
Proof of sexual assault requires proof of intention to touch on the part of the accused and lack of consent, expressed through the words or actions (or lack thereof) of the complainant.
Consent is the key issue of a sexual assault prosecution and defence. Consent is an affirmative and ongoing agreement. Implied consent and mistaken belief of consent are not recognized by Canadian law. This means that consent must be actively sought and affirmed, and cannot be assumed based on the other’s inaction. Consent can also be withdrawn at any time, in which case continued sexual activity is not consensual. In a sexual assault case, the accused must prove that they took reasonable steps to determine consent. Consent is not valid if it has been obtained by use, threat or fear of force, fraud, or by a person in a position of authority.
What are Common Defenses in Sexual Assault Cases?
Only a fraction of sexual assault cases result in a guilty verdict, but it is an area of law that is being taken increasingly seriously and it is important to have a defense lawyer who is knowledgeable and up to date in this area. There are a few common defenses which may apply to your case.
How does consent factor in?
The circumstances of the alleged assault will be examined thoroughly by the Court to determine if consent was given at any point. They will attempt to determine if a reasonable person in the same situation, aware of the circumstances, would have taken further action to verify consent. If not, the defense of honest belief applies.
How can one challenge the complainant’s testimony?
The credibility of the complainant’s testimony may be challenged within the bounds of Canada’s Rape Shield Law. This law sets strict guidelines on if and how a complainant’s sexual history with the defendant or others may be used by the defense. This measure is intended to prevent the harmful use of sexual stereotypes and stigma against complainants in sexual assault trials.
However, the complainant’s testimony can and will be scrutinized in a preliminary hearing to investigate inconsistency and issues of credibility, and to build a strong cross-examination.
Does a complainant’s motive affect a sexual assault defense?
In some cases, the complainant’s motive for bringing an allegation forward may be an area of defense. For example, if it is found that the complainant is attempting to gain an advantage in a divorce or custody case by making the allegation.
What about cases of mistaken identity and the accused having an alibi?
If the complainant cannot fully identify their attacker, for example if the assault occurred in darkness, then there is the possibility of mistaken identity. This can be a viable defense.
Another potential defense is if the accused can prove an alibi for the time of the assault. Video evidence and witness testimony are very important to this defense.
What would constitute a Charter rights violation?
If police made errors in protocol during arrest and arraignment, this can be grounds for the charges to be dismissed. This may include encouraging self-incriminating statements, threats or lies, illegal searches of property or person, or not informing you of your right to counsel before questioning.
What are the potential outcomes of a sexual assault charge?
A conviction of sexual assault has severe consequences. Most sexual offenses under the Criminal Code carry a mandatory minimum jail sentence. Sentences of over two years are common for more serious offenses. Additionally, someone convicted of a sexual offence may be required to register on the sex offender’s registry and proved DNA to the federal DNA databank.
Many sexual assault allegations do not go to trial, and the majority of those that do, do not result in a guilty verdict. However, it is important to have an experienced lawyer to represent you from the very beginning to protect your interests and ensure the best outcome. If convicted, it is possible to argue for minimum penalties in order to avoid or reduce jail time.
What do I do if I am charged with sexual assault?
If you are facing allegations or charges of sexual assault, it is important to get a lawyer who is experienced and knowledgeable in this area right away. Even if you know you are innocent, it is important to have legal representation and guidance before speaking with police or attempting to navigate the situation on your own.
Let us Help
Being charged with a criminal offence is a life-changing event but you don’t have to face this stressful situation alone. Choosing a criminal lawyer that best represents your rights is important both to ease your fears and to advise and help you through the legal process. At Kolinsky Law, our reputation, years in practice, and expertise help you find the best outcome possible no matter your situation.
or Call for a Consultation