Toronto Sexual Assault Attorney

The Sexual Assault Lawyers Guide To Charges & Defence

Sexual assault lawyers deal with complex laws and evidentiary issues. To help those who are facing sexual assault charges or looking to better understand them, we present the following guide.

What is Sexual Assault in Canada?

Sexual assault is any physical contact of a sexual nature without consent. It often involves acts which including:

  • Physical sexual touching
  • Forcing sexual acts through coercion
  • Forcing sexual acts through physical force

It is one of the most common forms of assault. In fact, the most recent Statistics Canada release estimates over 600,000 annual self-reported sexual assaults.

As a result, the best assault lawyers have experience in sexual assault charges. In today’s social climate, defending against sexual assault charges takes knowledge and skill.

 

Types of Sexual Assault

Sexual assault is one of the most reported sexual based offences. There are three main types of sexual assault:

  1. Sexual assault
  2. Sexual assault with a weapon, threats to a third party or causing bodily harm
  3. Aggravated sexual assault

 

Sexual Assault

Simple sexual assault charges generally involve little or no physical injury. Punishment depends on a number of factors including age, severity, and summary or indictable conviction. Maximum penalties are up to 14 years.

 

Sexual Assault Penalties

Type of OffenceMinimum SentenceMaximum Sentence
Indictablen/a10 years
Indictable offence + complainant under 16 years1 year14 years
Summaryn/a18 months
Summary offence + complainant under 16 years6 months2 years less a day

 

Sexual Assault With a Weapon

Sexual assault with a weapon, threats to a third party or causing bodily harm is an indictable offence. The harm, or threat of harm, to the complainant is more damaging and thus treated more severely. Any conviction results in jail time.

Sexual assault with a weapon does not require use of the weapon. It includes:

  • Using a weapon for sexual assault
  • Carrying a weapon during the event (real or imitation)
  • Threatening the use of a weapon

Threats to a third party fall into the same category. This occurs when the complainant is coerced through threats of bodily harm to a third party. For example, if the accused threatens to a harm friend or family member should the complainant not comply.

Causing bodily harm to achieve or force a sexual act is covered under the same charges. As well as being party to the offence with another person.

 

Sexual Assault With a Weapon Penalties

Type of OffenceMinimum SentenceMaximum Sentence
Using a prohibited/restricted firearm5 years (first offence)
7 years (subsequent offence*)
14 years
Using a firearm to the benefit of, at the direction of, or in association with a criminal organization5 years (first offence)
7 years (subsequent offence)
14 years
Using a firearm4 years14 years
Complainant under 165 yearsLifetime sentences
All other casesn/a14 years

*Subsequent offences are only taken into account within 10 years after the previous conviction.

Aggravated Sexual Assault

An aggravated sexual assault conviction always requires imprisonment. It is a sexual assault wherein the accused disfigures, wounds, maims, or otherwise endangers the life of the victim. It is an indictable offence and the most harshly punished type of sexual assault.

Other forms of assault, such as sexual assault with a weapon may be elevated to aggravated sexual assault if the accused causes, or risks, significant bodily harm to the complainant.

 

Aggravated Sexual Assault Penalties

Type of OffenceMinimum SentenceMaximum Sentence
Using a prohibited/restricted firearm5 years (first offence)
7 years (subsequent offence)
Lifetime sentence
Using a firearm to the benefit of, at the direction of, or in association with a criminal organization5 years (first offence)
7 years (subsequent offence*)
Lifetime sentence
Using a firearm4 yearsLifetime sentence
Complainant under 165 yearsLifetime sentence
All other casesn/aLifetime sentence

Domestic Sexual Assault

Domestic sexual assault occurs between siblings, spouses, and intimate partners. It isn’t technically a separate charge from sexual assault. However, it is generally treated more severely and may additional consequences of sentencing.

Like other forms of domestic assault, those convicted generally face:

  • PARS (Partner Assault Response Services) counselling
  • Peace Bond
  • Longer probation periods
  • Limited access to their home and children

Sexual assault lawyers are especially important in domestic charges, where access to your family is potentially on the line.

 

Consent

Consent is one of the most important aspects of sexual assault charges. The Canadian Department of Justice defines consent as, “the voluntary agreement of the complainant to engage in the sexual activity in question.”

Put simply, consent is agreeing to a sexual act of your own free will. Where there is consent, there is no sexual assault. However, consent can be tricky. It needs to be expressly given, the complainant can revoke consent before or during the act, and they must be capable of consenting.

Here are a few examples where consent is not legally recognized:

  • Someone else consented on the complainants behalf
  • The complainant is incapable of consenting (i.e. they are unconscious)
  • Sexual activity is induced through abuse of positions of trust, power, or authority (i.e. an employer, teacher, police officer)
  • Complainant expresses a lack of consent verbally or by their conduct, before or during the activity
  • The complainant cannot legally consent due to age

Age of consent is not cut and dry, but does follow some basic tenants:

    • Under 12 years old: Cannot consent under any circumstance
    • 12-16 years old: Consent given in some circumstances (limited to peers who are close in age)
    • 16 year old: Age of consent
    • Under 18 years old: Protected from sexual exploitation

 

Consent & Alcohol

The topic of consent while under the influence of alcohol is a controversial topic. A person can consent to sexual activity while under the influence of alcohol. However, a person can become intoxicated to a point where they are legally unable to consent.

When alcohol is involved, a role of the sexual assault lawyer is to try and establish when consent was given. If consent is given while the complainant was of sound enough mind to consent, then there is no assault, even if they become more intoxicated before the act.

However, the complainant can always revoke consent verbally, or through conduct, regardless of their state of mind or previous consent.

 

Sexual Assault Defence

Since the biggest factor is consent, this is the focus of most sexual assault defences. The lawyer attempts to demonstrate that the victim gave sexual consent. If this can be proven, sexual assault charges are generally overturned.

Proving consent is often difficult to prove. As such, sexual assault lawyers often use the complainant’s sexual history to suggest a high likelihood of consent being given. To this end, it has become common for sexual assault cases to involve social media activity in the defence.

In many sexual encounters, consent was not expressly given. The accused may have an argument that consent was implied, if not spoken. If the complainant was capable of consent, and their behaviour/interactions could reasonably assume consent, the court may rule in the defendant’s behaviour.

This doesn’t match the strictest legal definition of consent and relies on a genuine belief that the sexual activity was consensual.

 

Sexual Harassment & Sexual Assault: What’s the Difference?

Sexual harassment and sexual assault are terms that are often confused or used interchangeably. They are not, however, the same thing. Most notably, sexual assault is criminal, sexual harassment is not always. Sexual assault is generally physical, whereas harassment is more suggestive.

Sexual harassment can include:

  • Unwelcome sexual advances
  • Offensive remarks about a person’s gender
  • Requests for sexual favours
  • Physical intimidation

Sexual harassment is illegal in some instances, specifically in the workplace. It is generally a civil matter, rather than a criminal matter.

The recent sexual assault and harassment allegation in Hollywood have lead to much of the existing confusion between harassment and assault. While both are sexual offences, they are not equal charges.

 

Toronto Sexual Assault Lawyer

If you are facing sexual assault charges in Toronto, you need the best representation. William Jaksa has over a decade of experience as a top criminal lawyer. Contact the best sexual assault lawyer in Toronto to protect your rights and freedoms.   

Questions? Contact William Jaksa Today.

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