What’s the Difference Between Sexual Assault vs. Sexual Harassment?

January 12, 2021

The terms sexual assault, sexual abuse and sexual harassment are often used interchangeably when referring to any type of sexual violence or sexual misconduct. From a legal standpoint, they are all very different. Not all terms are defined by the Criminal Code of Canada. In this post, we’ll examine the legal definition of what constitutes sexual abuse, sexual harassment and sexual assault and discuss your options if you are accused of crime involving sexual violence. At times social media can be responsible for the haphazard manner in which these terms are mistakenly used.

An Overview of Sexual Misconduct Terms

Sexual harassment is harassment based on your sex, sexual orientation, gender identity or gender expression. It refers to many types of unwelcome sexual advances, verbal comments, and behaviour, including jokes, threats and discriminatory remarks about a person’s gender. 

Sexual assault is a legal term used that refers to any is any non-consensual physical contact of a sexual nature. It generally refers to acts of sexual violence including unwanted kissing or unwanted sex. It also includes behaviour that uses force, threats, or intimidation or coercion to make you do something sexual that you do not want to do. Sexual Assault is a criminal act. 

Sexual abuse refers to assault where the perpetrator is in a position of power over the victim, such as a coach, or teacher and generally refers to an adult’s behaviour towards children.  Sexual abuse can include unwanted sexually touching, sexual advances, forcing a victim to touch a perpetrator in a sexual way or forcing a victim to be exposed to sexual activity or sexual body parts. 

The Legal Definition of Sexual Harassment in Ontario

According to the Ontario Human Rights Code, sexual harassment is “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” Sexual harassment can include making sexual jokes, asking for sex in exchange for something, making comments about a person’s physical appearance, bullying based on sex or gender and spreading sexual rumours or gossip (including online). Harassment is often a pattern of behaviour that occurs over a period of time but can also be a serious one-time incident.

When is sexual harassment considered criminal harassment?

Criminal harassment, also known as stalking, occurs when the behaviour causes a person to fear for their safety or the safety of anyone known to them. It includes “harassing behaviour including repeatedly following, communicating with or watching over one’s dwelling home.” 

How is sexual harassment proved in court?

To prove sexual harassment in court, a claimant must show a human rights tribunal that sexual harassment took place. They do not need to show proof beyond a reasonable doubt, only that there is evidence to support the allegation that the comments or conduct “more likely than not” took place and that the behaviour was sexual harassment within the meaning of the criminal code. 

Sentencing information for sexual harassment 

Anyone convicted of criminal harassment is liable to imprisonment for a term not exceeding ten years; or an offence punishable on summary conviction. 

Bail After Arrest

Arrested for Sexual Assault, section 271.

The legal definition of sexual assault in Ontario

Sexual assault is defined in section 265 as an assault of a sexual nature such that the sexual integrity of the victim is violated. The core elements of the offence requires the sexual touching (actus reus) without the actual subject consent of the complainant. And that the accused knew there was a lack of consent.

To determine if the contact or touching was of a sexual nature the police when laying the charges examine all the circumstances around the allegations. Was the touching for a sexual purpose? What part of the body was touched, the nature of the contact, words or gestures used that accompanied the touch and the other surrounding circumstances.

How is sexual assault proved in court?

To prove a sexual assault under s.271 of the criminal code, the Crown Attorney must present evidence at trial that proves such elements as:

  • the accused assault the complainant
  • the nature of the sexual contact or touching
  • that there was no consent
  • date and time of the incident
  • where the events took place, jurisdiction
  • the ages of the accused and complainant – important when minors are involved
  • any medical or forensic evidence
  • the relationship between the accused and victim – were they strangers, married, etc…

Like all criminal offences, the Crown Attorney bears the onus of proving the sexual assault charges beyond a reasonable doubt. The crown must prove that the accused intended their actions, that it was non-consensual, that they knew the conduct was unwanted, and the act happened.

Sentencing information for sexual assault

Sexual assault is a serious crime and has serious legal repercussions. The sentencing ranges for sexual assault are considerable depending on the allegations, the personal circumstances of the offender and the various aggravating and mitigating factors. If found guilty, it can result in a maximum jail term of 10 years, or the Crown may elect to proceed summarily with a maximum sentence of 18 months in jail. 

When would you need to register as a sex offender?

If you are convicted of sexual assault, you must register with the National Sex Offender Registry Database.  

If you have been charged with sexual assault, hiring an experienced lawyer is the best thing you can do. William Jaksa is an experienced criminal lawyer who has successfully defended clients accused of sexual assault. Contact William Jaksa today for a consultation. You don’t have to face this alone.

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