The Sexual Assault Lawyers Guide To Charges & Defence

February 16, 2018

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 that violates a person’s sexual integrity 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 a sexual assault charge takes knowledge and skill.

Types of Sexual Assault

Sexual assault is one of the most reported sexual based offences. There are three main types sexual assault allegations in the Canadian Criminal Code:

  1. What is referred to as simple 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

Sentencing ranges for these criminal offences Conditional Sentence Orders (house arrest), to jail sentences up to 18 months on summary convictions and to 14 years for indictable convictions. Sentences under 2 years in jail will often have Probation Orders and there may be orders to report under the national sex offender registry.

Sexual Assault With a Weapon

Sexual assault with a weapon, if the assault is for a sexual purpose, 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

If a firearm is used during the commission of an offence of a sexual nature the mandatory minimum sentence is 5 years in jail. If a weapon other than a firearm is used the minimum sentence of 4 years. The maximum sentence is 14 years for any offender found guilty of using a weapon during a sexual offence.

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

I’m Being Added to the National Sex Offender Registry. Now What?

Aggravated Sexual Assault

An aggravated sexual assault conviction always requires imprisonment. These are sexual assault allegations 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 charge.

Aggravated Sexual Assault Penalties

Punishments for accused found guilty by a judge on aggravated sexual assault charges face jail sentences of either 4, 5 or 7 years to life depending the circumstances . An experienced sexual assault lawyer will understand strategies to mitigate sentences and obtain the best results. Also, a sex offender will be added to the sex offender registry.

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 if previously the complainant consented.

Defenses in Sexual Assault cases

Since the biggest factor is consent, this is the focus of most sexual assault defences. A sexual assault 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 circumstance surrounding sexual activity, 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. According to the Criminal Code of Canada they are not, however, the same thing. Most notably, the criminal code notes that sexual assault is criminal, sexual harassment is not always. A sexual offence 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.   

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