Sexual Assault

Sexual Assault

Anyone can experience sexual violence (SV). SV is defined as a sexual activity where there is no consent. It affects people of all genders, sexual orientations, and ages.

Sexual assault and harassment are persistent forms of gender-based violence that are rooted in gender inequality. Sexual assault is the only violent crime in Canada that is not declining. Its impact goes far beyond survivors; dealing with the aftermath of sexual assault costs Canadians billions of dollars every year. 

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Criminal Code of Canada for Sexual Assault

The Criminal Code of Canada defines sexual assault as “any unwanted sexual act done by one person to another or sexual activity without one’s person’s consent or voluntary agreement” (Department of Justice, 2010).

The following is a streamlined description of the offenses from Part VIII, Criminal Code of Canada:

Level 1: Section 271 or Simple Sexual Assault

Sexual assault happens when a person is touched in any way that interferes with their sexual integrity. This includes kissing, touching, intercourse, and any other sexual activity with their consent. The maximum prison term is ten years.  

Level 2: Section 272 or Sexual Assault with a weapon/threats to a third party/ causing bodily harm

Sexual assault occurs in either of these four scenarios:

  • If a person is sexually assaulted by someone who has a real or imitation weapon and threatens to use it; 
  • The offender threatens to harm a third person, a child, or a friend if the person does not consent to a sexual act;
  • The offender causes harm to the person; and
  • More than one offender assaults the person in the same incident. 

The maximum prison term is 14 years. 

Level 3: Section 273 or Aggravated Sexual Assault

A sexual assault is considered as aggravated if the victim is wounded, maimed, disfigured, beaten, or in danger of losing their life while being sexually assaulted. The maximum prison term for aggravated sexual assault is lifetime. 

Sexual Assault According to the Nature of the Acts Committed

There are two forms of sexual assault based on the nature of the acts committed. 

Sexual assault with physical contact 

  • Rape/ Sexual Relations with Penetration

It happens when there is a penetration in the vulva or anus using a part of the body (penis, finger, tongue) or an object, or in the mouth with the penis.

  • Attempt to commit sexual assault with penetration (attempted rape)

As defined, attempted rape is an attempt to have sexual intercourse with someone without their consent, and no sexual penetration occurs. Generally, there is sexual touching involved. 

  • Sexual assault happens when there is intentional sexual touching or contact, either directly or through the victim’s clothing. Social contact does not include touching required for the routine care of a child or for attending to their day-to-day needs. 

Sexual Assault without Physical Contact

  • Sexual assault without physical contact

Sexual harassment does not constitute a sexual offense under the Canadian Criminal Code. However, if a criminal harassment offense is committed in a sexual context, it can constitute criminal sexual harassment.

There is no time limit to report a sexual assault to police. You can still report it even if it happened years ago. Coordinate with a sexual assault lawyer from Diamond & Diamond to assist you. Contact us now!

Sexual Assault Defenses  

There are four most common defenses required in sexual assaults. These are:

Identity

The victim should identify the accused as the person that committed the sexual assault. Forensic tools are sometimes used to establish or confirm the identity of the assailant. 

Sexual activity

The accused may claim that there never was any sexual activity that occurred between them and the victim. The sexual assault lawyer has to interview the client thoroughly to determine the motive for the false complaint. This will also give them the chance to gather evidence to discredit the accused’s credibility.

Consent

The main concern in many sexual assault cases is whether the sexual activity in question was consensual between the parties. These situation may lead the court to conclude that consent is not available:

  • The complainant is too intoxicated to consent
  • The complainant does not have the mental capacity to consent
  • The complainant revokes consent during the activity
  • The complainant is under the age of 16 (see the “close-in-age” exception noted above)

Mistaken Consent

An accused can also advance the defense that they honestly but mistakenly believed that there was consent with respect to the sexual activity. There are limits on this defense in that the accused cannot rely on his self-induced intoxication, being wilfully blind or reckless, or not taking reasonable steps to ascertain if the complainant was consenting.

Sexual Assault Laywers in Canada

An experienced and skilled sexual assault lawyer in Canada is knowledgeable about attacking the complainant’s credibility concerning the allegation.Their expertise in sexual assault cases is crucial as there are limits in which areas of credibility are allowed to be attacked and require special applications.

If you or somebody you know is a victim of sexual assault, consult our lawyers from Diamond & Diamond. We would be glad to assist you and win your case.

pro tip icon

Pro Tip

Hold on to any items you have during the assault as they can be evidence. This will help in the investigation.

Sexual Assault FAQs

How do you know if someone is consenting to sexual activity?

You know someone is consenting to sexual activity when the other person has clearly said yes without being pressured. He/She has given you permission to do something. Consent needs to be enthusiastic and ongoing. A clear “yes”, affirmative words, and positive body language are manifestations of what consent is.

What is the difference between sexual assault and sexual harassment?

Sexual assault refers to unwanted sexual activity, including touching and attacks that occurs without the consent of the victim. Such acts are considered criminal.

Sexual harassment is a broad term, including various types of unwelcome verbal and physical sexual attention. It may take the form of jokes, threats, comments about sex, or discriminatory remarks about someone’s gender. It generally violates civil laws, but in many cases is not a criminal act.

Are there limits on attacking a complainant’s credibility in a sexual assault case?

Yes, there are limits on attacking a complainant’s credibility in a sexual assault case. It is no longer permitted for the accused to question the sexual history of the complainant in a sexual assault case. Today, a special application must be brought before the trial judge before this line of questioning.

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