It’s one of the most discussed and dissected criminal charges: sexual assault.
In this blog post, we discuss sexual assault, the big question of consent, the penalties if convicted and possible defences to charges.
What is Sexual Assault?
Firstly, it is important to state that the victim of a sexual assault can be a man or a woman, and the attacker can be both the same and opposite sex. As long as you feel that you have been attacked, then you have grounds for assault.
According to the Edmonton Police, sexual assault is “defined as an assault of a sexual nature that violates the sexual integrity of the victim.”
They highlight several factors for assault, including “parts of the body touched; the nature of the contact; the situation in which the contact occurred; the words and gestures accompanying the act; all other circumstances surrounding the act and any threats that may or may not be accompanied by force.”
The Calgary Police also offer similar descriptions, stating that the act “occurs if you have been kissed, fondled, groped or forced to engage in sexual activity without your permission or consent.”
They do highlight one particular grey situation – consent. They state that “consent means you voluntarily agree to participate in the sexual activity in question.”
As such, sexual assault can include penetration (anal, oral and sexual intercourse) – also known as rape – groping and kissing.
The Big Question To Sexual Assault – Consent
Perhaps the biggest question that surrounds sexual assault is that of consent. That means, according to the Calgary Legal Guide, that both parties give “permission for something to happen or agreement to do something” in a sexual nature.
The following situations, however, highlight when consent is not considered:
- When someone uses a position of authority, trickery or fraud to force the person to have sexual relations
- When the victim is threatened with violent or verbal abuse and is forced to have sexual relations
- When the victim is not mentally capable of consenting to the activity, such as if they are unconscious, mentally impaired, vulnerable due to age and extremely intoxicated from drinking or drugs.
- When the victim decides to withdraw their consent and no longer wants to participate in the sexual activity. Consent can be withdrawn at any time, even if the person has initiated the activity.
The Punishments For Sexual Assault
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Charges, though, will vary on the nature of the assault, if a weapon was used, if bodily harm was caused and the number of offences committed.
The individual will also be placed in the National Sex Offender Registry, thereby denying them work at certain jobs, travel plans and being forced to inform the neighbourhood of their presence. The person will be on the Registry for 20 years.
The Case Against Sexual Assault
Factual Innocence – This is usually the strongest defence because the facts and evidence prove that the individual did not commit the crime. It could be a case of mistaken identity, false accusation, or no sexual contact of any kind.
Violation of Constitutional Rights – The manner in which authorities handled a case and restricted a person’s rights can be used as a defence. If the police fail to abide by the Canadian Charter of Rights and Freedoms, the case could be denied.
Mistaken Consent – The defendant might have grounds to raise the defence of “mistaken consent”, believing that the victim agreed to the sexual activity. The court must be convinced that the defendant did indeed act with consent, highlighting the necessary steps to ensure the victim was in agreement.
Overall, it varies from case to case, and if you have been charged with sexual assault, and believe that you are innocent or have mistaken consent, your sexual assault lawyer, can guide you on the best course of action.
Joel Chevrefils, Calgary Criminal Defence Lawyer is here to defend you against all criminal charges. When charged with a criminal offence, the first thing you should do is call your trusted Calgary criminal defence lawyer. His professionalism can help you with all concerns regarding your charges and the complex nature of Canada’s legal system. Chevrefils can help you with your charges in and outside Calgary, including Provincial Courts in Cochrane, Airdrie, Okotoks, Red Deer and Edmonton. Trust your case to Calgary’s most experienced criminal lawyer. Call today on 403-830-1980 or email [email protected] for your free consultation.