As with many other countries, the Canadian definition of sexual assault is broad. It encompasses any sexual activity that is unwanted. In addition to rape, this includes oral sex, fondling, kissing, and grabbing. It goes without saying that physical activity of a sexual nature is only legal when both parties have consented.
The official definition of consent to sexual activity, as outlined in section 273.1 of the Criminal Code, is stated as the voluntary agreement of the complainant to participate in the sexual activity in question.
To minimize ambiguity, the law concentrates on what an individual was subjectively feeling and thinking at the time of the interaction. Conduct or verbal expression or a combination of both are the only ways a person can legally communicates consent to sexual activity. Contrary to the belief of some, passivity or silence does not mean consent is given.
The Criminal Code states that consent is not given when someone:
- Does or says something that indicates they are not consenting to sexual activity
- Does or says something to indicate they do not want to continue in activity that has already begun
- Is not capable of providing consent because they are unconscious or extremely drunk or high on drugs and are not capable of consenting
- Submits to the activity because another individual abuses their position of power, authority or trust (such as a teacher or coach)
- Consents on the behalf of someone else
It is important to note that a person cannot claim he or she honestly believed consent was given under certain circumstances. If the accused was drunk at the time or elected to ignore signs indicating consent was not given, or if the accused did not take reasonable steps to ensure there was consent, an individual could easily be convicted of sexual assault.
A knowledgeable sexual assault defence lawyer can help you build a strong defence if you have been accused of charges of this nature.
Defence Against Allegations of Sexual Assault
To counter the claims of sexual, you have the following defences:
- Consent: To determine if a sexual assault took place, it must be established the sexual activity occurred against the will of the alleged victim. In order for the defence to establish a reasonable doubt that that the complainant consented, it usually boils down to a credibility and reliability contest between the complainant and the accused. Both parties often have their own recollection of what happened. A good criminal defence lawyer can often successfully challenge the complainant during cross examination and obtain a not guilty verdict. In some instances, consent will be impossible to prove (i.e. where the alleged victim is mentally challenged or a minor or was very drunk or asleep at the time of the sexual activity).
- Innocence: To claim innocence, the accused must create a reasonable doubt that they could not have committed sexual assault because they were in an entirely different location at the time the assault took place. Alternatively, the accused could argue that the sexual activity did not happen and is completely fabricated. Finally, the accused may claim they have been misidentified as the perpetrator.
The Best Sexual Assault Defence Lawyers in Toronto, Kitchener, London and Windsor
If you are charged and convicted of a sexual crime in Canada, your life will be permanently affected. Often, you will be required to register with law enforcement as long as you live. This is after dealing with other standard penalties of prison time and probation. Even after release from prison, those convicted continue to endure punishment by society, family and people who were once considered friends. Employers will generally avoid hiring someone with a criminal record for a sexual assault conviction and travel outside of Canada may be affected.
The sexual assault defence lawyers at Kruse Law understand what it takes to protect your reputation, freedom and rights. We have extensive experience providing solid legal counsel and winning court room representation to clients charged with any type of sexual crime.