When a sexual assault is alleged and physical injuries have occurred, the complaint can be elevated to a more serious charge of sexual assault causing bodily harm. Bodily harm comes in many forms, including physical injuries, depression, flashbacks, and, post-traumatic stress disorder. All are types of injuries potentially associated with sexual assault.
The majority of cases of sexual assault are not presented to the police for a period of time after the alleged assault took place. When sexual assault is eventually alleged, physical evidence of bodily harm, even if it had occurred, is generally long gone. However, bodily harm is not limited to visible injuries. In the Canadian Criminal Code, “bodily harm” is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”
Sexual assault causing bodily harm is further defined in the Criminal Code section 272 as follows:
Every person commits an offence who, in committing a sexual assault,
- carries, uses or threatens to use a weapon or an imitation of a weapon;
- threatens to cause bodily harm to a person other than the complainant;
- causes bodily harm to the complainant;
Any person who commits sexual assault causing bodily harm is guilty of an indictable offence and liable under the Criminal Code. The penalties for a conviction on sexual assault causing bodily harm are as follows.
(a) If a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of:
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) In any other case where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.
When the charge of sexual assault causing bodily harm is made, the complainant may have called 911 and been taken by ambulance or driven to a local hospital emergency room. The complainant may have undergone a rape examination and any bruising or vaginal or anal tearing would be recorded in the test results. Bruising, broken bones, and lacerations are other forms of bodily injury one may claim were the result of an alleged sexual assault.
One might think that such evidence would make a strong case, however, rape kits have their drawback in that they can only prove that sexual intercourse has taken place, not that there was a lack of consent or that an act of force or violence occurred. Nor will this examination necessarily provide evidence that connects the alleged rape or assault to a particular person. This goes for allegations of bodily harm from sexual assault that involve lacerations or broken bones as well. Other types of physical evidence of bodily harm that we may have to defend against are biological in nature and the complainant will most likely try to tie these results to the alleged assault occurring on a specific date, or with DNA to a specific person.
In cases where evidence of bodily harm is present, the complainant still has a difficult task to prove that the bodily harm was caused by an act of sexual assault. It is our job as criminal defence lawyers to investigate if it was possible for such injuries to have occurred due to other circumstances or perhaps the injuries were self-inflicted or inflicted by another party.
Even if sexual contact that resulted in injuries is proven, a possible defence can be that the two parties engaged in consensual rough sex. Evidence of bodily harm may also be challenged if there are any inconsistencies in, or questions raised by the length of time that expired from the time of the alleged attack to the physical examination of the complainant. Once bodily injury evidence has been dismissed one can argue that the alleged sexual contact was consensual.
One limitation that we have is that one cannot claim that the sexual contact was consensual if the evidence of bodily harm is proven. It is generally believed that no one will consent to receive bodily harm. As confusing as this may seem, it only stresses the many reasons you need the best sexual assault lawyer you can find, one with knowledge and experience in defending sexual assault offences, including sexual assault causing bodily injuries. If you are convicted, the penalties of fines and jail time are severe and your life will never be the same.
Even though most sexual assault cases are challenging to prove, even when there is an allegation of physical harm, don’t be overly confident that you will be able to beat the charge of sexual assault causing bodily harm, without a vigorous defence. Michael Kruse is a highly respected criminal defence lawyer with over 27 years of trial experience in Ontario. Mike and his staff at Kruse Law will dedicate themselves to thoroughly investigating all the facts of and working zealously to have the charge dismissed or at least, lessened.