Sexual Assault is a Serious Offence
Sexual assault is an extremely serious offence throughout Canada for which Crown Prosecutors persistently seek and obtain convictions. The penalties for sexual assault and other sexual offences can be severe, with many sex offences in the Criminal Code carrying minimum mandatory jail sentences upon conviction. Prison is very much a likelihood, but so is mandatory registration on the Sexual Offender Registry, as well as the entry of other orders restricting certain rights.
Just an accusation of sexual assault can be enough to permanently damage your reputation and ruin your personal and professional life, whether or not the allegations are true or whether or not you are convicted.
Sexual Assault Charges Are Difficult to Defend Without Expert Legal Representation
Section 271 of the Criminal Code of Canada defines sexual assault as any touching of another person without their consent where the touching is of a sexual nature, or where the sexual integrity of the alleged victim is violated. In order to determine if an assault was sexual in nature, a court may consider the parts of the body that were touched, the nature of that contact, the situation in which it occurred, and any words and gestures accompanying the act. The motives of the accused may also be taken into consideration.
Consent can often be a determinative factor in a sexual assault case. Consent is sometimes a complex legal and factual question that is evaluated by considering many factors: the words and conduct of the parties, including whether the complainant was incapable of consenting to the activity (for example, due to intoxication or mental illness); whether the complainant was induced into the activity through the misuse of power or authority; whether the complainant expressed a lack of agreement; whether all reasonable steps were taken by the accused person to confirm consent; whether there was an honest, but mistaken belief in consent and whether the complainant was under the age of consent.
Given the severe consequences of a sexual assault charge and possible conviction, you should contact an experienced criminal lawyer immediately if you’ve been accused of or charged with sexual assault. You need a defence lawyer who regularly deals with sexual assault cases, who can help you navigate the process, and who will work with you to develop the best strategy to defend yourself against these serious charges.
Sexual Assault Definition
The Supreme Court of Canada defines sexual assault as an assault committed by a male or female in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The crime of sexual assault can also be defined as any type of physical contact or behavior that is sexual in nature and occurs without the explicit consent of the complainant. Sexual assault includes such actions as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, attempted rape and other non-consensual activities. Sexual acts involving a person under the age of consent or where the adult is in a position of authority are also considered sexual assault, whether or not there was ‘consent’ by the minor.
Canada’s Criminal Code defines assault including sexual assault, as when a person intentionally forces another person without their consent to perform certain actions under certain circumstances as outlined in section 265 of the Canadian Criminal Code:
265 (1) A person commits an assault when
- (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
- (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to affect his purpose; or
- (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
It is not necessary to actually use force to be accused of sexual assault. The mere threat or the attempt of the use of force against another person without their consent is sufficient. Physical harm does not have to actually occur to result in an accusation. Carrying or displaying a deadly weapon may be all that is necessary to establish a credible threat. Acting in a crazed, menacing or violent manner is another.
The Canadian Criminal Code, section 271 states further, that anyone who commits a sexual assault is guilty of:
- an indictable offence which may result in a maximum jail sentence of 10 years or; if the complainant is under 16 years of age, to a minimum jail term of one year and a maximum of 14 years; or
- an offence punishable by summary conviction with a maximum jail sentence of 18 months or; if the complainant is under 16 years of age, to a minimum jail term of 6 months with a maximum of not more than two years less a day.
Sexual Assault is a serious crime that carries severe penalties. The complainant has the difficult decision to make as to whether or not to report the details of the alleged crime to police. Alleged victims are mistakenly of the opinion that they are the ones who make the decision as to whether or not to press charges. That is not the case. In a sexual assault case, it is the provincial Crown prosecutor that decides if charges will be brought. Once a person calls 911 or walks into a police station to press charges, the decision as to whether or not to make an arrest is out of their hands. When charges are brought the victim of sexual assault may be required to testify in court as a witness to the crime and their testimony can be demanded if it will aid in the prosecution of the case. The allegation of sexual assault can ruin the accused’s reputation as a criminal record and registry in Canada’s Sex Offender Registry can have far reaching consequences on one’s ability to get a job or a promotion, buy a house or rent an apartment, and much more.
If you plead guilty to sexual assault, the first of many hardships you may suffer are the consequences of having a criminal record. Having a criminal record can cause you to lose your job and make it difficult to find another. You may also be banned from traveling internationally or from obtaining a license to own a gun.
Indictable Offence – Depending on the facts of the case, the crime of sexual assault can be tried as an indictable offence at the discretion of the prosecution. As such, a conviction on sexual assault charges will result in a more substantial jail sentence of up to 10 to 14 years, depending on whether the alleged victim was a minor.
Summary Offence – Even if convicted as a summary offence which results in lesser sentences, the crime of sexual assault can result in a jail term of up to 18 months.
Whether or not the case is tried as an indictable or summary offence, a conviction will result in a criminal record that can hinder one’s employment and travel freedom.
Register as a Sex Offender
The convicted sexual offender may have to register with the Sex Offender Registry. The Sex Offender Registry was established in Canada in 2004 as a way to keep track of the whereabouts of convicted sexual assault offenders. People on the registry cannot travel outside their province without first notifying officials. They are also not allowed to talk to children or be within the vicinity of schools or public pools.
Aggravating Factors – When convicted of a sexual assault the judge will take aggravating factors into consideration. Aggravating factors may make the penalties more severe and are under the broad discretion of the judge. Aggravating factors include how long the defendant pre-planned and organized the sexual attack. Finding a “rape kit”, i.e., duct tape, rope or a weapon in the defendant’s automobile would be considered an indication of pre-planning.
Mitigating Factors – When convicted of a sexual assault the judge will take mitigating factors into consideration in sentencing. Mitigating factors can influence the judge to set a more lenient penalty. Mitigating factors can be the mental health of the defendant at the time of the crime, or substance abuse or misuse issues that potentially affected the defendant’s mental state. If there was no pre-planning and ambiguous circumstantial evidence or a lack of mental capacity, one may argue mitigating factors existed and seek treatment in a community treatment center instead of incarceration.
A Question of Consent
In cases where the only evidence is the testimony of the plaintiff, the ambiguity of consent may become the central issue. The Canadian Criminal Code defines a lack of consent as when force is used by the defendant, the defendant makes threats to apply force, or fraudulently misrepresents themselves as an authority figure like a priest, teacher or law enforcement officer. When drugs and alcohol are involved, consent becomes even more complex. Consent, or lack thereof, can only be determined within the overall context of the alleged incident of sexual assault.
Hiring a Sexual Assault Defence Lawyer
Experience and a successful track record are the factors to look for when hiring a sexual assault defence lawyer. Our sexual assault defence lawyers are zealous advocates for the rights of those wrongly accused and will work with you and behind the scenes to build an effective and thorough defence. If you have been arrested and charged with sexual assault call the Kruse Law firm today for a free case evaluation. We work with sexual assault clients throughout Ontario and are waiting to hear from you.