Sexual assault

Sexual assault is a serious offence with serious consequences. What is this offence and what are the possible defences?

Elements of sexual assault

In a sexual assault case, the prosecution must prove that the following elements were met at the time of the commission of the offence, otherwise the accused person cannot be found guilty:

1. Actus reus (material element)
   • Assaulting another person (touching);
   • Assault of an objectively sexual nature (for example, a slap may be assault, but would not be considered sexual assault);
   • Lack of consent or vitiated consent (consent can be given and then withdrawn at any time during the act).
2. Mens rea (mental element)
   • The perpetrator has a general intention to assault;
   • The perpetrator had knowledge (or was blindly voluntary) of the absence of consent or of a defect in consent.

Indeed, the accused’s belief in consent is very important. Where the accused alleges that he or she believed that the complainant consented to the sexual relations, the judge, if satisfied that there is sufficient evidence, may advise the jury to consider the evidence in determining the accused’s guilt. In other words, if the evidence raises a reasonable doubt as to the guilt of the accused, it can be used as a defence for the accused.

The concept of consent

It is important to note that implied or implied consent does not exist in criminal law. Consent must be explicit, free and informed.

Here are some examples of times when an individual is unable to consent to sex:

• The person is asleep or unconscious;
• The person is severely intoxicated by alcohol or drugs;
• The person is under the minimum age to consent;

Capacity to consent requires that the complainant be lucid and able to understand the physical act, their sexual nature and the precise identity of their partner, and that they has the choice of whether or not to engage in sexual activity.

Using a condom

The Supreme Court of Canada established in Kirkpatrick that when the use of a condom is a condition for having sexual relations with a person, the condom becomes fundamental to the consent of the parties. However, if a person fails to use a condom as requested by their partner, they can be convicted of sexual assault.

Sexually transmitted diseases

Misleading statements that may induce a person to consent and failure to disclose something vital to the health or well-being of others are generally considered to be defects of consent. However, this rule has its limits.

Case law has established that exposing a sexual partner to a “significant risk of serious bodily harm” constitutes fraud vitiating consent to sexual relations. The requirement of this risk should be interpreted as requiring a person to disclose their HIV status when there is a realistic possibility of HIV transmission.

There are certain defences that are possible, such as the use of a condom.

Sexual assault with a weapon

This offence is more serious than sexual assault because it involves the use of weapons or imitation weapons, or causing bodily harm to the complainant. The Criminal Code provides for a maximum penalty of 14 years’ imprisonment for this offence.

Aggravated sexual assault

The Criminal Code provides that a person commits a serious sexual assault if he or she commits a sexual assault by wounding, maiming, disfiguring or endangering the life of the complainant. This offence is the most serious form of sexual crime and the law provides for a maximum penalty of life imprisonment.

Sentences

The accusations of sex crimes are very serious. You face a lengthy jail time even if you do not have a criminal record, as well as being placed on the sex offender registry under the Sex Offender Information Registration Act.

It is therefore important to be represented by a lawyer specialized in this matter to have a full and complete defense. Contact our criminal law firm for a consultation if you are charged with a sexual assault offence.