Under Canadian criminal law, sexual assault is defined as an assault which is committed in the circumstances of a sexual nature, such that the integrity of the complainant is violated. In determining whether the assault was sexual in nature, the court will consider several factors, such as what part of the complainant’s body was allegedly touched, what the context or situation was at the alleged time, the nature of the contact, the words or gestures accompanying the act, and any potential motives for the accused. At LawyerSelect.ca, we'll work tirelessly to connect you with a skilled and hungry Toronto Sexual Assault Lawyer.
Let’s get one thing straight from the beginning. Once police receive a complaint of sexual assault, they will almost always charge the alleged individual regardless of what that individual tells them happened. The prevailing public policy is for police to believe the allegations of the complainant over that of the accused insofar as they conflict. The policy’s purpose is to make it easier for victims of sexual assault to report the incident. If the complainant knows that police will believe her, she will be more inclined to report the incident. The effects of this policy are both positive and negative.
Being charged with sexual assault is a very serious matter. The potential sanctions upon conviction are very sever, and the lifelong stigma as a registered sex offender makes this one of the most serious offences in the criminal law. It is of the utmost importance that you hire a competent and driven Toronto Sexual Assault Lawyer who has experience defending sexual assault allegations. Therefore, you should always consult with a Toronto Sexual Assault Lawyer before speaking with police regarding any allegations made against you. It doesn’t matter if you think you’re innocent and have nothing to hide, because the sexual assault laws are so complicated that actions you may think are harmless may, in fact, have an incriminating effect on your case.
A skilled Sexual Assault Lawyer in Toronto can advise you on whether or not it’s in your best interest to provide a statement to police. And if you do provide a statement, how it can be used later on if you’re charged with the crime. Remember, it’s not a crime to remain silent. In fact, choosing to remain silent can never be used against you. Make sure you know your rights before you speak to police.
One of the most common issues in a sexual assault case is whether or not the sexual activity in question was consensual. The concept of consent may seem like a straightforward matter, but it is anything but that. The definition of consent has changed many times in the last 100 years. The current definition of consent is the voluntary agreement between the parties to engage in sexual activity.
What Situations Might Give Rise To A Lack Of Consent?
We’re obviously not going to try and cover all the possible scenarios on lack of consent, but here are a few examples:
How To Determine If Consent Was Given:
In coming to a determination on the issue of consent, the court will take into account anything the parties said, the conduct of the parties, and the reasonable steps taken by the accused to ensure that he had the complainant’s consent to engage in sexual activity. It is important to note that while the complainant’s words and conduct are relevant to determining the issue of consent, their silence is not. Any attempts by an accused to establish consent by arguing that the complainant remained silent or was passive will be refuted by the court.
In situations where the complainant may have consented originally, but later withdrew that consent (either by words or conduct), then if the accused continues engaging in the sexual activity regardless he may be found to be reckless and face a conviction for sexual assault.
The Accused’s Responsibility:
The law requires an accused to show that in the circumstances, they took reasonable measures to ascertain if the complainant was consenting. The courts have clarified the ambiguity of “reasonable measures” to NOT mean all reasonable steps. Instead, an effort to take some reasonable steps will suffice.
There is a misconception among Canadians that the minimum age of consent in Canada is 18 years of age. That’s incorrect, and it’s probably due to exposure to popular American media, which always refers to it as 18 years of age. In Canada, however, the minimum age of consent is 16 years of age.
Now with respect to persons between the ages of 12 and 13 years old, they are able to consent to sexual activity with a person who is not more than two years older than them, as long as that person:
With regards to persons between the ages of 14 and 15 years old, they are able to consent to sexual activity with a person who is less than five years older than time, as long as that person:
It is very important to understand that if a complainant is under the age of 16, and none of the above exceptions apply to them, then it will not be a defence to a sexual assault charge that the minor agreed to the sexual activity in question. A person under the age of 16, who doesn’t fall into any of the above exceptions, is not capable of giving consent under the criminal law. At LawyerSelect.ca, we’ll put you in touch with the best Toronto Sexual Assault Lawyers who will staunchly defend you against allegations of sexual assault.
An accused may be acquitted of sexual assault even if the complainant withheld consent, so long as the accused had an honest but mistaken belief that the sexual activity in question was consensual. The accused may be able to raise the defence of honest but mistaken belief in consent if they establish that they held a reasonable belief that the complainant affirmatively communicated consent, whether by way of words or actions.
However, the defence of honest but mistaken belief in consent cannot arise from any of the following circumstances:
The crime of rape is long extinct, as it was unworkably wide in scope consuming under it a myriad of sexual crimes that are unrelated to one another. The Criminal Code of Canada now contains several sexual offences, each dealing a specific area of the law. We discuss some of those offences below, but to get a fuller picture of the offences in this area you’ll need the assistance of a Toronto Sexual Assault Lawyer. At LawyerSelect.ca, our team of legal specialists are ready to find you the right lawyer.
Sexual Interference and Invitation to Sexual Touching: Sexual interference is when an accused touches a person under the age of 16 in a sexual manner, with any part of their body or an object. Invitation to sexual touching occurs when an accused encourages a person under the age of 16 to touch another person’s body in a sexual manner, with any part of their body or an object.
Sexual Exploitation of a Minor or a Person with a Disability: If a complainant is under the age of 18, then it is illegal for an accused person to have, or encourage, certain types of sexual contact when (1) the accused is in a position of trust or authority, (2) the complainant is in a relationship of dependency with the accused, or (3) the relationship is exploitative of the complainant. Similarly, if an accused person is said to be in a position of trust or authority over a complainant with a physical or mental disability, or if the disabled complainant is in a relationship or dependency with the accused, there are a number of scenarios where it would be illegal for an accused to encourage a disabled complainant to engage in sexual contact without obtaining their consent.
Voyeurism: When an individual is in a place where they have a reasonable expectation of privacy, then it is illegal to surreptitiously observe or record that individual, whether done in person, or remotely through the use of an electronic recording device. So for example, voyeurism can occur:
Child Pornography: The Criminal Code makes it unlawful to produce, distribute or have in one’s possession child pornography. The Criminal Code defines child pornography quite broadly, which includes both video and pictographic representations of an individual under the age of 18 engaging in sexual activity, as well as videos and pictures whose dominant characteristic is the depicting of a minor’s sexual organ or anal region.
If you didn’t find the information you’re looking for here, maybe you need the assistance of a skilled Toronto Sexual Assault Lawyer. At LawyerSelect.ca, we make it our business to know who the best lawyers are so that we can connect you with them. We encourage you to call us anytime, 24/7, to get a Toronto Sexual Assault Lawyer Referral. We're available by phone at (416) 419-6959, or online at LawyerSelect.ca, or click the button below for our referral form.