Sexual Assault
A number of factors are considered when determining whether or
not the conduct of an accused is sexual in nature.
 the part of the body touched
 the nature of the contact
 the situation in which it occurred
 the words or gestures accompanying the act
 all other circumstances surrounding the conduct, including
threats, which may or may not be accompanied by force.
There are 3 levels of sexual assault that parallel the 3 levels of
assault. The definition of the first level of sexual assault is the
same as assault, except that it occurs in relation to sexual
conduct.
The second level is defined as “Every person…who, in
committing a sexual assault, (a) carries, uses or threatens to use
a weapon or an imitation of a weapon; (b) threatens to cause
bodily harm to the a person other than the complainant; (c)
threatens to cause bodily harm to the complainant; (d) is a party
to the offence with any other person, is guilty of an indictable
offence and liable…to imprisonment for a term not exceeding 14
years.” This is a general intent offence which means that the
words “knowingly” or “with intent” are not included. Conviction at
this level can lead to up to 14 years in prison.
Aggravated sexual assault is the most severe form of sexual
assault. This is a sexual assault that includes wounding,
maiming, disfiguring or endangering the life of the complainant.
An accused found guilty of sexual assault can receive up to life
imprisonment.
The actus reus of sexual assault is the sexual touching to which
the victim does not consent. The mens rea of sexual assault can
rest on the knowledge that the victim gave no consent;
recklessness; or wilful blindness (the perpetrator avoids asking
the victim if consent is being given). Consent is frequently an
issue in sexual assault trials, especially since there are usually
few witnesses to sexual assault.
Consent is not a defence where the victim is under the age of 14,
unless the accused is less than 3 years older than the victim.
Self-induced intoxication is not a defence if the accused drank so
much that loss of self-control was bound to occur.
A spouse can charge the other spouse for any level of sexual
assault whether or not they are living together.
Is the past conduct of the complainant relevant in a sexual assault
trial? These factors may influence the judge and jury in terming
whether or not consent was given or if the accused honestly
believed it was. The Criminal Code now prohibits evidence of
sexual reputation from being raised in court in order to challenge
or support the credibility of the complainant. However, evidence
about sexual activity of the complainant can be introduced after a
judge has determined its value to the fairness of the trial. Some
personal records of the complainant can be entered into evidence
at trial. Among the records are: medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and
social services records as well as person journals and diaries.