SEXUAL ASSAULT
The offence: sexual assault occurs when there is sexual activity without the victim's consent or voluntary
agreement. When this happens on a date...it has been called date rape.
Question: How does the law define a sexual assault?
Answer: This definition sets out the elements for the least severe level of sexual assault.
Sexual assault occurs when...
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a person intentionally "applies force" to another person
this is done without the victim's consent or voluntary agreement
sexual activity is involved.
Source: section 265 of the Criminal Code. See also s. 271, 272, 273.Thus it is a criminal
offence to engage in sexual activity with another person who does not consent.
Question: What does "apply force" mean in a sexual assault situation?
Answer: Think of "force" as "physical contact". There does not have to be a violent demonstration of force.
Touching certain body parts, for example, also fits the definition of "applying force".
Question: What does "sexual activity" mean?
Answer: In this story there is little doubt that sexual activity was involved. In other cases it is not so clear. The
part of the body touched, the nature of the contact, the surrounding circumstances including what was said - these
are all relevant factors in determining if there was a sexual aspect to the "physical contact".
The defence: in many cases the accused person argues that the victim consented, or agreed, to the sexual activity.
Question: Most victims will say they didn't consent, and most accused persons will say the victim did consent.
Does the law help people interpret the meaning of "consent"?
Answer: The first source to consult for a definition of what is and isn't "consent" is the Criminal Code. For the
purposes of this scenario, the following excerpts are relevant. Note that the Code uses the word "complainant" rather
than "victim".
Consent means...the voluntary agreement of the complainant to engage in the sexual
activity in question Source: section 273.1, subsection (1) of the Criminal Code
No consent is obtained...where
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the complainant is incapable of consenting to the activity;
the complainant expresses, by words or conduct, a lack of agreement to engage in the
activity; or
the complainant, having consented to engage in sexual activity, expresses, by words
or conduct, a lack of agreement to continue to engage in the activity.
Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Criminal Code
Note: This is also referred to as the NO MEANS NO! law. The last clause states that if consent is given but
then withdrawn during the activity, then this must be taken as a NO.
Question: One can imagine that there are situations where there is confusion about this issue and the accused
person honestly thinks the other person is consenting. What then?
Answer: When this happens, the issue changes. The complainant says there was no consent. The accused's reply
is that even if there was no consent, he/she had an "honest but mistaken" belief that there was consent. The courts
have accepted, in the past, such an explanation as a valid defence. More recently the courts have been limiting the
use of "honest belief" as a defence.
Question: When is "honest belief in consent" a legitimate defence?
Answer: This is clarified in the Criminal Code:
Where an accused alleges that he believed that the complainant consented to the
conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all
the evidence relating to the determination of the honesty of the accused's belief, to
consider the presence or absence of reasonable grounds for that belief.
Source: section 265(4) of the Criminal Code
There must be sufficient evidence which, if believed, would constitute a defence. It is not enough for the accused to
simply claim the he/she honestly believed there was consent.
Question: When is "honest belief in consent" not a valid defence?
Answer: This, too, is set out in the Criminal Code.
It is not a defence...that the accused believed that the complainant consented to
the activity...where
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(a)the accused's belief arose from the accused's
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(i)self-induced intoxication, or
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(ii) recklessness or wilful blindness; or
(b)the accused did not take reasonable steps, in the circumstances known
to the accused at the time, to ascertain that the complainant was
consenting.
Source: section 273.2 of the Criminal Code
Wilful blindness arises when the accused, who has become aware of the need for some
inquiry, declines to make the inquiry because he or she does not wish to know the truth,
preferring to remain ignorant.
Note: It is always necessary to consult current case law to find out how the law is
evolving. This can be done by consulting a lawyer who practices in this area.
*****The actual wording of the law has been simplified in this handout.