The charge of sexual assault arises when an allegation is made that an accused violated the sexual integrity of a complainant for a sexual purpose. The assault is characterized as touching with the intention to touch. The sexual purpose is defined by both the act and the surrounding circumstances. The presence or absence of sexual gratification is irrelevant.
On a sexual assault charge, the prosecutor must prove that the accused knew the complainant did not consent, or that the accused was reckless concerning obtaining consent, or was willfully blind about whether the complainant consented.
Defences and Considerations
Consent is often the primary consideration before the court on a sexual assault charge. Consent is not established where the accused was willfully blind or reckless concerning whether consent was obtained.
Consent is a defence to a number of current criminal offences and many historic offences. In most cases, whether the complainant consented to the touching is a central question. The trier of fact, either judge or jury as the case may be, are required to determine if the facts raise the defence of consent and if all elements of the offence have been proven beyond a reasonable doubt.
He Said / She Said and Credibility
The credibility of the complainant and the accused are often of primary importance in sexual assault cases, particularly in he-said/she-said situations. The rule is that if the trier of fact believes the evidence of the accused, they must acquit the accused. If they do not believe the accused, but nevertheless have a reasonable doubt, they must acquit the accused. If the evidence, including the evidence of the complainant, raises a reasonable doubt, they must acquit the accused.
Historic Offences: Rape
The offence of rape was removed from the Criminal Code and replaced with the current provisions that prohibit sexual assault. An accused can still be charged with rape if the offence occurred while the earlier provisions were in effect. The Charter of Rights and Freedoms guarantees that a person convicted of a historic offence such as rape has the benefit of the lesser punishment in the event that the punishment has changed.
Historic Offences: Indecent Assault
An assault (touching without consent) which is indecent in nature constituted indecent assault before the section was removed from the Criminal Code. A person can still be charged with the offence if it occurred when the legislation was in effect. Many acts which were once classified as indecent assaults are now considered sexual assault.
When considering whether an act was an indecent assault, the court considers whether the act itself was indecent in nature, or whether the surrounding circumstances indicate that the intention was indecent.
Historic Offences: Gross Indecency
Gross indecency was defined as an act that constitutes a very marked departure from the conduct expected of an average Canadian in the circumstances of the offence. The offence was removed from the Criminal Code. Some acts which would have been considered gross indecency are no longer prohibited in Canada. Others are now classified as sexual assault.
Gross indecency charges may still be laid if the offence is alleged to have taken place when the provisions were in effect. As with rape and indecent assault, a person convicted of gross indecency is entitled to the benefit of the lesser punishment in the event that the punishment has changed over time.