What is Sexual Assault?
Sexual Assault, basically described, occurs where an individual is subject to unwanted touching which is of a sexual nature. The physical contact need not be sexual intercourse, and can include a wide variety of unwanted touching. In short, it is an Assault that involves touching of a sexual nature.
Common Defences to Sexual Assault
Some of the common defences raised against these allegations include:
- The sexual touching did not happen at all;
- If the sexual touching did take place, it was consensual;
- If the sexual touching took place and was ultimately found not to be consensual, that the accused had an honest, but mistaken, belief that the other party had communicated consent.
The Supreme Court of Canada in R. v. Barton, 2019 SCC 33 held that, for the “honest but mistaken belief” defence to succeed, the complainant must have affirmatively communicated his/her consent by either actions or words. The focus is on the accused’s state of mind, and the issue is whether the accused honestly believed the complainant effectively said “yes” through his/her actions or words.
Consent is defined under s. 273.1 of the Criminal Code of Canada as the voluntary agreement of the complainant to engage in the sexual act in question.
The Criminal Code states that no consent is obtained where:
- the agreement is expressed by the words or conduct of a person other than the complainant;
- the complainant is unconscious;
- the complainant s incapable of consenting;
- the accused induces the complainant to engage in the activity in question by abusing a position of trust, power or authority;
- the complainant expresses a lack of agreement to the conduct in question;
- the complainant expresses a lack of agreement to continue the conduct in question.
If you or someone you know has been charged with this serious offence, contact Andrew Captan – Sexual Assault Lawyer for a free initial consultation.