What is sexual assault?
Sexual assault in Canada is criminalized by Section 271 of the Criminal Code. The offence is defined as an assault which is committed in the circumstances of a sexual nature, violating the sexual integrity of the victim. There are a variety of sexual assault offences including, sexual interference, sexual assault causing bodily harm, sexual exploitation, along with other calcifications of sexual offences.
Are there different types of sexual assault cases?
The type of sexual assault one is charged with depends on the circumstances surrounding the offense. Factors including the age of the complainant and the accused, along with the authority of the accused over the complainant are some of the factors that will determine the type of sexual assault allegations you are charged with. Any sexual assault is a serious crime that results in severe consequences for the accused person.
A sexual interference charge will result when the victim is below the age of sixteen. In general, a person cannot consent to a sexual activity unless they are 16 years of age. In such circumstances, if you are accused of having a sexual relationship with a person under the age of 16, even with their consent, you can be charged with sexual interference. There are some exceptions to this general rule, which include:
Sexual exploitation is another form of a charge which can arise in circumstances where the complainant is between the age of 16 years to 18 years of age and the accused person is in a position of trust or authority. The determination as to whether an accused was in a position of trust towards the young person when sexual relations occurred is essentially a question of fact having regard to all the circumstances of the relationship. In determining a position of trust, the courts look at factoring including:
Sexual assault with a weapon, or the same accompanying with threats to a third party or causing bodily harm is a much more serious offence under Section 272 of the Criminal Code. It is punishable with harsh penalties which may extend to imprisonment for life.
Similarly, aggravated sexual assault is an offence under Section 273 of the Code. An offence of aggravated sexual assault is constituted when the attacker, while committing sexual assault, also wounds, maims, disfigures, or endangers the life of the complainant. The accused in such cases can be held liable to imprisonment for life, along with minimum periods of mandatory imprisonment sentence which may extend to seven years in certain cases.
Criminal charges relating to sexual assault are extremely severe and can have a life-long impact on the person found guilty. In addition to a criminal record and potential imprisonment, a person guilty of a sexual assault will be placed on the Sex Offenders Registry. It is best to consult with a sexual assault lawyer who can help you navigate through the criminal justice system. Read our blog on when should you call an assault lawyer?
What is the punishment for sexual offences?
If the prosecution chooses to proceed by indictment, the accused will be tried before a Judge alone or a Judge & a Jury. In such cases, any person who commits sexual assault is liable to imprisonment for up to ten years. If the victim is under the age of 16 years, the accused can serve as much as fourteen years of imprisonment. Although mandatory minimum sentences were applicable, the court has held them to be unconstitutional.
However, the prosecution may decide to try the offender by a summary conviction. In that case, the offender can serve up to eighteen months of imprisonment. If the victim is a minor i.e. under 16 years, the offender can serve a minimum sentence of six months of imprisonment and the maximum term will be two years. The constitutionality of the minimum sentence has been challenged and received mixed treatment from the court.
What is the main Defence against sexual assault?
It is important to consult an experienced sexual assault lawyer to discuss your case as each charge requires a defence tailored to an individual’s particular circumstances. In sexual assault cases, there are a number of defences available including, consent, honest but mistaken belief in consent, or mistaken belief of age. The accused may also claim that the sexual offence never transpired. A sexual offence trial is often a credibility battle between the accused and the complainant. As such, it is important for an experienced criminal lawyer to interview the defendant to determine defence strategies including a potential motive on behalf of the complaint to make a false complaint.
Defending a sexual assault charge involves a great deal of preparation which includes a review of all the evidence provided, multiple meetings with the accused and a thorough understanding of the criminal law surrounding sexual assault offences. A simple sexual offence charge may involve a number of applications, including a third party records application to get access to the complainants personal records such as counselling or children services records. A person facing such charges should consult and interview a number of sexual assault lawyers to ascertain one which best fits their case-specific needs.
What are my rights after an arrest?
If you have been arrested for committing a sexual assault, you retain all your legal and Charter rights, including the right to consult a lawyer, the right to bail hearing, and most importantly, the right to silence. The police must let you speak to your lawyer before taking your statement. It cannot be emphasised enough as to how important it is to exercise your right to silence. Often people make a grave mistake by providing a statement as they are under the impression that by doing so they might avoid criminal charges. A person has no obligation to provide a statement in a sexual assault allegation.
The next step after an arrest is to obtain bail. Unless the police deem the accused releasable, they will hold the individual or a bail hearing. The release will often include conditions preventing direct or indirect contact with the complainant along with other restrictions on one’s liberties.
If you ever find yourself in a situation where you are or might be arrested, give Kahlon law a call at (844) 978-8444, and rest assured that there will be a licensed professional looking out for your freedom and well-being.