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What is Sexual Assault?

Sexual Assault is defined as an assault of a sexual nature that violates the sexual integrity of the victim. The Supreme Court of Canada held that the act of sexual assault does not depend solely on contact with any specific part of the human anatomy but rather the act of a sexual nature that violates the sexual integrity of the victim. When investigating a sexual assault, there are certain relevant factors to consider:

  • The part of the body touched
  • The nature of the contact
  • The situation in which the contact occurred
  • The words and gestures accompanying the act
  • All other circumstances surrounding the act
  • Any threats that may or may not be accompanied by force

The victim of the sexual assault can be man or woman and the attacker can be of the same sex as the victim. A spouse may be charged with sexual assault upon the other spouse.

Punishment

Everyone who commits a sexual assault is guilty of

  • An indictable offence and is liable to imprisonment for a term not exceeding ten years or
  • An offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months

Sexual Assault With a Weapon/Threats to a Third Party/Causing Bodily Harm Section 272

Every person commits an offence who, in committing a sexual assault

  • Carries, uses or threatens to use a weapon or an imitation of a weapon
  • Threatens to cause bodily harm to a person other than the complainant
  • Causes bodily harm to the complainant, or
  • Is a party to the offence with any other person

Punishment

Every person who commits an offence under subsection (1) is

  • Guilty of an indictable offence and liable
  • Where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years and
  • in any other case, to imprisonment for a term not exceeding fourteen years

Aggravated Sexual Assault Section 273

Every one commits an aggravated sexual assault who

  • In committing a sexual assault
  • Wounds, maims, disfigures or endangers the life of the complainant

Punishment

Every person who

  • Commits an aggravated sexual assault
  • Is guilty of an indictable offence and liable
  • Where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years and
  • In any other case, to imprisonment for life

Consent

The principles of consent that apply to assault also apply to sexual assault. The victim of sexual touching must freely consent to the act, and must understand the nature of the act being consented to. The courts have applied the definition of consent to mean that a person cannot consent to having serious bodily harm done to himself or herself (R. v. Jobidon (1991, S.C.C.)).

Consent means the voluntary agreement of the complainant to engage in the sexual activity in question.

No consent is obtained when:

  • The agreement is expressed by the words or conduct of another person other than the victim (complainant)
  • The complainant is incapable of consenting to the activity
  • The accused (by abusing a position of trust, power or authority) induces the complainant to engage in the act
  • The complainant expresses by words or conduct a lack of agreement to engage in the act or
  • The complainant, having consented to engage in the sexual activity, expresses (by words or conduct) a lack of agreement to continue to engage in the activity

Legal Age

A person who is under the age of sixteen cannot consent to sexual activity with another person who is five or more years older than them. A person who is under the age of fourteen years cannot consent to sexual activity with another person who is two or more years older than them. In any case, a person in authority cannot use consent as a defence of having sexual activity with a person under the age of sixteen.