Sexual Assault

1. Determining Whether an Assault is “Sexual in Nature.”

Determining if the assault, alleged to have occurred, was of a sexual nature is usually done by examining the alleged conduct and circumstances. The Court or Judge will apply a common-sense approach, and consider:

• Which part of the body was being touched
• What part of the body the accused used to touch
• The nature of the contact
• The situation in which it occurred
• The words and gestures accompanying the act
• All other circumstances surrounding the conduct including the motives of the accused.

2. Complainant vs. Victim

Police and Crown Attorney’s often call people that claim they have sexually assaulted “victims.” The term victim presumes the accused did something to make the person a victim – in short, it presumes guilt. Lawyers will often term accusers “complainants” because the term preserves the presumption of innocence on behalf of the accused.

3. Definition of Sexual Assault

The Criminal Code of Canada defines sexual assault. The following is not an extensive or comprehensive definition of sexual assault. This definition is just illustrative of the most common allegations with respect to Toronto sexual assault charges.

Sexual assault can be defined as a contact of a “sexual nature” applied intentionally and occurring without the consent of another person or a threat by act or gesture to apply the force of a sexual nature to another person. A sexual assault is alleged to have occurred where the complainant submits or does not resist non-consensual sexual activity because of the application of force to the complainant or to a person other than the complainant. Sexual assault may also be charged as sexual assault with a weapon, sexual assault causing bodily harm, and aggravated sexual assault. The Courts will also in certain circumstances find a sexual assault where fraud or the exercise of authority are used to obtain sex.

Sexual Assault Defences

The four most common defences advanced in sexual assault trials are:

1. Identity
2. The sex did not happen
3. There was consent
4. There was an honest but mistaken belief in consent on behalf of the accused.