Being charged with sexual assault is a very serious criminal offence. This type of crime includes crimes of a sexual nature including rape. Sexual assault is generally defined as the use or threatened use of force against another, either directly or indirectly, without their consent where the assault is that of a sexual nature.
To be charged with sexual assault one does not have to engage in the act of intercourse with the alleged victim. Furthermore, the accused does not need to attain sexual gratification from the assault with the victim. Any type of unwanted grouping, touching, or other gestures of a sexual nature could be considered sexual assault when consent is not present.
What If the Police Want to Speak to Me About an Alleged Sexual Assault?
Once a complaint has been filed with the police, they are required to investigate the claim of sexual assault. Initially the police may show up at your home or call and ask you to come into the station for questioning. You have the legal right to refuse to be interviewed by the police at your home, nor do you have to let them into your house.
It is highly recommended once the police inform you they need to question you about an alleged sexual assault you contact our sexual assault lawyer in Brampton at Manbir Sodhi Law immediately. You need to obtain sound legal advice prior to speaking to the police to avoid incriminating yourself.
How Old Does Someone Need to Be Able to Give Consent?
The legal age of consent in Canada is 16 years of age. Once they reach this age they are considered able to legally consent to sexual activity with another person of any age. The law does recognize consent for younger people as well.
If a person is aged 12 or 13 they may consent to sexual activity with another, as long as the other person is less than 2 years older than them. For a person aged 14 or 15, they may also consent to sexual activity, as long as the other person is less than 5 years older than them.
In addition for those under the age of 16 the other person cannot:
Be in a position of authority over them.
Be in a relationship of an exploitative nature.
Be in a relationship where dependency is present.
What Must the Crown Prove in an Alleged Sexual Assault Case?
The Crown must prove beyond a reasonable doubt that the alleged suspect applied force of a sexual natural against the victim without their consent.
Why Consent Is Vital to Sexual Assault Cases
Consent is one of the key defining factors in sexual assault cases. The police and Crown must determine whether or not consent was given and if the alleged victim was legally able to give consent. Aside from the aforementioned legal age to give consent, there are several cases where, even though the person is of legal age, they are not able to legally give consent as follows:
They are mentally incapable of giving consent.
They are under the influence of drugs and/or alcohol.
They are incapacitated.
They are coerced into giving consent by a person of authority, trust, or power.
They refuse to engage in the activity.
They initially give consent, but during the sexual act, rescind their consent.
It is important to remember with consent, it can be given and taken away at any time. Even if one had previously engaged in consensual sexual acts with another, it does not mean the other person will consent to future sexual acts.
Can a Person Claim a Mistaken Belief of Consent?
In certain cases, a person could use the claim of mistaken belief of consent as a viable defence to the charges. However, they must be able to establish the following:
The accused was not intoxicated or under the influence.
The accused was not reckless or engaged in willful blindness – ignoring the wishes of the victim.
The accused did not fail to take reasonable steps to verify consent was being giving.
What Are the Consequences of Being Convicted and Found Guilty?
If one is convicted and found guilty of sexual assault they could face varying periods of imprisonment. In addition, the person will be listed on the Sex Offenders Registry and have the offence recorded on their criminal record.
If you have been arrested and charged with sexual assault, you need to speak to our sexual assault lawyer at Manbir Sodhi Law for a FREE consultation to find out potential defences to the charges.