The Offence: Sexual Assault Occurs When There Is Sexual Activity Without the Victim's Consent

The Offence: Sexual Assault Occurs When There Is Sexual Activity Without the Victim's Consent

SEXUAL ASSAULT

The offence: sexual assault occurs when there is sexual activity without the victim's consent or voluntary agreement. When this happens on a date...it has been called date rape.

Question: How does the law define a sexual assault?

Answer: This definition sets out the elements for the least severe level of sexual assault.

Sexual assault occurs when...

  • a person intentionally "applies force" to another person
  • this is done without the victim's consent or voluntary agreement
  • sexual activity is involved.
    Source: section 265 of the Criminal Code. See also s. 271, 272, 273.Thus it is a criminal offence to engage in sexual activity with another person who does not consent.

Question: What does "apply force" mean in a sexual assault situation?

Answer: Think of "force" as "physical contact". There does not have to be a violent demonstration of force. Touching certain body parts, for example, also fits the definition of "applying force".

Question: What does "sexual activity" mean?

Answer: In this story there is little doubt that sexual activity was involved. In other cases it is not so clear. The part of the body touched, the nature of the contact, the surrounding circumstances including what was said - these are all relevant factors in determining if there was a sexual aspect to the "physical contact".

The defence: in many cases the accused person argues that the victim consented, or agreed, to the sexual activity.

Question: Most victims will say they didn't consent, and most accused persons will say the victim did consent. Does the law help people interpret the meaning of "consent"?

Answer: The first source to consult for a definition of what is and isn't "consent" is the Criminal Code. For the purposes of this scenario, the following excerpts are relevant. Note that the Code uses the word "complainant" rather than "victim".

Consent means...the voluntary agreement of the complainant to engage in the sexual activity in question Source: section 273.1, subsection (1) of the Criminal Code

No consent is obtained...where

  • the complainant is incapable of consenting to the activity;
  • the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  • the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
    Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Criminal Code

Note: This is also referred to as the NO MEANS NO! law. The last clause states that if consent is given but then withdrawn during the activity, then this must be taken as a NO.

Question: One can imagine that there are situations where there is confusion about this issue and the accused person honestly thinks the other person is consenting. What then?

Answer: When this happens, the issue changes. The complainant says there was no consent. The accused's reply is that even if there was no consent, he/she had an "honest but mistaken" belief that there was consent. The courts have accepted, in the past, such an explanation as a valid defence. More recently the courts have been limiting the use of "honest belief" as a defence.

Question: When is "honest belief in consent" a legitimate defence?

Answer: This is clarified in the Criminal Code:

Where an accused alleges that he believed that the complainant consented to the conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
Source: section 265(4) of the Criminal Code

There must be sufficient evidence which, if believed, would constitute a defence. It is not enough for the accused to simply claim the he/she honestly believed there was consent.

Question: When is "honest belief in consent" not a valid defence?

Answer: This, too, is set out in the Criminal Code.

It is not a defence...that the accused believed that the complainant consented to the activity...where

  • (a)the accused's belief arose from the accused's
  • (i)self-induced intoxication, or
  • (ii) recklessness or wilful blindness; or
  • (b)the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
    Source: section 273.2 of the Criminal Code

Wilful blindness arises when the accused, who has become aware of the need for some inquiry, declines to make the inquiry because he or she does not wish to know the truth, preferring to remain ignorant.

Note: It is always necessary to consult current case law to find out how the law is evolving. This can be done by consulting a lawyer who practices in this area.

*****The actual wording of the law has been simplified in this handout.

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