Sexual Assault Criminal Process, Canada

Pressing charges, Consent, Rape Shield, Evidence and Sentencing

One of the most difficult questions facing victims is whether or not they choose to report the crime to the police. Often this is referred to as "pressing charges" against the accused. In reality, it is not the accused who presses charges, nor is it their decision. This is a decision of the Provincial Crown Prosecutor. The victim is merely a witness to the crime itself.



If charges are pressed, you may be forced to take the stand and testify under oath or affirmation. Generally, prosecutors are reluctant to force victims to testify against their will, however they do have the power to force your testimony and will do so if they feel it is in the public interest.



Definition of Sexual Assault in Canada's Criminal Code



Canada's Criminal Code has no specific "rape" provision. Instead, it defines assault and provides for a specific punishment for "sexual assault". In defining "assault", the Code includes physical contact and threats. The provision reads:



265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.



Interestingly, the definition 'appears' to include threats of sexual assault as a sexual assault itself. This suggests a person could be convicted of sexual assault without physically touching the victim if they make a threat of sexual assault (for instance, "I'm going to rape you"). One should check with their local Crown Attorney for information on how the Courts have interpreted this and whether such a Prosecution is possible.



Please note there are other specific sexual offences codified in the Criminal Code, such as sexual exploitation, invitation for sexual touching, child pornography, voyeurism, etc. An individual charged with sexual assault could be convicted of additional sexual crimes as well depending on the circumstances.



Consent



Consent is the critical issue in many sexual assault crimes. This is a question of fact and law that will be determined by the trier of fact in court. There are few set rules in terms of defining what constitutes consent and what doesn't. The code does specify some instances which do not constitute consent:



266 (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.



Consent gets even more complicated when alcohol and drugs are involved in that it becomes a question of whether the victim had the capacity to consent. Again, the court will look at the totality of the evidence and decide.



Another issue is whether the accused reasonably believed that the victim consented to the sexual act. This is dealt with in the Criminal Code follows by instructing the trier of fact to consider the "reasonable grounds for the accused's belief" (see s. 266 (4)). Obviously, again we have a subjective question with very little criteria to go by.



The question of consent is thus determined by looking at the totality of the circumstances. There are no magic words or actions that automatically determine the issue of consent. In the end, it's going to be decided based on the testimony of the victim and (usually) the testimony of the accused and who is the more credible/believable witness.



Sentencing



The sentencing of the accused, if convicted, depends on the severity of circumstances and the presence and details of the accused's prior criminal history. The Crown Prosecutor decides whether to proceed summarily or by indictable. Summary conviction is a less serious route and will carry a lesser punishment than an indictable. The Code specifies the possible sentences for sexual assault as follows:



271. (1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

These are the maximums for both a summary and indictable prosecution. Keep in mind an assailant can receive much less of a sentences that the prescribed maximums. See our sentencing table for information on real sentences given to assailant's based on particular prior records and circumstances.



Please note, in circumstances of aggravated sexual assault a stricter penalty is possible.



Aggravated Sexual Assault



The Criminal Code also allows for increased penalties for sexual assault where the accused "wounds, maims, disfigures or endangers the life of the complainant", see:



273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.