What is sexual assault?
Sexual assault is one of the most under-reported – and misunderstood – crimes in Canadian law.
The Criminal Code defines it as any touching of another person without their consent where the touching is of a sexual nature, or where the sexual integrity of the alleged victim is violated. Sexual assault includes unwanted kissing or groping over the clothes, consensual sex with someone too young to consent, sexual activity with someone who is asleep or unconscious, sexual activity with someone who is unwilling, as well as disciplining a child by striking them below the waist.
The term “rape” is no longer used in Canadian criminal statutes, as it was replaced years ago to acknowledge that sexual violence is not about sex but is a form of psychological and physical violence.
Sexual assault victims can be male or female, and so can the attacker. Spouses can also be charged with sexual assault upon the other spouse.
The test for sexual assault was established by a 1987 Supreme Court of Canada (SCC) decision where a man entered a neighbour’s home uninvited and groped a 15-year-old girl, squeezing her breasts. He was charged with sexual assault and found guilty at trial. The provincial court of appeal dismissed that charge and found him guilty instead of common assault. The SCC set aside that finding and restored the conviction of sexual assault.
The SCC judgment found the test to be applied in determining whether a sexual assault has happened include: “The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force.”
Sexual gratification not necessary
Sexual assault can be committed even if it is not performed for sexual pleasure or gratification. For example, if a parent is disciplining their child by squeezing his genitals or if someone touches a woman’s breasts as a “joke,” both can be considered sexual assault.
In 2006, the Ontario Youth Justice Court found a male guilty of sexual assault after he aimed a laser pointer at a female classmate’s breast in an auto shop class and then groped her.
According to the judgment, at the end of that same class, after she had washed and rinsed her hands at the washbasin, the male youth said that she had water on her breast and again he grabbed her there, though she “very clearly again demonstrated to him that she was not consenting to this unwanted grabbing.”
“The court finds that the Crown has proved beyond a reasonable doubt that when viewed objectively in light of all the circumstances, the conduct of the accused in grabbing the complainant’s breast on the two occasions constituted an assault of a sexual nature,” court documents state.
Most sex assaults go unreported
Sexual assault is among the crimes which are least likely to be reported to the police. The 1999 General Social Survey on Victimization found 78% of sexual assaults were not reported to the authorities. In addition, incidents of sexual assault are not always reported immediately after the offence has taken place, with many coming to light years later.
There are many reasons for that. The report says one-third of victims who did not report felt that the police could not do anything about it, and approximately one fifth believed the police would not help them. Another fifth did not report the incident because they feared revenge by the offender and 14% sought to avoid publicity.
Sex assault in the #MeToo Era
According to a 2018 report from Statistics Canada, there were more police-reported sexual assaults in 2017 than in any year since 1998. Those incidents in Canada peaked in October, coinciding with the rise of the #MeToo social media movement. The number of victims coming forward in October and November of 2017 was higher than any other calendar month since comparable data became available in 2009.
The age and sex profiles of victims were similar before and after #MeToo, with young women and girls under 25 years old continuing to have the highest rates of police-reported sexual assault, accounting for over half of victims.
Sexual assault reports involving an accused with whom the victim had a business relationship (a co-worker, service provider, or patron or client) increased after #MeToo, though these incidents represented a small proportion of sexual assaults overall (4%).
Understanding what constitutes consent in a sexual context is a question many people still struggle with. According to the Canadian Women’s Foundation, 96 per cent of Canadians believe all sexual activity should be consensual, but only one in three people understand what it means to give consent.
Some sexual assault allegations are unfounded
As the number of alleged sexual assaults rose in 2017 so did the number of incidents deemed to be unfounded, according to a report from Statistics Canada. It states that one in seven sexual assaults reported to police in 2017 was classified as unfounded compared with one in five sexual assaults in 2016.
The report states there were just under 3,900 incidents of sexual assault reported to police in 2017 that were deemed to be unfounded … at the same time, sexual assault represented 6 per cent of all founded incidents of violent crime.”
The report notes, “The increase in the number of incidents of sexual assault reported to police in 2017 may be partially explained by increased societal awareness about various forms of sexual misconduct, including sexual assault. During 2017, there was significant attention in news reports and social media such as #metoo and Time’s Up that raised awareness of the prevalence of sexual assault and sexual harassment and demanded accountability. This public attention may have resulted in more victims deciding to report their victimization to police.”
While wholly false accusations of sexual assault are rare, it does happen and can ultimately ruin a person’s reputation and livelihood. National policing data compiled by The Globe and Mail in 2017 revealed that one of every five sexual-assault allegations in Canada is dismissed as baseless and, therefore, unfounded. What’s more common in these types of cases is a dispute over the facts of what happened between the complainant and the accused. An experienced criminal lawyer can make judges aware of these differences, strengthening the defendant’s case.
Varying degrees of sexual assault
There are three levels of sexual assault charges in our Criminal Code: Level 1 sexual assault is one that is committed when the sexual integrity of the victim is violated. Level 2 involves “sexual assault with a weapon, threats to a third party or causing bodily harm.” Level 3 is aggravated sexual assault, where the person committing the sexual assault wounds, maims, disfigures or endangers the life of the complainant.
In Level 1-type cases involving minor sexual touching, there’s a possibility of having charges dropped or reduced, but the chances of Level 2 and 3 charges being dropped are much more difficult, though your chances will increase by having an experienced criminal lawyer by your side.
Certain types of people are more vulnerable to becoming victims of sexual assault. According to a Statistic Canada report, gender is the most important factor, as females are far more likely to be victims of sexual offences than any other type of violent offence. For example, in 2002 women represented approximately half of all victims of violent offences, yet they accounted for 85 per cent of victims of sexual offences.
Statistics Canada's 1993 Violence Against Women Survey (which did not include incidents prior to 16 years of age) found that over half of all women who had reported incidents of sexual assault, reported more than one case of victimization.
Moreover, women are more likely to be victims of the more serious levels of sexual assault. According to the General Social Survey report on Sex Offenders, “Relative to males, females were more apt to be victims of sexual assault Levels 2 and 3 and less apt to be victims of ‘other’ sexual assaults.”
Adult victims were also more likely to be victims of Levels 2 and 3 sexual offences, compared to Level 1 assaults which were most often perpetrated against children. Although consistently fewer victims were males, they make up a relatively high percentage of cases of young children who are victims of sexual offences.
According to Canadianwomen.org, “sexual assault is the only violent crime in Canada that is not declining. Its impact goes far beyond survivors; dealing with the aftermath of sexual assault costs Canadians billions of dollars every year.”
The accused is generally known to the victim
In the vast majority of crimes of sexual assault, the accused is known to the victim. A study found that in 80 per cent of sexual offences in 2002, 41 per cent were assaulted by an acquaintance, 28 per cent by a family member, 10 per cent by a friend, and the remaining 20 per cent were victimized by a stranger. The reticence of victims to speak to the police or seek assistance may be caused by their relationship with the accused.
Allegations of sexual abuse ruin lives
The accusation of sexual assault can be crushing as the stigma attached to the crime can ruin careers and break apart families, even if the person is eventually found not guilty. A conviction for sexual assault can result in a significant jail sentence, and the person will be placed on sex offender databases and perhaps be subject to international travel restrictions
If you get a call from the police informing you of such a charge, don’t panic and don’t make a statement, but call me for a free consultation. The evidence and procedural rules for sexual assault cases are very complicated, but I will tirelessly defend you during your trial by challenging Crown witnesses and other evidence, presenting your case in a way that places you in the best light possible.