In the wake of the #MeToo and Time’s Up movements, more people are wondering what exactly sexual assault is. What is considered sexual assault has been altered and updated as times changed, which only adds to the confusion surrounding this term. Different countries might have different definitions of it, but our sexual assault lawyers share what you need to know about sexual assault in Canada.
Contrary to popular belief, and media portrayal, pressing charges isn’t solely up to the victim. When it comes to sexual assault cases, it’s the not victim who presses charges, or who even decides whether or not charges are pursued. It’s up to the Provincial Crown Prosecutor, in other words, the government to decide this.
Canada’s Criminal Code defines sexual assault as an assault of a sexual nature that violates the sexual integrity of the victim. In Canada, the Supreme Court has determined that sexual assault doesn’t depend on any specific parts of the body, and even threatening assault of a sexual nature is a crime.
Consent is a key element in sexual assault. There currently aren’t any clear laws’ outlining what exactly consent is. Factoring issues such as drugs and alcohol only further complicate consent. The question of consent is ultimately determined by the circumstances. In Canada, there are no magical words or actions that automatically determine consent, although getting a “yes” from a sober partner is always best.
Sentencing for sexual assault depends on a number of factors. The severity of the crime, the accused prop criminal history, and the actual crime committed will all influence the outcome. The Canadian Criminal Code does outline possible sentences for sexual assault charges as followed:
271. (1) Every one who commits a sexual assault is guilty of
(a) an indictable offense and is liable to imprisonment for a term not exceeding ten years, or
(b) an offense punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Aggravated sexual assault, where wounds were inflicted, carries heavier penalties.
In the past, many victims were unwilling to come forward because their personal lives, and sexual history was often brought up repeatedly in an attempt to discredit and intimidate. Laws have since changed, forbidding testimony about prior sexual activities except under highly specific circumstances. This is often referred to as the “rape shield” law.