What is Sexual Assault?

Sexual assault is a serious crime in Canada.

For an accused to be convicted of sexual assault the Crown must establish several things: that an assault occurred, that the assault was of a sexual nature, and that no consent was given.  They must also establish that the accused intended to commit the acts and was wilfully or recklessly indifferent to the lack of consent.

All of these factors can be very subtle and subject to a long list of previous court findings.

Assault does not necessarily imply physical injury.  Simple touching can suffice in some situations.

The "sexual" aspect of the assault is subject to interpretation and may require a careful analysis of the situation.  It does not depend solely on contact with any specific part of the human anatomy but rather it is any act that "violates the sexual integrity of the victim". 

The question of what constitutes consent is particularly difficult.  There is no "formula" for giving consent.  Many kinds of utterances or actions can be considered consent, depending on the circumstances.  Certainly consent cannot be coerced by force or fraud. 

There are situations where a victim by definition cannot give consent:

• the victim is incapacitated by drugs or alcohol, sleeping, or unconscious
  
• the act will foreseeably result in serious bodily injury
• the victim is younger than 16 and the accused is not close in age
• the accused is in a position of authority over the victim

A person also may revoke (by words or conduct) consent at any time during the act they previously consented to. Again there is no specific formula for expressing this revocation.

Complicating all of the above are judicial rules for collecting evidence and testimony in sexual assault cases.  These are in place to prevent re-victimization of the person making the complaint.

People on both sides of a sexual assault case clearly need to have lawyers representing them that are both knowledgeable and experienced in the subject area.