Sexual assault consists of any sexual contact that takes place without the consent of the people involved. It ranges from nonconsensual touching to rape and can take place anywhere. It is illegal to force sexual contact on another person regardless if it is in a private home, or a public place. All sexual acts that are not consensual can be considered sexual assault. Some of the criteria that would come up in court:
- Were the sexual actions or words rebutted?
- Was any force or threat of force used during the alleged interchange?
- Were any drugs or alcohol used in an attempt to force the alleged victim into sex?
- Was the alleged victim “persuaded” to have sex due to a position of authority forcing the issue?
Although sexual assault is sometimes committed by an unknown participant, it is most often enacted by someone the victim knows, such as a family member, associate, or someone who is in a position of authority, such as an employer.
In 1982 the Criminal Code was amended; previously it only included the offence of rape, which required proof that a man forced sexual intercourse with a woman other than his wife without consent. At that time punishment could be life imprisonment, yet few cases ended with that result.
Even after the Criminal Code was amended to include sexual assault and misconduct, the majority of these cases were not in favour of the victim.
According to statistics gathered by Statistics Canada of sexual assault cases between 2009 to 2014:
- Less than half (43%) of sexual assault incidents resulted in a charge.
- Nearly half (49%) moved forward to court; a little over half (55%) led to a conviction; barely half (56%) were sentenced.
- Only one in five (21%) of reported sexual assault cases that were reported by police led to a criminal conviction; only 7% resulted in a sentence.
- Three in five (60%) of the sexual assault charges that were recommended by police were later changed to a different offence once in court – such as physical assault.
- When compared with physical assaults, sexual assaults were more apt to drop out of the system somewhere in the time between police arrest and the court.
In order to be found guilty of sexual assault, three things need to be proven in court:
- Occurrence: Proof that the assault actually took place.
- Identity: Proof that the person who is charged is the one who committed the assault.
- Lack of Consent: Proof that there was no consent by the victim.
What happens if the accused is found guilty?
More often than not, if the accused is found guilty sentencing will often be adjourned to a later date. The Department of Justice Canada suggests that a probation officer may be requested to write up a pre-sentence report that includes all of the details, history, and background information of the accused. This is done to help the judge determine a fit and appropriate sentence.
If there is a trial or a sentencing hearing, the victim will likely be asked to testify to understand the severity of the sexual assault. Were there physical injuries? Was the victim able to perform normal daily activities after the attack? Is there psychological damage due to the assault?
A previous criminal record will also be considered, especially if there are similar sexual offences or prior convictions for sexual assault. A repeat offender will receive a more significant sentence than a first-time offender.
Punishments that can be imposed after a guilty plea or conviction:
Although this chart is a guideline from which a judge can decide, it is a range of options that would be considered depending on the specific circumstances.
|Aggravated sexual assault||life in prison – max 25 years|
|Sexual assault with a weapon, threats to a third party or bodily harm||14 years in prison|
|Sexual assault tried as an indictable offence||10 years in prison|
|Sexual assault tried as a summary conviction offence*||6 months in jail and a $2,000 fine|
When the maximum sentence is 14 years or more, certain sentencing options are no longer available to the judge and the minimum sentence a judge can give is to order the convicted to report to a probation officer for a specific period of time, which is called a suspended sentence. If the person fails to comply with the probation order, this is a new criminal offence. If the maximum sentence is less than 14 years, a number of additional sentencing options are open to a judge, including a potential absolute discharge.
Clearly, there are many variables that go into a conviction and determination of punishment in all sexual assault cases.
Jaswal & Krueger Will Find the Best Defence
Our attorneys at Jaswal & Krueger are highly experienced in defending those who have been accused of all types of assault, including sexual assault. We use an original approach that includes digging deeper into all perspectives and angles of the case.
Start by scheduling a complimentary consultation so we can gather the facts and get to the essence of a strong defence. Call us today at 604-585-8898 or contact us here. We are here for you.