Sexual Assault & Law

When it comes to sex in your relationship, consent is really important. You must understand that consent is very significant for healthy sexual relations and both must have consent to have sex.

Consent Is...

Consent is defined as the voluntary agreement, by words or conduct, to engage in sexual activity. With regards to adult sexual assault, lack of consent is crucial in determining whether a sexual assault has occurred. The law also states that people have the right to change their minds at any point in a sexual encounter and to withdraw consent by words or conduct. Here it’s important to know that consent cannot be provided under the following conditions:

  • Where the survivor used words or conduct to indicate “no”;
  • Where the survivor was incapable of consenting;
  • Where someone other than the survivor gave consent for her/him;
  • Where the survivor changed her mind;
  • Where there was an abuse of trust or authority.
  • The following defences cannot be used by a perpetrator:
  • Where someone was too intoxicated to realize she/he had not consented;
  • Where someone believed that she/he was consenting (a person must take reasonable steps to find out if consent has been given). No assumptions.

Consent As Per Canadian Law

A common issue in sexual assault cases is whether or not the sexual activity was consensual.  Consent is the voluntary agreement of the accuser to have engaged in the sexual activity in question.  According to s. 273.1(1) of the Criminal Code, consent for sexual assault purposes is defined as the following:

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

273.1(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272, and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where the agreement is expressed by the words or conduct of a person other than the complainant;

    (a) The complainant is incapable of consenting to the activity;
  1. (b) The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  2. (c) The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  3. (d) The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where:
(a) The accused’s belief in consent arose from the accused’s:

  1. (1) Self-induced intoxication, or
  2. (2) Recklessness or wilful blindness; or

(b) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

When it comes to sex in your relationship, consent is really important. You must understand that consent is very significant for healthy sexual relations and both must have consent to have sex.

Sexual Assault Laws in Canada

Laws regarding sexual assault of adults are covered under the Criminal Code of Canada (R.S., c. C-34 [1993]). The following is a condensed version of these laws.

Level One: Simple Sexual Assault

  • Any form of sexual activity forced on someone else (ex: kissing, touching, oral sex, vaginal/anal intercourse, etc.) without consent and without causing bodily harm.

MAXIMUM 10-YEAR PRISON TERM

Level Two: Sexual Assault with a weapon / threats to a third party / causing bodily harm

Occurs when a person is sexually assaulted by someone who:

  • Uses a weapon or threatens to use a weapon (imitation or real);
  • Threatens to cause harm to a third person (friend, family member or children);
  • Causes bodily harm to a third party, or;
  • Commits the assault with any other person – multiple assailants

MAXIMUM 14-YEAR PRISON TERM

Level Three: Aggravated Sexual Assault

  • Occurs when a person brutally beats, wounds, maims, disfigures or endangers the life of someone during an assault.

MAXIMUM LIFE SENTENCE TO PRISON

 

Other Aspects of Law in Canda

  • There is no statute of limitations for prosecution of sexual assault. This means that a survivor is legally entitled to press charges of sexual assault at any point in time after it occurs, no matter how long ago it happened.
  • The three levels of sexual assault focus on the severity of the assault. The degree of personal injury to the survivor determines which level applies. This parallels physical assault charges.
  • The term “sexual assault” is broader in its application than “rape”; as such, the law now acknowledges that other forms of unwanted sexual activity are as damaging to survivors as forced sexual intercourse. In addition, sexual assault laws are no longer gender-biased, and recognize that people of all genders can be victims (and perpetrators), and that they should all be provided with equal treatment by the law.
  • Under the law, it is a crime for one partner to force the other into sexual activity. This means that while two people may have had consensual sex previously, this does not give the right for a partner to assume that both parties automatically consent to further/ongoing sexual activity.
  • The law does not require corroboration for charges to be made, although the case is stronger if there is a witness or some other supporting evidence.

[Ref: AVP]