Sexual Assault Charges under the Criminal Code of Canada s.271

When an individual is charged with sexual assault below part 271 of the Legal Code, a number of frequent questions come up. We attempt to reply these steadily requested right here:

Query: “What’s ‘Sexual Assault’ below part 271 of the Legal Code?”

Sexual assault is any sexual contact with one other individual with out that individual’s consent.

You can be responsible of sexual assault if the Crown prosecutor proves the next past an affordable doubt.

1. You dedicated an assault of a sexual nature

Part 265(1) of the Legal Code identifies three sorts of assault. Sexual assault signifies that you dedicated one in all these assaults and that the assault had a sexual factor.

a) With out the consent of one other individual, you apply drive to that individual, straight or not directly (e.g., you punch an individual or throw a rock at them).

Most sexual assaults fall are this sort. In these instances, the Crown prosecutor should show that you just touched an individual in sexual circumstances with out their consent. The contact could also be direct or oblique. Examples of oblique contact would possibly embody utilizing an object to the touch the sufferer or ejaculating within the neighborhood of the sufferer.

b) You try or threaten, by act, or gesture, to use drive to a different individual and that individual has affordable grounds to consider that you’ll observe via.

Chances are you’ll be criminally answerable for this sort of assault if:

i. You make a reputable try and commit a sexual assault however don’t full your goal. For instance, you move out drunk earlier than you contact the alleged sufferer.

ii. You threaten by greater than mere phrases to sexually contact one other individual.

iii. You threaten by greater than mere phrases to use non-sexual drive to a different individual if they don’t interact in sexual exercise with you.

c) Whereas brazenly carrying a weapon, you accost, impede, or beg one other individual.

Such a assault is sort of all the time sexual assault with a weapon, which is a separate legal offence.

2. You acted deliberately.

You need to intend to finish the act. This intention doesn’t require a sexual motivation. For instance, as a joke, you touched an individual’s genitals with out their consent. Your motivation for touching can be irrelevant. It might not matter that you just didn’t contact the individual for sexual gratification. Intending to the touch the individual would suffice.

Then again, an unintended contact wouldn’t be sufficient. As an illustration, whereas falling, you tried to seize something for stability and by accident touched an individual’s breasts. Right here, the non-consensual touching was of a sexual nature. However since you didn’t intend for it to occur, you didn’t commit a sexual assault.

3. You have been conscious of, wilfully blind to, or reckless to the individual’s lack of consent to the sexual act.                                                                                      

Courts decide consent by trying to the alleged sufferer’s frame of mind. As soon as the Crown prosecutor proves past an affordable doubt that the alleged sufferer didn’t consent, the query then turns to your frame of mind.

Three states of thoughts would suffice:

• You knew the alleged sufferer was not consenting.
• You have been wilfully blind to the shortage of consent. In different phrases, you knew that you just wanted to inquire additional however selected to not since you didn’t wish to be taught the reality. For instance, you had intercourse with an alleged sufferer who seemed to be very fearful of you. You didn’t ask any questions to find out whether or not they have been consenting since you didn’t need them to say no.
• You have been reckless, which implies you had cause to consider the alleged sufferer won’t have consented however didn’t take any steps to cut back the chance of a sexual assault. As an illustration, you had intercourse with somebody and did nothing to acquire consent.

If none of those three states would apply in your case, the defence of sincere however mistaken perception is likely to be applicable. This defence is relevant when the alleged sufferer didn’t consent, however you believed they did and took affordable steps within the circumstances. Living proof, you had intercourse with an individual whose physique language steered they have been enthusiastically consenting when, in actual fact, they weren’t. You could possibly depend on your sincere mistake as a defence to a sexual assault allegation.