What to do if you have been charged with sexual assault

What to do if you have been charged with sexual assault

By Matthew Deshaye

Few crimes carry the stigma of sexual assault. Convictions relating to sexual offences will often result in significant jail sentences and the requirement to submit DNA samples to the state and registry into SOIRA (Sex Offender Information Registration Act).

A sexual assault charge can be laid with relatively little evidence, based solely on the allegations of one person. Your freedom and reputation are on the line, which is why you need experienced legal counsel.

What is sexual assault?

The Supreme Court of Canada had determined that sexual assault does not depend solely on contact with any specific part of the human anatomy but rather the act of a sexual nature that violates the sexual integrity of the victim. That can include unwanted kissing, fondling, touching, and penetration (vaginal, anal or oral). It can also include situations where consent was given under false pretenses or threats. The nature of conduct which can result in a charge of sexual assault is extremely broad and can include anything from brief over the clothes contact to penetrative and violent sexual assaults.

When investigating a sexual assault, there are certain relevant factors to consider, according to the Ontario Court of Appeal in R. v. Higginbottom (2001), 156 C.C.C. (3d) 178 these include:

  • the part of the body touched;
  • the nature of the contact;
  • the situation in which the contact occurred;
  • the words and gestures accompanying the act; and
  • all other circumstances surrounding the act.

Sexual assault complainants and assailants can be male or female, or the same sex. A spouse or common-law partner can be charged with sexual assault for actions involving the other spouse.
Even if both parties are willing participants, it can still be considered sexual assault if one is below the age of consent or cannot make a clear and informed decision. When it comes to consent, sexual activity with an individual under the age of 16 is strictly prohibited, except for close-in-age exceptions.

Sexual assault can also occur between people who are in a relationship or even between relatives. This type of assault is referred to as intimate partner violence and can involve physical, emotional, psychological, financial or sexual abuse that occurs within an intimate relationship.

Retain a lawyer immediately

An experienced criminal lawyer will ensure that the judicial system treats you fairly. The team at Dunn & Associates has defended many other people in your situation. We know how the police assemble evidence and the approach the Crown attorney will take.

If you are charged, or even just being investigated for a sexual assault, speak to a criminal lawyer before you speak to police.

If being investigated for a sexual assault it is a common misconception that providing a statement to police and explaining your side of the story may help to clear your name or to prevent charges from being laid. In almost all circumstances, if police have enough evidence to proceed with a charge of a sexual nature, a statement from you will not prevent the charge(s) from being laid. Rather, this statement may be used to incriminate you at trial or may be used to undermine their later testimony at trial.

There is no right in Canadian law to have a lawyer present during a police interrogation. Rather, accused persons are entitled to receive legal advice prior to being questioned by police. This advice will most often be received over the phone after the accused person has already been arrested.

It is important to consult with a criminal defence lawyer at the earliest opportunity. Our lawyers can provide you with valuable information on the types of questions which will be asked, the interrogation strategies of the police, and the appropriate responses to give in relation to the questions asked. Never speak to police without having received legal advice.

If you are charged with a sexual offence there is a high probability that a trial will be required. Canadian law has many protections built into it in order to shield complainants from unwarranted attacks on their personal integrity. These laws prevent certain lines of questioning and are meant to protect complainant’s from the “myths” and stereotypes surrounding victims of sexual assault. You will require a seasoned and knowledgeable legal team to properly navigate these areas of the law.

Defences countering sex assault charges

As with any charge, the best defence in your case will depend on the evidence police have gathered. Many sexual assault cases are based on he said/she said evidence, so we must establish your credibility before the court. The most common defences are:

I am falsely accused: There are various reasons why complainants may falsely accuse someone of sexual assault. They include jealousy, revenge or to gain advantage in a child custody dispute.

Consent: There are two types of consent in law. Actual consent and a mistaken belief in consent. The defence of actual consent arises where there is no dispute that sexual activity occurred, but the accused person disagrees with the version of events given by the complainant. Mistaken belief in consent occurs where the complainant did not consent to the sexual activity but the accused person reasonably believed that there was consent. Consent must be clearly communicated either through words; actions; or body language. Silence alone will never amount to consent. Each type of consent involves unique application of the law and unique strategies of defence.

There is a lack of evidence of guilt: The burden of proof in any criminal case lies on the Crown prosecution. In order to be found guilty the Crown must prove beyond a reasonable doubt all of the essential elements of the offence for which someone is charged. Criminal lawyers can examine the Crown’s evidence against you and look for inconsistencies and gaps in the evidence. The complainant’s account of what happened may have changed from the time the charge was laid to what was said in court or may be contradicted by other evidence. In cross-examination, a defence lawyer can bring that to the court’s attention.

Policing data published by The Globe and Mail in 2017 show that one of every five sexual assault allegations in Canada is dismissed as baseless. South of the border, an FBI study reports that “eight per cent of forcible rape complaints in 1996 were ‘unfounded’ while the unfounded average for all major crimes was two per cent.”

Many factors determine the penalty

There are three levels of sexual assault in the Criminal Code with the penalty reflecting the severity of the crime:

Sexual assault: Section 271 states that the maximum sentence is 10 years in prison if the charge is treated as an indictable offence. If the complainant is under 16 the maximum sentence rises to 14 years jail.

Sexual Assault with a weapon: Section 272 states that anyone who uses a weapon or an imitation of a weapon when committing a sexual assault can be sentenced to a maximum of 14 years for indictable offences. The mandatory minimum sentence is four years in prison.

Aggravated Sexual Assault: Section 273 allows the charge to be laid against anyone who wounds, maims, disfigures or endangers the life of the victim during a sexual assault. The maximum penalty is life in prison. If a firearm was used during the attack there is a maximum minimum penalty of four years in prison.
Most sexual assaults are not reported

According to the Department of Justice (DoJ), the majority (83 per cent) of sexual assaults were not reported to police. The most frequently reported reasons for not reporting child sexual abuse and/or adult sexual abuse were:

  • the participants thought that they would not be believed;
  • they felt ashamed or embarrassed;
  • they did not know they could report the abuse; and
  • they had no family support.

Fewer than half of sexual assault cases in adult criminal court result in a guilty verdict, the DoJ states.

Contact us for assistance

To be found guilty of sexual assault, the prosecution must be able to show the sexual assault occurred, that you committed the act and that the complainant did not give consent. If the alleged assault was low-level (unwanted touching, for example) we may be able to get the court to have you released on a peace bond, provided you have a clean record.

We have defended many people on this charge. Contact us for a free consultation and get us working on your behalf.