What you need to know if you are charged with sexual assault

What you need to know if you are charged with sexual assault

By Vincent Semenuk

Those facing a charge of sexual assault may feel their life has been turned upside down. If found guilty, you will be facing incarceration from six months to 25 years, depending on the charge and the circumstances. Then there is the criminal record, social stigma, and registration in the National Sex Offender Registry. Your ability to travel internationally may also be hindered.

Considering these outcomes, it should be easily evident why you should call an experienced criminal defence lawyer at the first opportunity. Every case is different, but after we hear a detailed account about what happened, we can start to build the best defence against your sexual assault charge.

Some complainants are not truthful

False accusations of sexual assault do occur, damaging a person’s reputation and livelihood in the months and years leading up a trial where a non-guilty verdict may ultimately be reached. National 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.”

The common element in most of these cases is a disagreement over what happened. There are two sides to every story, and you should be given the same benefit of the doubt as the complainant.

Sexual assault and consent

According to information from the Calgary Police Service, sexual assault occurs when a person is “kissed, fondled, groped or forced to engage in sexual activity” without their permission or consent. It adds that sexual assault is not defined by contact with any specific body part or whether or not the people involved know each other.

Consent means a voluntary agreement to participate in sexual activity. The age of consent in Canada is 16 years old, meaning that a person under that age cannot legally give consent to have sex unless the other person is within five years of their age. A person who is under the age of 14 cannot consent to sexual activity with another person who is two or more years older than them.

Consent does not have to be verbal. Instead, it must be clear and expressed through the words, actions or body language. Consent exists if your partner allows you to make contact, without being forced or coerced in any manner.

Sexual assault defence

The Crown considers sexual assault one of the worst types of offences. Your chances of beating a sexual assault charge as a self-represented litigant are slim. That is because the evidence and procedural rules are complicated. It is not enough to say you didn’t do it – you need a legal expert who has a thorough understanding of the law to present your defence.
The court will consider several factors to decide if an assault was of a sexual nature. Those include the body part that was touched, how the touching occurred, any words spoken and if there were threats made during the assault.

A primary defence when it comes to sexual assault is innocence. Perhaps you believed the complainant had willingly consented to sexual relations. Sometimes when people have a sexual encounter, the next day they will feel bad and call it rape.

Keep in mind it is not a defence to say, “She didn’t say no.” Consent requires more than passive acceptance.

What happens at trial

Many sexual assault cases come down to he said/she said testimony and are decided on the credibility of the parties. An experienced defence lawyer will be able to poke holes in the complainant’s testimony through cross-examination, especially if their account of what happened varies from what they told the police at the time of the incident.

There are many rules defence lawyers must abide by when questioning sexual assault complainants in court. For example, they cannot invoke rape myths to discredit a complainant’s character. Instead, they have to rely solely on the evidence and testimony given by both sides as well as witnesses and experts.

Do not talk to police about the charges

When charged with sexual assault, the first reaction of many people is to tell their side of the story to officers, hoping that will make the charges go away. That is the wrong approach. What you say may be held against you later at trial. The best tactic is to tell the police that you want to speak to a lawyer. If you are under arrest or detention, the police have to allow you to make a phone call to a lawyer or a duty counsel to receive legal advice. If officers are persistent and try to question you, politely tell them you are exercising your right to remain silent, as allowed under s. 7 of the Canadian Charter of Rights and Freedoms and under Canadian common law.

Choose experienced legal counsel

Dealing with the police and the judicial system with sexual assault charges requires an experienced legal advocate. If police have called you for an interview or for questioning, don’t give a statement. Contact Greg Dunn & Associates and get one of our team members working on your behalf. If you have any questions or would like to speak to a lawyer, give us a call at 403-233-0443.

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Sex Assault