When planning defence against any type of charge in Alberta, the first thing that crosses every defendant’s mind is how the charges against them will be established. Rightly so, the first thing that the courts will do is to affirm the charges against the accused. Only then will they proceed to conviction or dismissal of charges. When it comes to sexual offence charges, establishing the offence becomes even more crucial.
While the judicial system must protect the rights of a victim, it must also ensure the alleged crime did occur and the assailant is beyond doubt at fault. In this regard, although the victim’s testimony holds great importance, it is not the only thing the court takes into account.
While the media and public treat matters of sexual violence with great sensitivity and demand a speedy reprimand of the accused, the judicial system remains unbiased and impartial. It undertakes a thorough investigation before convicting an individual of such a serious offence.
Evidently, society shows immense empathy and compassion toward the said victim but never thinks from the accused’s point of view. What if the defendant is innocent?
If you are facing such charges and are worried about the aftermath of a conviction on your career, academics, and social life, seek assistance from a reputed sexual assault defence lawyer in Edmonton. A professional criminal defence lawyer has what it takes to build a solid defence against the most complicated sexual assault charges and save you from their reputational damage.
Read Also: The Dreadful Outcomes Of Being On The Sex Offender Registry
In order to help you prepare for what you may face when sexual assault charges are pressed against you, this blog post will systematically explain how the courts in Alberta establish such charges.
Establishing Violation Of Sexual Integrity
The first thing the jury or the judge has to establish is whether the offence actually falls under sexual assault. Unlike the conventional term, rape, sexual assault is not only about forced penetration or coerced physical activities of a sexual nature against a woman, man or a child. The modern term, sexual assault, is more inclusive and is not gender or age biased.
So, before determining whether a sexual assault occurred, we must understand what it constitutes. Accordingly, the Criminal Code of Canada provides a general definition of assault that applies to sexual assault as well. According to Section 265 (1) of the Code, an assault occurs:
- When person A (directly or indirectly) intentionally applies force to person B without the latter’s consent.
- When person A threatens person B using gestures, words, or an act and makes person B believe on reasonable grounds that they have the ability to effect their purpose.
- When person A impedes person B by openly carrying a weapon or its imitation.
Besides the above definition, for an act to fall under sexual assault and not just general assault, the court must determine whether the defendant has violated the sexual integrity of the alleged victim (R. v. Chase 2 S.C.R. 293). For this, the court must confine whether the sexual context of the assault is apparent to a rational spectator.
The Edmonton Police Service puts forth the following relevant factors that help in ascertaining the act’s sexual context:
- 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
- All other circumstances surrounding the act
- Any threats that may or may not be accompanied by force
Regardless, you must remember that sexual assault does not only result from physical contact. Even gestures or comments of a sexual nature constitute as an offence.
Read Also: Misconceptions About Sexual Assault Charges In Canada
Proving Lack Of Consent
Once it is clear that the offence violates the victim’s sexual integrity, it is upon the Crown to prove that the victim did not consent to the act. According to Section 273.1 (1), consent refers to the voluntary agreement of the complainant to engage in the sexual activity in question.
Thus, no consent is obtained if:
- the agreement is expressed by the words or conduct of a person other than the complainant;
- the agreement is expressed by the words or conduct of a person other than the complainant;
- the complainant is unconscious;
- The complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
- The accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority;
- The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Read Also: Sexual Assault And The Law Of Consent In Alberta
Evidently, consent is a complex matter. Many falsely take a victim’s silence as implied consent. The latter is the biggest mistake individuals make. According to the Code, it is upon the initiator of the sexual act to take reasonable steps to ascertain that the victim consents to the activity. If in doubt, the defendant must step back.
If you are facing such circumstances and fear a conviction, request sexual assault defence services from the most experienced sexual assault defence lawyers in Edmonton.
Conviction And Sentencing
Lastly, once the court determines that there was no consent, it will proceed with a summary conviction or indictment, depending upon the offence’s severity. Sexual assault charges can earn the accused a sentence of anything between eighteen months to fourteen years in jail.
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