When Are You Guilty Of Sexual Assault Under Section 271 Of The Criminal Code?

February 24, 2022

When Are You Guilty Of Sexual Assault Under Section 271 Of The Criminal Code?

Sexual assault cases are far more common in Canada than one would expect.One in three women (32%) and one in eight men (13%) have reported experiencing unwanted sexual behaviour in public.

Although these numbers are alarming, you will be surprised to know that of every 100 incidents of sexual assault, only 6 are reported to the police. Thus, we cannot even statistically know for sure what the actual percentage is of women and men who undergo sexual assault.

This gender-based violence is defined as forming sexual contact with an individual without his/her consent.

According to the Canadian Criminal Code, all Canadians have the right to live free from violence which is why sexual assault is considered a serious offence and can have serious repercussions.

Anyone who is charged with a sexual offence might have to face lifelong collateral consequences including:

  • Registration on the National Sex Offender Registry (NSOR)
  • Employment restrictions
  • Termination
  • Unwanted publicity
  • Travel restrictions, and more

If you have been charged with sexual assault but there is more to your story, it is better to hire a criminal lawyer who has the required experience and expertise in dealing with sexual assault cases.

In this blog, we have listed the three factors based on which the Crown prosecutor will convict you for sexual assault. If either one of the below-mentioned circumstances are proved, you will be found guilty of sexual assault.

An Assault Of Sexual Nature Was Committed

According to Section 265(1), there are three types of assault. Sexual assault means that you have “committed one of these assaults and that the assault had a sexual element”.

  1. The sexual act was committed without the consent of the other person and force was applied directly or indirectly.
  2. The victim was threatened either by words or gestures that force will be applied to attempt sexual assault and the victim had reasonable grounds that the offender will follow through.
  3. The victim was accosted, impeded or begged while the offender was in possession of a weapon.

Most sexual assaults performed lie in the first category. However, to convict an offender in this case, the Crown prosecutor must prove that the victim was touched in sexual circumstances without their consent.

In the second case, the crown prosecutor must prove that the offender made a credible attempt to perform sexual assault, threatened the victim using words or implied to hurt the victim if they denied indulging in sexual activity.

The Act Was Intentional

When it comes to sexual assault, merely intention is enough. For example, if a person, without consent, touches someone else inappropriately, albeit as a joke, it will be considered as sexual assault. Only the intention to touch would suffice.

However, if the touch is accidental, it will not be considered sexual assault and the offender will not be considered guilty in this case.

Offender’s State Of Mind

If the crown prosecutor can prove beyond a reasonable doubt that the alleged victim did not consent, it is time to analyze the offender’s state of mind. There are three situations that are analyzed in this case:

  1. The offender knew that the victim was not consenting.
  2. The offender chose not to ask the victim for his/her consent.
  3. The offender was reckless and did not really care about the victim’s consent.

If either of these three states apply to the offender, he/she will be convicted for sexual assault. In the case that the crown prosecutor proves one of the mentioned states, the defence of honest but mistaken belief will be disregarded.

However, if the offender is not compatible with these states, he/she can apply for the defence of honest but mistaken belief.

Moreover, at this point, it is important to understand that consenting in the past does not mean that a person is consenting in the present. Any consent to sexual activity needs to be ongoing and active.

About Slaferek Law

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