Sexual assault victims undergo great physical and mental turmoil. One of the most difficult questions they face is whether or not they should report the crime to the police. This is referred to as “pressing charges” against the accused.
However, at this point, it is important to understand that it is not up to the victim to press charges, nor is it their decision. Rather, this is a decision of the Provincial Crown Prosecutor since the victim is merely a witness to the crime itself.
After the charges are pressed, the victim might be forced to take the stand and testify under oath or affirmation. Prosecutors are generally reluctant to force victims to testify against their will. However, know that they have the power to force a victim to testify if they feel it is in the public’s best interest.
As far as the accused is concerned, they have the right to reasonable bail but it is possible for the individual to be detained if the order of a Justice in the bail Court gives the order. Moreover, if the accused is presumed innocent of an offence and still denied bail, they will be held in jail until the day the trial is completed.
Sexual Assault According To Canada’s Criminal Code
Although Canada’s Criminal Code has no specific “rape” provision, it defines assault and provides a specific punishment for “sexual assault.” The criminal code provision reads:
A person commits an assault when:
- Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
- He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
- While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
The provision further details that this section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
The text written in the code indicates that a person could be convicted of sexual assault without physically touching the victim if they make a threat of sexual assault. However, the conviction based on verbal claims depends on how the courts interpret this provision.
Consent
When it comes to sexual assault, consent is a common issue based on which the accused tries to plead for innocence. There are a few set rules in terms of defining what constitutes consent and what doesn’t. The provision also defines some instances which do not constitute consent.
For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:- The application of force to the complainant or to a person other than the complainant
- Threats or fear of the application of force to the complainant or to a person other than the complainant
- Fraud
- The exercise of authority
Consent gets even more complicated when alcohol and drugs are involved. In cases like these, it becomes a question of whether the victim had the capacity to consent.
Sentence For Sexual Assault
The sentence for the accused, if convicted, depends on the severity of the situation and their previous records. The Code specifies the possible sentences for sexual assault as follows:
Everyone who commits a sexual assault is guilty of- An indictable offence and is liable to imprisonment for a term not exceeding ten years; or
- An offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
If the accused is convicted of aggravated sexual assault, the penalty is more strict.
The Criminal Code allows for increased penalties for sexual assault where the accused “wounds, maims, disfigures or endangers the life of the complainant”. The provision reads:- Everyone commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
- Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
- where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- in any other case, to imprisonment for life.
Note that where a gun is used, a conviction will result in an automatic sentence of at least 4 years.
About Us
At Slaferek Law, our criminal lawyers are well versed with the rights of its citizens. We help you get out of difficult situations and help you with Unreasonable Searches & Seizures. We have successfully defended clients who have been arrested and accused of illegally possessing such substances as marijuana, cocaine, ecstasy, methamphetamines, heroin, oxycontin, pain killers, and illegal prescription drugs.
