In our earlier blog post, we discussed different aspects of some of the common sexual assault offences in Alberta according to the Criminal Code of Canada. Now, we will talk about some effective defences towards various types of sexual assault charges in detail. Before that, we will elaborate on some terms associated with criminal acts of sexual assault.
Sexual interference refers to the involvement of an individual who, for a sexual intent, directly or indirectly comes in contact with a person, who is under 16 years of age. The prosecution has to prove that the contact indeed occurred for a sexual purpose. This is defined according to specific circumstances, including body part touched, contact nature, the situation under which the contact occurred, and gestures made and words spoken during the alleged sexual act.
Invitation To Sexual Contact
Invitation to sexual contact refers to the involvement of an individual who, for a sexual intent, persuades another individual under 16 years of age to come into direct or indirect contact with the body of any individual, including themselves. Contrary to sexual assault that requires an actual act of assault, invitation to sexual contact is mainly a crime of communication.
Under the Canadian Criminal Code, the age of consent for sexual contact in Canada is 16. Nonetheless, if an individual is under 18 years of age, it’s also an offence to engage in a sexual act, if
- The person is in a state of authority or trust
- The individual is in a place of dependency
- Nature of the relationship is exploitive
Most of the time, these types of criminal charges originate from inappropriate sexual relationships that involve coaches, caregivers, and teachers of individuals under 18 years of age.
Defences To A Sexual Assault Charge
Just like any other criminal case, the proof of burden lies on the prosecution. The Crown must prove certain aspects of a sexual assault to establish guilt beyond a reasonable suspicion. The prosecutor must have enough proof about intentional contact of sexual nature and the absence of consent to prove guilt on the accused.
The nature of defences to sexual assault charges vary from one case to another. Three potential defences to such criminal offences are:
- The sexual act didn’t happen
- The sexual act did happen but with the complainant’s consent
- The sexual act did happen, and the complainant didn’t consent, but the accused had a mistaken belief in consent
The Sexual Act Did Not Happen
Often, in the case of very young children, the complainant comes to believe that the sexual assault happened, when, in fact, it did not. Unlesss, the accused has a solid alibi suggesting they were somewhere else at the time of an alleged sexual assault, it’s incredibly likely that they will have to testify in their defence that they didn’t commit the sexual act.
The Sexual Act Happened, But The Complainant’s Consented
In some cases, the consent may have existed at the time of the sexual act, but then for different reasons, the complainant makes a false claim that they did not consent. The entire defence relies on attacking the credibility of the complainant in this type of situation.
Mistaken Consent Belief
This type of defence applies when the complainant denies the presence of consent, or there was an incapacity of consent that was interpreted as real consent by the accused. The defence must give the evidence of equivocality or ambiguity, indicating the possibility of the mistaken belief provided that the accused was not being willfully reckless as to consent.
To present an honest but mistaken consent belief, the defence must prove that the accused took reasonable steps to establish concrete consent and that the complainant also communicated their permission to engage in a sexual act. Reasonable steps can vary from case to case and depend on the totality of the unique circumstances in one’s case.
Slaferek Callihoo is a leading criminal defence law agency based in Edmonton that deals in successfully defending different types of assault offences, including sexual assault charges. Visit our website to get a better understanding regarding our legal services or contact us for expert legal advice.