Sexual Offences

The offence of sexual assault, provided under section 271 of the Criminal Code requires the Crown to prove three elements:  a contact, the sexual nature of the contact and the lack of consent. There are several levels of severity for sexual assault (sexual assault, sexual assault with a weapon, aggravated sexual assault). There are also several degrees of severity in relation to the gesture, which can range from a simple touch to complete sexual intercourse.

When a person is charged with sexual assault, it is important for the criminal lawyer to evaluate whether the conduct was of sexual nature. The question then is: »Can a reasonable person perceive the sexual context of the aggression? ». To answer this question, the lawyer must evaluate several elements : the part of the body, the nature of the contact, the situation in which it occurred, the words or gestures that accompanied the act, and all other circumstances surrounding the conduct, including any threats.

The notion of consent refers to the voluntary agreement of the complainant to sexual activity. Consent should not be assumed in these situations:

• The consent is manifested through words or conduct of another person (a person who does not take part in the sexual activity)
• The complainant is incapacitated
• The accused person persuades the complainant by breach of trust or power
• The complainant expresses, through words or conduct, the lack of agreement
• After having consented to the activity, the complainant manifests through words or conduct, the absence of consent that the sexual activity should continue.

Each of us is responsible for making sure that the activity is consensual. Reasonable steps should be taken to secure consent.