Sexual assault is a serious criminal charge typically requiring a lawyer to defend the accused person. It is important to understand the essential components of the charge as a failure by the Crown to prove an essential element of the offence may result in an acquittal of the accused. In essence, a judge or jury must be convinced beyond a reasonable doubt on each of the essential elements of the offence.
Two essential ingredients of a sexual assault charge are proving that the accused person committed the “act” (also known as the “actus reus”) and that the accused person intended to commit the act (also known as the “mens rea”).
Sexual assault requires the Crown to provide a judge with specific evidence that an accused person committed an identified assault of a sexual nature such that the sexual integrity of the victim was violated.
The majority of sexual assault charges rely on the regular assault provisions of the Criminal Code, which set out the following:
1. Touching that constitutes an assault within the definition of section 265(1)(a) of the Criminal Code;
2. The touching occurred in sexual circumstances;
3. There was a lack of consent to the touch from the victim.
The accused must apply some force to the victim for this section to qualify as sexual assault. A judge will look at the following factors:
1. Which part of the body was touched;
2. The nature of the contact;
3. The situation in which the contact occurred;
4. Any words or gestures that accompanied the contact;
5. The intent or purpose of the accused, including sexual gratification;
6. Any other circumstances surrounding the conduct.
There are two elements that the Crown prosecutor must prove to demonstrate whether the accused person intended to commit the sexual assault:
1. That the accused intentionally acted;
2. That the accused was aware of, or willfully blind or reckless to, the victim’s lack of consent to the sexual act.
There is a defence available for an accused who mistakenly believed that the complainant consented to be touched in a sexual manner. The accused must demonstrate, in most cases, through his or her own testimony, that he or she honestly believed that the complainant communicated consent to engage in sexual activity. In most circumstances, an accused can be convicted if they are aware that the complainant did not expressly consent to whatever sexual act is in question.
Noah Neaman has over 25 years of experience as a lawyer and has an insightful understanding of the best legal defences available for sexual assault charges. He works diligently to determine the best course of action. Call Noah at 778-881-1785 for free consultation.
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