Sexual Assault – s.271 of the Criminal Code

Sexual Assault – s.271 of the Criminal Code

What is Sexual Assault?

Section 271 of the Criminal Code defines the punishment when one accused person is found guilty and convicted of a sexual assault:

Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

The actual definition of sexual assault is given by the common law:

A person commits sexual assault when the person touches another person intentionally; the touching is of sexual nature; and the touching is without consent.

Whether the touching is of sexual nature is assessed by a judge, or a jury in a jury trial, by looking at various factors, such as the part of the body being touched, the nature of the contact, the words or gestures accompanying the conduct, and the accused’s intent or purpose, including the presence or absence of sexual gratification.

Sexual nature does not require sexual gratification. The accused’s intent is only one factor to consider in deciding whether the overall conduct has a sexual context. Its importance depends on the circumstances. Therefore, sexual nature can be found in circumstances involving only kissing and touching of hands.

Consent

Consent is a mutual agreement. In order for the mutual agreement to be valid, the person giving the consent must have the capacity to give the consent. When a court determines consent, the court will consider the medical and physical conditions the person was in. For example, whether the person was asleep, intoxicated, drugged or whether the person had some medical conditions that prohibits him/her from fully appreciate what he/she was consenting to.

A validly given consent, however, can be invalidated by the following reasons:

    1. the application of force to the complainant or to a person other than the complainant;
    2. threats or fear of the application of force to the complainant or to a person other than the complainant;
    3. fraud; or
    4. the exercise of authority.

Age of Consent

The “age of consent” in Canada is 16 years of age. Once a person turns 16, they can give consent to another person to engage in sexual activities. When a person is between the age range of 12 and older but younger than 16, the age of consent is limited to certain age gaps.

For 12 or 13 years old, they are legally able to consent to sexual activity with someone who is less than two years older than them, so long as the other person:

    1. Is not in a position of trust or authority towards them,
    2. Is not someone with whom they are in a relationship of dependency, and,
    3. The relationship between the 12 or 13 year-old and the other person is not exploitative of the 12 or 13 year-old.

If a person is 14 or 15 years old, they are legally able to consent to sexual contact with someone who is less than five years older than them, so long as the other person:

    1. Is not in a position of trust or authority towards them,
    2. Is not someone with whom they are in a relationship of dependency, and,
    3. The relationship between the 14 or 15 year-old and the other person is not exploitative of the 14 or 15 year-old.

If a person is under age 16 and none of these exceptions apply to that person, then the accused person cannot raise consent as a defence, because, in such as situation, consent is not recognized by the law.

For example, even if a 14-year-old agrees to have sex with someone aged 20, in law, the 14-year-old’s “consent” is considered invalid, and the 20 year-old would not be able to raise consent as a defence. If the person’s age is 12 years old and she agrees to have sex with a 15-year-old, the 15-year-old, again, cannot raise consent as a defence, because the age gap bars consent as a defence in such a situation.

Honest but Mistaken Belief in Consent

When a sexual complainant states that he or she did not give consent, an accused may be able to raise a defence by claiming that he or she had an honest but mistaken belief in that a consent existed during the entire course of the sexual encounter. The court will assess the reasonableness of the claim of the honest but mistaken belief.

However, th honest but mistaken belief in consent cannot arise from any of the following scenarios:

    1. self-induced intoxication;
    2. recklessness or willful blindness; or
    3. the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

 

By Jake Shen