What is a sexual assault?
In Canada, a sexual assault is any form of unwanted touching of a sexual nature. This includes a broad range of conduct, from groping to rape.
What are the legal elements of sexual assault?
Here we are concerned with sexual assault in its simplest form, under s.271 of the Criminal Code. This is the most commonly charged form of sexual violence in Ontario.
To secure a conviction for sexual assault, the Crown must prove the following elements beyond a reasonable doubt:
- You intentionally applied force to the complainant.
- The complainant did not consent to the force.
- You knew they were not consenting.
- The touching was of a sexual nature.
If there is a reasonable doubt in respect of any of these elements, the judge or jury who is trying your case is required by law to acquit you. However, the law of sexual assault is deceptively complex, and each of these elements has been the subject of significant litigation.
Below, we examine the elements in more detail.
1. The Intentional Use of Force
The force required to secure a conviction for sexual assault need not be violent. It may be a gentle touch, such as rubbing or groping, and includes indirect contact – for example, through the use of a stick or other instrument. The application of force, however, must be intentional. It cannot be the result of an accident or an otherwise involuntary act.
2. The Absence of Consent
The second element in sexual assault prosecutions relates to consent. Here the question concerns the complainant’s state of mind only. If the judge or jury believes that the complainant was not consent in his or her own mind to the force in question, the issue is settled.
Consent must be voluntary. It cannot be the result of threats, coercion, fraud, or the abuse of a position of trust or authority by the accused toward the complainant. In other words, it is not a defence that the complainant “consented”, even if actual words of consent were used, if the consent was a result of these or other exploitative circumstances.
Again, to decide this element of the crime the judge or jury will look at the totality of the evidence in relation to the complainant’s state of mind only. If the judge or jury believes that the complainant was not consenting to the force or activity in question, they will move on to the next element of the analysis.
3. Knowledge that the Complainant was not Consenting
In the sexual assault context, knowledge of the absence of consent can take on several forms. At its simplest, knowledge can mean a basic awareness that the complainant was not consenting because he or she said so.
Knowledge, however, can also mean that the defendant was reckless or wilfully blind concerning consent. These concepts are closely linked, and essentially refer to situations where the accused knows there is a risk that the complainant is not consenting, but chooses to proceed with the sexual activity without making any further inquiries.
It is a full defence in sexual assault prosecutions that an accused person honestly but mistakenly believed the complainant was consenting. However, in Canada consent must be communicated either in words or conduct. A person charged with sexual assault cannot rely on silence, passivity, or ambiguous conduct as a basis for an honest but mistaken belief in consent.
In fact, according to the Supreme Court of Canada, there is an obligation on the person engaging in the sexual conduct to take reasonable steps in the circumstances to ensure that the complainant is consenting. See s.273.2 of the Criminal Code, and the Supreme Court of Canada’s decision in R v. Barton, 2019 SCC 33 for more information.
Furthermore, it is not a defence if the complainant was intoxicated to the point of being unable to freely choose to consent.
4. The Force is of a “Sexual” Nature
In some cases the nature of the alleged touching will be in issue. “Sexual” touching refers to touching that violates the sexual integrity of the complainant. The question is whether the sexual nature of the touching would be apparent to a casual observer in all the circumstances.
The part of the body touched, the situation in which it occurred, the relationship between the parties, the words or gestures accompanying the act as well as all other relevant circumstances will be considered by the judge or jury.