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Sexual Assault, Alcohol and Consent

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  • Sexual assault is a serious crime in Canada and being accused of sexual assault can damage your reputation.
  • The Criminal Code of Canada defines assault as a person who:

1)         without the consent of another person, applies force intentionally to that other person, directly or indirectly;

2)         attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

3)         while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

 

  • This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
  • A common issue in sexual assault cases is whether or not the sexual activity was consensual. According to the Criminal Code, consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question.
  • If you can satisfy the court that the complainant actually consented to the sexual act, you will not be found guilty of sexual assault. However, the defence of consent becomes messy when alcohol becomes involved.
  • There are several situations in which the court deems that the complainants consent “doesn’t count”, one of them including the complainant is incapable of consenting to the activity due to intoxication. In order to determine if consent was given, the Court will look at the parties words, conduct, and if reasonable steps were taken.
  • The Court will not accept an accuser’s silence or passivity as a form of consent – implied consent is not a defence to sexual assault. If it is found that that the accused continued sexual conduct after the accuser indicated “no” through words or conduct, they can be convicted of sexual assault.
  • According to s.273 of the Criminal Code, the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent.
  • Just taking “some reasonable steps” alone will not prove consent, but if it  turns out that consent was not given, it provides the defence with some credibility. A
  • defence will come under question if the Court feels the accused was reckless, willfully blind, or willfully intoxicated while taking reasonable steps to attain consent.
  • According to s.273.2 (a), the Court will not allow consent to be used an excuse for not recognizing that a person did not consent if the accused was reckless, willfully blind or willfully intoxicated.

According to s.271 of the Criminal Code, everyone who commits a sexual assault is guilty of:

1)    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

2)    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.

  • An individual charged with sexual assault could be convicted of additional sexual crimes as well depending on the circumstances. If the accuser chooses to press charges, you may be forced to take the stand and testify.
  • Generally, prosecutors are reluctant to force victims to testify against their will, however they do have the power to force your testimony and will do so if they feel it is necessary.
  • Sexual assault is a serious accusation and because of this, it is important to be represented by an experienced criminal defence lawyer if you intend to fight it.
  • If you are facing criminal offence charges contact Kostman and Pyzer, Barristers for your free consultation today!
20 Feb 2018

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