Sexual Assault

What Is Sexual Assault?

The term “rape” no longer appears in the Criminal Code; instead, a new category of sexual assault has been created. “Assault” is defined as the intentional application of force without the victim’s consent. To determine whether an assault is sexual the courts will look at all of the circumstances, including the words and gestures used, such as threatening the victim, whether the motive was sexual gratification, the nature of the contact, whether the accused tried to hide it, and what parts of the body were involved.

With the change in terminology, the focus has moved from the sexual aspect to the violent nature of the crime. Sexual assault is an assault which is committed in circumstances that are sexual in nature and result in the violation of the sexual integrity of the victim. Unlike rape, sexual assault can be committed by women as well as by men and may be committed by one married spouse against the other. The victim may be female or male. It is not necessary for the Crown to prove that vaginal penetration by a penis occurred. Oral intercourse, anal intercourse, and sexual touching without consent are within the scope of sexual assault offences. In order to prove a sexual assault there needs to be proof of intention to touch, knowing of (or being recklessly or willfully blind to) a lack of consent, either by words or actions, from the person being touched.

The Criminal Code establishes three categories of sexual assault. The first category is the least serious and the accused may be charged either by summary conviction (a less serious offence), which has a maximum sentence of eighteen months imprisonment or a $2,000 fine or both; or by way of indictment, which has a maximum sentence of ten years imprisonment.

Under the second most serious level of sexual assault, the maximum penalty is fourteen years imprisonment. A charge may be laid under this section if a weapon is used, threats to cause bodily harm to someone other than the victim are made, the victim suffers bodily harm, or more than one person is involved in the commission of the assault. The third level, aggravated sexual assault, is the most serious and involves the wounding, maiming, or disfiguring of the victim, and carries a maximum sentence of life imprisonment.

Under the law, the victim’s past sexual history may be introduced only in certain circumstances. The accused’s lawyer must give written notice that he/she intends to introduce the victim’s past sexual history. The judge, in closed court proceedings, must then determine whether such evidence is used merely to rebut evidence put forward by the Crown Prosecutor to establish the identity of the accused, or to reveal that more than one person committed the offence and the victim was intimidated by the first assailant and thus consented to the second assailant. For example, a woman is sexually assaulted by one man and another man comes along who does not use force, but the woman goes along with the sexual intercourse because she is too afraid to say no.

Generally, the main issue in a sexual assault case will be whether or not the victim consented to the act. Obviously, if the victim consented, then no crime has been committed. Consent is not valid if it has been obtained by: use of force against the victim or someone other than the victim; threat or fear of the use of force against the victim or someone else; fraud such as not disclosing that you are HIV positive or deliberately deceiving someone about it; or a person in authority, such as an employer, teacher, or parent who uses this authority to obtain consent.

Also, when it comes to sexual assault there is no such thing as implied consent (just because she did not say no does not mean it is a yes). This also means one cannot presume that they have a person’s consent through their actions. For instance, just because a woman is dressed in a certain way or acts a certain way may not mean she wants to have sex.

Where the accused is deliberately ignorant as a result of blinding himself to reality, the law will presume knowledge, in this case knowledge of the nature of the consent, and the accused cannot claim to have been under the mistaken belief that the victim consented.

The accused must also prove that he or she took reasonable steps to determine whether the victim had been consenting. This duty to find out if the victim is consenting is especially required when the victim had said no first. It is reckless conduct to “test the waters” to see if the consent has been “restarted.”

This “reasonable steps requirement” is tested by asking if a reasonable person who was aware of the circumstances would have taken further steps before proceeding with the sexual activity. If yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If no (or even maybe) then the accused would not be required to take further steps and the defence would apply.

Recently the Supreme Court has also ruled that consent which has been given in advance for a sexual act is not valid. Specifically, if a person consents to a sexual act and then is unconscious while that act is preformed, their initial consent can be rendered invalid.

What Should I Do If I Am Sexually Assaulted?

If you are sexually assaulted, you should call the police or a Sexual Assault Centre as soon as possible. (In Calgary, the Sexual Assault Centre is called Calgary Communities Against Sexual Abuse or CCASA). A Sexual Assault Centre will provide moral or emotional support, will call the police for you if you wish, will send someone to be with you, or will accompany you to the police station or the hospital. A friend could serve this same function; however, the centre volunteers are trained to assist sexual assault survivors and will explain what you can expect to happen.

The police recommend that you do not do anything that will destroy any evidence of the attack. Do not take a bath, douche, or change your clothes. If you had been forced to perform oral sex, do not drink anything or rinse your mouth. Do not wash your hands or file your nails, since there may be a sample of the attacker’s skin underneath your nails. If you report a sexual assault to the police, you will be questioned about the assault. The volunteer from the sexual assault centre may remain with you during the questioning, if you feel that her support would help. You will also be taken to the hospital for a medical examination to treat any injuries you may have suffered during the attack and to gather evidence. You will be given an internal examination and have swabs taken to test for the attacker’s DNA. Your pubic hair will be carefully combed to extract any hairs that may identify the attacker. Clippings will be taken from your nails to examine for skin traces. You will be thoroughly examined for any evidence of bruising or injury. These procedures are necessary if the attacker is to be successfully prosecuted. You should also ask the doctor about a pregnancy test, a “morning after” pill, and tests for HIV and any other possible diseases. Usually the doctor will warn you of the necessity of these tests, but if the doctor does not, do not hesitate to ask.

The Sexual Assault Response Team is a group of professionals from medical and police services who provide advice and comprehensive help to victims within seventy-two hours of the abuse or assault. They do most of the assessments of sexual assault victims in Calgary including domestic violence, suicide risk, safety, and appropriate accommodation. They are located in the Sheldon M. Chumir Health Centre in Calgary but can meet the survivor at another hospital if that is necessary.

The survivor can contact CCASA even after seventy-two hours has elapsed which offers a twenty-four hour crisis service, short term crisis counselling, and information nights, an anonymous drop-in for survivors, those assisting survivors, and support workers. CCASA also offers support services to male victims of sexual assault. See the Legal and Community Resources section for more contact information. 

What Happens If I Go to Court?

If the attacker is caught and charged, you will be the main witness in the trial. You will have to testify at the preliminary hearing (if the Crown proceeds by way of indictment) as well as at the trial. Many months may pass between the attack and the trial, and you may find it difficult to remember all the details. It will be necessary for you to give detailed evidence about the incident. As pointed out above, the major issue in most sexual assault trials is whether or not the victim consented to the act. The accused’s lawyer will try to convince the court that you did give consent by, trying among other things to damage your credibility. The lawyer may only question you about your past sexual activities if the requirements set out above are met. You might feel that it is you, and not the accused, who is on trial. This is a common feeling among victims of sexual assault. The accused is not required to testify. It is up to the prosecution to prove guilt beyond a reasonable doubt, and not for the accused to prove innocence. Only through your testimony, and any evidence that may support it, can the accused be convicted.

There are some ways in which your identity can be hidden during the trial such as not allowing the media to publish your name, not allowing the public to be present during the hearings, and going by a different name (usually the victim’s initials) during the hearing and in the court documents.

If any physical evidence, such as DNA or medical records of injuries, was collected it is also used at the trial. The lawyers from each side can also rely on evidence from the internet such as instant messenger chat logs or Facebook to show, for instance, that there was an ongoing consensual sexual relationship or that the attacker had threatened or apologized to the victim for the assault.

Do I Have to Testify?

Occasionally, a witness does not want to testify in court proceedings. This can happen for many reasons, but generally, in sexual assault cases, a witness is afraid to testify for fear of retaliation by the accused or someone else. Without the testimony of the witness, there may not be enough evidence to convict the accused. A witness who refuses to testify because her testimony will indicate that she was involved in the commission of a crime should ask the court for protection from prosecution under the Charter and the Evidence Act. If a witness does not want to testify because of fear of the accused, the Crown Prosecutor can take whatever reasonable precautions are necessary to protect the safety of the witness. 

If the court does not excuse the witness from giving evidence, the witness must testify. If the witness does not testify, there may be a hearing to determine if the witness can show an acceptable legal reason to the court why the testimony need not be given. If the court decides that testimony must be given and the witness still does not testify, the witness will be held in contempt of court. The witness can be imprisoned for a set period of time or until the testimony is given. There is a dispute between those who believe it is unjust to punish a frightened witness who refuses to testify and those who believe that the interests of the public and the legal system require such testimony at any cost in order to bring a dangerous offender to justice. Without crucial testimony, a dangerous offender may be released and will be free to commit the offence again. If you are called as a witness in any legal proceedings and you are not willing to testify, you should see a lawyer or contact Legal Aid to find out your rights and duties as a witness. 

Are There Any Other Legal Proceedings I Can Take?

You may sue the attacker in civil court for damages, just as you would sue someone who damaged your car in an accident. To start a civil action, you should hire a lawyer. This may be a fairly expensive procedure and there is no point in it unless the attacker has assets from which he could pay damages. Damages in a civil suit are compensation for any losses or expenses arising out of the attack; for example, ruined clothing, lost wages, or medical expenses, as well as compensation for your pain and suffering. The standard of proof for civil cases is different from that in criminal cases which means that even if the attacked is found not guilty in the criminal trial he/she may still be found liable for damages in a civil case.

If you were injured as a direct result of a violent crime in Alberta you may be eligible for an award under the Victims of Crime Act. The Financial Benefits Program created by the Act, provides direct assistance, with a one-time financial benefit based on the severity of the victim’s injuries. The benefit amount is set in the regulation to the Act. For further information, refer to the section of Victims of Crime Financial Benefits below.

A volunteer from a sexual assault centre will help you complete a third party report, if you wish one. This is a report to the police about the incident and it contains all the details about the attack except your name. No charges will be laid as a result of the report, but these reports are very helpful to the police when they investigate other crimes of sexual violence.

Some Facts about Sexual Assault

Many women who have been sexually assaulted feel that perhaps they are somehow to blame. Studies indicate that a woman’s age, appearance or dress have little to do with the assault. It is primarily a crime of violence, rather than a crime of sex. Studies also indicate that a substantial proportion of all sexual assaults against women are committed by someone that the victim knows. It may be a friend, a relative, a neighbour, or even a date. This is one reason why many attacks go unreported; a woman may be unwilling or too embarrassed to testify against someone she knows.

Sexual assault is an experience that leaves its victims emotionally and physically scarred. Emotional help is often required for years after the event. Sexual Assault Centres offer counselling and will also refer victims to other agencies or counselling services. A woman who lives in an area where there is no centre should ask her doctor to refer her to a counselling service.