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Toronto Criminal Lawyer Mark Zinck

Sexual Assault and Rape Charges, Toronto


Sexual assault is a relatively common offense that carries extremely serious consequences upon conviction. It is also one of the easiest crimes to be charged with in Canada in that many cases are based merely on a victim’s accusation.

What is Sexual Assault?

The Criminal Code of Canada does not specifically define “rape” in terms of specific acts. The crime of sexual assault is codified within the general assault provision (s. 265(2)), which makes it a crime to intentionally apply force to another person without their consent.

This broad criminal definition of a sexual assault encompasses both extremely minor acts (such as perhaps a tap on a person’s buttocks), to full blown forced intercourse. In fact, s. 265(b) takes the definition even further to include instances when the accused merely “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”. You could be charged for sexual assault even without so much as touching the victim.

All of the following circumstances could lead to a sexual assault charge:

1) A man is caught after forcibly raping a stranger in an alley;

2) A woman wakes up next to a man after a night of drinking and believes he had sex with her and claims she was too intoxicated to consent;
 
3) A man goes on a date with a woman he meets off the internet and she claims he touched her breasts without consent in his car;

4) A 21 year old man has sex with a girl who tells him she is 16 years of age, but in fact is only 15;

5) A woman reports to the police that a man had touched her buttocks on the dance floor of a nightclub without her consent.

While examples such as the first one above are obvious sexual assaults, most cases are not nearly so simple and hinge on issues such as consent, mistaken belief in consent, and mistaken belief of age.

Given that alcohol or drug use is often involved as well, determining exactly what happened becomes extremely difficult. All it takes is one bad date, or one night out gone wrong, and you could find yourself facing a serious sexual assault charge.

Consent in sexual assault cases

The vast majority of sexual assault cases tend to be “he said, she said” type scenarios. The question is often not whether any sexual activity took place, but rather whether the victim had consented to it, or whether the accused had a reasonable mistaken belief in consent.

The criminal code also specifies that a victim can withdraw consent at any time, even if she has already consented to sex (see s. 273.1(2)(e) “the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.”).

The victim will thus take the stand and testify as to her recollection of the events. The court will be looking to assess her memory of the event, and whether she communicated either orally or through her physical actions that she did not consent.

She doesn't have to say "no"

Even if she did not verbally say “no” or push the accused off of her, the court may still convict the accused of a sexual assault in certain circumstances.

She could, for example, testify that she was so scared that she just laid there while the accused had sex with her. If the court believes that she gave no indication of consent, and that the accused could not have reasonably believed her to be consenting, he could still be convicted.

Date rape and alcohol related sexual assaults

There are some circumstances where even if the victims says yes, the act could still be considered a sexual assault. If the victim is found to be “incapable of consenting to the activity”, the accused may still be convicted despite her saying “yes”. In fact, this could support a conviction even in cases where the victim asks the accused to have sex with her.

If you’re at a party and a drunk girl “puts the moves on you”, you could easily find yourself facing an extremely serious sexual assault charge if she later tells the police you had sex with her while she was drunk. These types of accusations are not rare and routinely destroy people’s lives.

Mistaken belief in consent

Many times, the accused is under the belief that the victim had consented to the activity, however the s. 273.2 of the criminal code limits this defence in three specific circumstances:

1) Self induced intoxication;
2) Recklessness or wilful blindness;
3) Where the accused does not take reasonable steps to ensure the victim is consenting.

The criminal code thus puts a burden on the accused to look for specific indicators of consent. It is not enough to “just assume” a girl is consenting to sex.

Just because she doesn’t say no or specifically push you away, does not mean she is legally consenting to sex. The criminal code requires you to be somewhat proactive in ensuring that she agrees in instances where her actions are not obvious (i.e. She is just laying there not saying anything).

Recklessness or wilful blindness

A guy may be afraid that a girl will say no if he asks the her specifically if she wants to have sex. In the heat of the moment, such a question may ruin the mood and invite rejection. So instead, given that she hasn’t said “don’t do it”, he just goes ahead and proceeds with sex.

In these circumstances, while the guy has no specific reason to believe the girl is not consenting, his belief in consent could easily be found to be as a result of his “recklessness or wilful blindness”.

As a result, his defence of “reasonable belief in consent” is invalid and he will likely face a conviction. When these circumstances are combined with faulty recollection as a result of one or both of the parties being drunk, the situation becomes even more risky.

Age of consent

In Canada, the age of consent is 16 years (s. 150.1 criminal code). A 16 year old can legally consent to sex with 62 year old. Prior to 2008, the age of consent was 14 years. There is an exception to this in cases where one person is in a position of trust towards the other. For this reason, a 16 year old likely cannot consent to sex with her 42 year old teacher.

Mistakenly believed girl was legal age to consent

Some individuals wind up charged with sexual assault after having sex with a 14 or 15 year old they believed to be 16 years of age. The criminal code limits this defence to circumstances where the accused took “all reasonable steps” to ensure the victim was of proper age. Just because a girl says she is 16 is not necessarily enough to meet this definition.

For example: Two 15 year olds attend a college party and claim to be at least 16 years of age. One of them has sex with an 18 year old at the party. The next morning, the girl who had sex returns home and her mother questions her about what she did last night. The girl admits to having sex and the mother takes her to the police station to give a statement. After this, the guy is confronted by police in his dorm room and charged with sexual assault.

In this case, the court is going to look for evidence that he took “all reasonable steps” to ensure the girl was old enough to consent to having sex. If she didn’t mention her age, and he didn’t ask or attempt to find out how old she was, he likely would be found guilty. The court is going to assess factors like what the accused knew about her background, how old the girl looks, whether she was engaging in activities indicative of age like driving a car or entering nightclubs, etc.

Since the criminal code is so open and generally worded there is no specific definition of what taking “all reasonable steps” actually means. It is certainly not safe, however, to assume that a young looking girl is telling the truth about her age if you have no other information about her background.

Sexual Assault Sentences

A sexual assault conviction can carry a sentence ranging from probation to up to 10 years imprisonment. Unlike most offences, many individuals with no prior criminal record are routinely sentenced to prison for first offences.

It is not uncommon for a person with a clean record who is accused and convicted of a sexual assault in a typical “mistaken belief of consent” type scenario to receive a sentence of around 3 years in prison. This is certainly something to think about before you agree to sleep with the drunk girl at the party who seems interested in you!

Sexual Assault Lawsuits

It is possible for victims of sexual assault to sue their assailants civilly for hundreds of thousands of dollars in damages (pain and suffering + income loss). Unlike a car accident claim, where you are indemnified by your insurer, you are left to pay these tremendous judgments on your own.

With a criminal conviction, a victim can easily move forward with a sexual assault lawsuit against you where the burden of proof upon her is even less. In fact, even if you are acquitted in criminal court or never charged you can still be sued in this manner. Being convicted in criminal court, however, would make it extremely difficult to fight a sexual assault civil lawsuit because a court has already ruled it to be beyond a reasonable doubt that you did it (which is even more certainty than is needed in civil court).

Further, the bankruptcy act deems sexual assault judgments as non-dischargeable debt. This means you won’t be able to get rid of a $250,000 judgment against you (which is not uncommon) by simply going bankrupt. You are stuck with it until you pay it off. Many offenders are forced to sell assets (such as their home) in order to pay off sexual assault judgments.

It is almost inconceivable how easily a single sexual assault accusation against you can destroy your life and future.


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Mark Zinck
Criminal Defence Attorney
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