There are several offences in the criminal code that can fall under the umbrella of sexual assault:
- Sexual Assault
- Aggravated Sexual Assault
- Sexual Assault with a Weapon
- Sexual Assault Causing Bodily Harm
- Sexual Interference
- Sexual Exploitation
1. Sexual Assault
In Canada, the definition of Sexual Assault means to touching of a sexual nature, without a person’s consent. This definition can include lots of actions, such as kissing, fondling, groping, sexual intercourse, or any unwanted touching of a sexual nature. Therefore, sexual assault is not just “rape”, it can include many other actions short of full intercourse. If the action violates a person’s sexual integrity, chances are it could be considered sexual assault.
The Canadian Criminal Code offence of sexual assault can be found in section 271. However, you will not find a definition of sexual assault in the Criminal Code, because the definition of sexual assault must be interpreted in reference to the definition of assault, found at section 265. Therefore, if we look at the definition of assault and use it in the context of a sexual assault, the result is the following three elements:
- Applies force intentionally (ie. touching), directly or indirectly
- Touching was of a sexual nature
- Without consent
All three of these elements must be present for a person to be guilty of sexual assault.
a.Sentencing for Sexual Assault
These types of offences can have more or less serious consequences depending on the type of election made. The Crown Attorney can elect to proceed by indictable or summary election. If the Crown elects to proceed by indictment, an accused person will have the right to have a preliminary hearing in the Ontario Provincial Court and have a trial in the Superior Court. However, if found guilty, or if a person decides to plead guilty to an offence that the Crown has elected will proceed by indictment, there will likely be more severe sentences involved than if the Crown had elected summarily.
If a person is guilty of sexual assault that proceeds by indictment, they are liable to a term of prison for a maximum of 10 years. If the victim is under the age of 16 years, they are liable to a term of prison for a maximum of 14 years and a minimum of one year.
If a person is guilty of sexual assault that proceeds by indictment, they are liable to a maximum of 18 months in prison. If the victim is under the age of 16 years, they are liable to a term of prison for a maximum of 2 years less a day and to a minimum of 6 months.
b. Are Sexual Assault and Sexual Harassment the Same Thing?
Sexual assault and sexual harassment are not the same thing. Commonly in the news and in conversation, we may hear these terms used as if they are one in the same. There are very big differences between sexual assault and sexual harassment and the two should not be confused.
Sexual Assault, as described above, is sexual touching without consent. Sexual harassment, on the other hand, does not involve sexual touching and typically is in the form of words or gestures (ie. a “cat call”).
One of the most important differences between sexual assault and sexual harassment is that sexual assault involves physical touching, where sexual harassment can be just words or gestures and does not involve touching.
2. Aggravated Sexual Assault:
Any sexual assault that results in wounding, maiming, disfiguring or endangering the life of the victim is considered an aggravated sexual assault. Aggravated sexual assault is defined in section 273 of the Criminal Code. Therefore, to meet the definition of an aggravated sexual assault, you must first meet all of the requirements for a sexual assault (sexual touching without consent) and have this assault result in wounding, maiming, disfiguring or endangering the life of the victim.
An accused person does not have to have intended to wound, maime, disfigure or endanger the life of the victim to be guilty of this offence. However, the there must be the presence of objective foresight that bodily harm would occur as a result of the actions of the accused.
The justice system tends to take these types of crimes even more seriously than regular sexual assaults. Therefore, the consequences and sentences for an aggravated sexual assault are typically more severe than that of a regular sexual assault. There are a few reasons for this. First, this is considered an indictable offence under the criminal code. This means, that this crime is subject to more severe punishment than a summary conviction. If a person is found guilty or pleads guilty to aggravated sexual assault, they could face a minimum of 4, 5 or 7 years imprisonment with a maximum of life imprisonment.
3. Sexual Assault with a Weapon
This offence is committed when a person while committing a sexual assault, either carries, uses or threatens to use a weapon or an imitation of a weapon. This offence is found at section 272 of the Criminal Code. What the court considers to be a weapon is very broad in scope and can be anything from a gun or a knife to a flip-flop or a piece of pizza. If the item is being used as a weapon, while committing a sexual assault, it is very possible that person could be charged with this offence.
Further, even if a person has an imitation weapon, such as a fake gun, that person could still be charged with sexual assault with a weapon. Just because the weapon does not work, does not mean that a person can escape liability. In addition to imitation weapons, it has been found that the use of a sex toy can also be considered sexual assault with a weapon if they toy if the accused person knowingly or recklessly used the object without the consent of the victim where injury was reasonably foreseeable.
Sentencing for this offence varies depending on the facts, however, always carries heavy prison time if the person is guilty of this offence. For example, if the weapon used is a restricted or prohibited firearm and that person commits the offence for the benefit of a criminal organization (ie. a gang, etc.) that person could face a maximum of 14 years in prison and a minimum of five years. In other cases, a person that is guilty of this offence would face a minimum of four (or five years if the victim is under the age of 16).
4. Sexual Assault Causing Bodily Harm
Sexual Assault Causing Bodily Harm is also found under section 272 of the Canadian Criminal Code. A person will have committed this offence if they threaten to cause bodily harm to someone who is not the victim or if they cause bodily harm to the victim.
To be guilty of this offence, the accused person must have caused bodily harm while committing a sexual assault. This means that the person must first make out all of the elements of a sexual assault (ie. sexual touching without consent), to then evaluate whether that person, while committing the sexual assault caused bodily harm. If the person has committed a sexual assault, they may only be guilty of a sexual assault if it can be proved that the accused did not “cause” the bodily harm. Further, the bodily harm that was caused must be objectively foreseeable. This means, that the bodily harm that occurred cannot be so remote that looking at the incident objectively, it could not have been foreseen that the injury would occur as a result of the sexual assault.
If a person is guilty of this offence they will face a maximum of 14 years in prison. This minimum sentence for this offence is four years. However, the minimum sentence is raised to five years if the offence is committed with a restricted weapon and for the benefit of a criminal organization of if the victim is under the age of 16 years.
5. Sexual Interference
The offence of sexual interference is committed when a person, for a sexual purpose, touches a person under the age of 16 years with a part of the body or with an object. This offence covers a wide variety sexual touching and includes anything from touching over the clothing to full intercourse.
To be guilty of this offence the accused person must have touched the victim anywhere on the body with a part of their body or with an object for a sexual purpose. Further, the victim must have been under the age of 16 years at the time the event occurred. This means that if a child was age 12 at the time of the event, but does not report the event until they are over 18 years of age, this would still result in a charge of sexual interference.
However, to be guilty of this offence the accused person must have known that the victim was under 16 or failed to take reasonable steps to ascertain the age of the victim before sexually touching them. Therefore, a person charged with this offence cannot claim ignorance of the victim’s age if they failed to take reasonable steps that would have led them to know the age of the victim.
There are minimum sentences in place if a person is guilty of this offence. If the Crown elects by way of indictment, a person guilty of sexual interference face a minimum of one year in prison and a maximum of 14 years. If the Crown elects by way of summary conviction, a person guilty of this offence will face a minimum of 90 days in prison and a maximum of two years less a day.
6. Sexual Exploitation
The offence of sexual exploitation is similar to the offence of sexual interference, however, the difference is that this offence involves a position of trust or authority. Therefore, for a person to be guilty of sexual exploitation, a person must, for a sexual purpose, touch a young person with their body or an object and also be in a position of trust or authority towards that young person. The purpose of this criminal offence is to protect children given their vulnerability and weakness.
A young person is a person between the ages of 16 and 17 years old. This means that the victim must have been 16 or 17 years old at the time the events of the offence took place, not necessarily at the time of reporting the incident.
A position of trust or authority can be mean that the victim was dependent on the accused person (eg. a parent, grandparent, teacher, a person that provides for them financially or otherwise, etc.). ‘Trust’ should be interpreted as the victim having confidence in or reliance on some quality of the accused person or the reliance on the truth of a statement they have made. A position of trust an authority can also mean the victim was in an exploitative relationship with the accused person.
There are several factors to consider in evaluating whether the accused person was in a position of trust and authority. First is the age difference between the accused and the young person. Second, is the evolution on their relationship. Third, is the status of the accused in relation to the young person (for example, is this person a teacher that the young person had a deep trust in). Fourth is the degree of control, influence or persuasiveness exercised by the accused person over the young person. Finally, the court will evaluate the expectations of the parties affected, including the accused person, the young person and the young person’s parents.
The punishment for a person guilty of sexual exploitation is similar to that of someone guilty of sexual interference. If the Crown elects by way of indictment, a person guilty of sexual exploitation will face a minimum of one year in prison and a maximum of 14 years. If the Crown elects by way of summary conviction, a person guilty of this offence will face a minimum of 90 days in prison and a maximum of two years less a day.
A person will be guilty of the criminal offence of incest if they have sexual intercourse with another person that is of blood relationship them. This includes having sexual intercourse with their parent, child, brother, sister, grandparent or grandchild. The definition of “brother” and “sister” also include half-brothers and half-sisters (ie. siblings that only share the same mother or the same father).
Unlike many of the other charges in the criminal code involving sexual activity, to be guilty of this charge, the accused person and the victim must have had sexual intercourse, not just sexual touching. Sexual intercourse involves complete penetration, to even the slightest degree, of either vagina or anal intercourse. Further, to be guilty of this offence the accused person cannot have been under restrain, duress or fear of the person that the accused person had sexual intercourse with.
The primary purpose of this offence is to prevent genetic mutations that can result from inbreeding. When members of the same blood related relatives reproduce, it can cause genetic abnormalities and health issues for the children that are created as a result of inccest. Further, this offence also has the purpose of protecting vulnerable members of the family that would otherwise be at risk.
The punishment for a person that is guilty of incest is a maximum of 14 years in prison. This offences does not carry a minimum sentence. However, ff the victim is under the age of 16 years old, there is a minimum punishment of five years in prison.