With allegations against high-profile names on both sides of the border dominating news headlines in recent weeks, the crime of sexual assault – as well as the question of what constitutes consent – has come to the forefront of public discourse. This excerpt from the CED Criminal – Offences title outlines the elements of the crime of sexual assault in Canada: actus reus, including the definition and interpretation of the terms “sexual” and “consent”, mens rea, and defence provisions.
Criminal Law – Offences
BY: David B. Deutscher
LXXXII.1(a)(i)-(iv): Sexual Assault
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LXXXII.1(a)(i): Elements of Offence
See Canadian Abridgment: CRM.VI.133.b.i Criminal law | Offences | Sexual assault | General offence | Elements
Everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.1
LXXXII.1.(a).(ii).A: Actus Reus – General
See Canadian Abridgment: CRM.VI.133.b.i Criminal law | Offences | Sexual assault | General offence | Elements
The actus reus of sexual assault consists of unwanted sexual touching. It is established by proof of three elements: touching; the sexual nature of the contact; and the absence of consent.1 The first two elements are objective, and it is sufficient for the Crown to prove that the accused's actions were voluntary. It does not have to prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour.2 The absence of consent is subjective and is determined by the complainant's subjective internal state of mind towards the touching when it occurred.3
LXXXII.1.(a).(ii).B: Actus Reus – “Sexual”
See Canadian Abridgment: CRM.VI.133.b.i.F Criminal law | Offences | Sexual assault | General offence | Elements | Sexual
An assault is "sexual" if it is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. This is an objective, not subjective, test. The question is whether the sexual or carnal context of the assault would be visible to a reasonable observer. Relevant factors include the part of the body touched; the nature of the contact; the situation in which it occurred; the words and gestures accompanying the act; any threats made; the intent or purpose of the assault; the motive, if it was sexual gratification; and all other circumstances surrounding the conduct.1 Evidence that the genitals were involved will normally indicate the violation of the sexual integrity of the victim, even if the purpose was not sexual gratification.2 Where the purpose is sexual gratification, the assault will normally be classified as sexual in nature.3 Each case depends on its circumstances.4
LXXXII.1.(a).(ii).C: Actus Reus – “Consent”
See Canadian Abridgment: CRM.VI.133.b.i.B Criminal law | Offences | Sexual assault | General offence | Elements | Consent
"Consent" for the purposes of the sexual assault provisions means the voluntary agreement of the complainant to engage in the sexual activity in question.1 However, no consent is obtained where (a) the agreement is expressed by the words or conduct of a person other than the complainant;2 (b) the complainant is incapable of consenting to the activity;3 (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;4 (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;5 or (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.6 These provisions are not to be construed as limiting the circumstances in which no consent is obtained. Furthermore, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant;7 (b) threats or fear of the application of force to the complainant or to a person other than the complainant;8 (c) fraud;9 or (d) the exercise of authority.10
The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. An unconscious person cannot satisfy this requirement, even if consent is expressed in advance.11
When examining whether consent in a sexual assault case was vitiated by fraud, it is no longer necessary to consider whether the fraud related to the "nature and quality of the act" or the identity of the partner, although fraud relating to those matters may still vitiate consent. A principled approach is preferable.12
Fraud which may vitiate a partner's consent to engage in sexual intercourse requires the elements of dishonesty and deprivation. The dishonest action or behaviour must relate to obtaining consent to engage in sexual intercourse. The accused's actions must be assessed objectively to determine whether a reasonable person would find them to be dishonest. The dishonesty must result in deprivation, which may consist of actual harm or a risk of harm. The dishonest act, either falsehoods or a failure to disclose, must expose the complainant to a significant risk of serious bodily harm.13 The requirement of "significant risk of serious bodily harm" should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations.14 The significant risk of serious bodily harm is negated by both a low viral load and condom protection.15
True consent cannot be given if the accused has not disclosed his or her HIV-positive status. A consent that is not based on knowledge of the significant relevant factors is not a valid consent. The extent of the duty to disclose increases with the risks attendant upon the act of intercourse, so that a positive duty to disclose exists if the accused is HIV-positive. However, the Crown must still prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if he or she had been advised that the accused was HIV-positive.16
A victim of a sexual assault is not required to offer some minimal word or gesture of objection. A lack of resistance need not be equated with consent.17
There is no defence of implied consent to sexual assault in Canadian law.18
Subject to the following exceptions, consent is not a defence to sexual assault charges where the complainant was under 16 years old at the time of the incident. Where the complainant is 12 or 13 years old, consent can be a defence if the accused is (i) less than two years older than the complainant; and (ii) not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency, and is not in a relationship with the complainant that is exploitative of the complainant. Where the complainant is 14 or 15 years old, consent can be a defence if the accused is (i) less than five years older than the complainant; and (ii) not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency, and is not in a relationship with the complainant that is exploitative of the complainant. Consent can also be a defence if the accused is married to a 14 or 15-year-old complainant.19 An accused cannot raise a mistaken belief in the age of the complainant in order to invoke these defences unless the accused took all reasonable steps to ascertain the age of the complainant.20
LXXXII.1.(a).(iii): Mens Rea
See Canadian Abridgment: CRM.VI.133.b.i.C Criminal law | Offences | Sexual assault | General offence | Elements | Intent
No mental element is specified for this offence.1 The mens rea of sexual assault consists of two elements: the intention to touch the complainant; and knowledge, recklessness or wilful blindness to a lack of consent on the part of the complainant. As with the actus reus of the offence, the absence of consent is an integral part of the mens rea, but now is considered from the perspective of the accused.2 In order to make out the defence of honest but mistaken belief in consent, thus denying the mens rea required to commit sexual assault, the evidence must show that the accused believed that the complainant communicated consent to engage in the sexual activity in question.3 The exculpatory effect of consent in relation to the mens rea of the accused is limited by the common law and by statute.4
This is a crime of general, not specific, intent. The intention of the accused is but one factor to consider in deciding whether the overall conduct has a sexual context.5
LXXXII.1.(a).(iv): Defence Provisions
See Canadian Abridgment: CRM.VI.133.b Criminal law | Offences | Sexual assault | General offence
It is not a defence to a sexual assault related charge that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where the accused's belief arose from the accused's (a) self-induced intoxication; or (b) recklessness or wilful blindness, or where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.1
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