When a person is charged with sexual assault under section 271 of the Criminal Code, several common questions arise. We try to answer those frequently asked here:
Question: “What is ‘Sexual Assault’ under section 271 of the Criminal Code?”
Sexual assault is any sexual contact with another person without that person’s consent.
You will be guilty of sexual assault if the Crown prosecutor proves the following beyond a reasonable doubt.
You committed an assault of a sexual nature
Section 265(1) of the Criminal Code identifies three types of assault. Sexual assault means that you committed one of these assaults and that the assault had a sexual element.
a) Without the consent of another person, you apply force to that person, directly or indirectly (e.g., you punch a person or throw a rock at them).
Most sexual assaults fall are this type. In these cases, the Crown prosecutor must prove that you touched a person in sexual circumstances without their consent. The touch may be direct or indirect. Examples of indirect touch might include using an object to touch the victim or ejaculating in the vicinity of the victim.
b) You attempt or threaten, by act, or gesture, to apply force to another person and that person has reasonable grounds to believe that you will follow through.
You may be criminally liable for this type of assault if:
i. You make a credible attempt to commit a sexual assault but do not complete your purpose. For example, you pass out drunk before you touch the alleged victim.
ii. You threaten by more than mere words to sexually touch another person.
iii. You threaten by more than mere words to apply non-sexual force to another person if they do not engage in sexual activity with you.
c) While openly carrying a weapon, you accost, impede, or beg another person.
This type of assault is almost always sexual assault with a weapon, which is a separate criminal offence.
You acted intentionally.
You must intend to complete the act. This intention does not require a sexual motivation. For example, as a joke, you touched a person’s genitals without their consent. Your motivation for touching would be irrelevant. It would not matter that you didn’t touch the person for sexual gratification. Intending to touch the person would suffice.
On the other hand, an accidental touch would not be enough. For instance, while falling, you tried to grab anything for balance and accidentally touched a person’s breasts. Here, the non-consensual touching was of a sexual nature. But because you did not intend for it to happen, you did not commit a sexual assault.
You were aware of, wilfully blind to, or reckless to the person’s lack of consent to the sexual act.
Courts determine consent by looking to the alleged victim’s state of mind. Once the Crown prosecutor proves beyond a reasonable doubt that the alleged victim did not consent, the question then turns to your state of mind.
Three states of mind would suffice:
- You knew the alleged victim was not consenting.
- You were wilfully blind to the lack of consent. In other words, you knew that you needed to inquire further but chose not to because you didn’t want to learn the truth. For example, you had sex with an alleged victim who appeared to be very frightened of you. You did not ask any questions to determine whether they were consenting because you did not want them to say no.
- You were reckless, which means you had reason to believe the alleged victim might not have consented but did not take any steps to reduce the risk of a sexual assault. For instance, you had sex with someone and did nothing to obtain consent.
If none of these three states would apply in your case, the defence of honest but mistaken belief might be appropriate. This defence is applicable when the alleged victim did not consent, but you believed they did and took reasonable steps in the circumstances. Case in point, you had sex with a person whose body language suggested they were enthusiastically consenting when, in fact, they were not. You could rely on your honest mistake as a defence to a sexual assault allegation.