Simply being charged with sexual assault can put a real stranglehold on your life. Many of your community members, and even some friends and family will assume the worst (and that's without an extreme close up of your face on the cover of the Toronto Sun). Even if you are eventually exonerated like Bill Cosby, don't hold your breath for the local newspaper to announce it.
What is Sexual Assault?
First things first – the criminal offence of sexual assault is comprised of four essential elements:
The accused person intentionally touched or implied/attempted/threatened to touch the complainant (alleged victim);
The touching in question was of a sexual nature;
The complainant did not consent to the touching in question; and
the accused knew, was willfully blind or was reckless that the complainant did not consent to the touching in question:
A few important points about the above essential elements: i) the touching in question can be soft or hard, and covers a wide spectrum from grazing to penetration; ii) it does not matter what body part(s) was involved, so long as the reasonable observer would say it was a violation of the complainant's bodily integrity; iii) “consent” means that the complainant communicated by words or conduct his/her approval at the time of the activity; and iv) in some circumstances, the accused will be able to give evidence that he/she mistakenly believed there was consent.
Side note: there are many legal issues that can affect the issue of consent in a particular case. For example, the complainant’s age, mental state, and/or level of intoxication, whether the consent was obtained by fraud or fear of force, and where there is an imbalance of power or position of trust between the accused and complainant. I will not be delving into those factors here.
Once the police charge you with sexual assault it's up to the Crown Attorney to decide where the case goes from there. Without going too far down the rabbit hole, government policy and decisions from the Supreme Court of Canada prioritize encouraging people to report sexual assault by ensuring that their privacy interests are protected. That means things like text messages, medical records, and prior sexual history of the complainant will only become evidence where absolutely necessary. Even where the strength of the case appears thin, the Crown Attorney is going to be fairly conservative in pushing the case towards trial as there will always be a public interest in doing so. Should the assigned Crown Attorney feel inclined to withdraw the charges for whatever reason, that decision must ultimately come from a supervisor. It certainly does happen, but a withdrawal of sexual assault charges is rare.
Assuming you do not qualify for legal aid, the cost for a lawyer to properly defend sexual assault allegations will be high, but not as high as the stakes. If found guilty, you will have to register as a sex offender and will invariably face a jail sentence. For more serious sexual assault allegations, the Crown could pursue lengthier jail terms and possibly a Long Term or Dangerous Offender designation.
If you have been charged with sexual assault in Ontario, you need to speak with a lawyer immediately. As a former senior Crown Attorney I have a wealth of litigation and trial experience in matters of sexual assault. Feel free to contact me for a complimentary consultation.
Editor's note: a child being charged with sexual assault can also be emotionally and financially devastating for a parent. It is a good idea for parents of teenagers and young adults to candidly discuss the issue of sexual assault and consent with their kids, no matter how awkward or uncomfortable it might be. This takes on added importance once alcohol/drugs and partying become part of your child's social life. Trust me when I say the criminal courts are full of otherwise good people who made costly mistakes.
*Of course nothing in this article is intended to ignore or diminish the fact that being the victim of sexual assault can also be a traumatic and life-altering experience for both victims and their families.
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