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Sexual Assault Defence Lawyer

Sexual Assault Defence Lawyer

There are many types of sexual offences, which reflect the many ways in which people can come into sexual contact with each other. Offences include invitation to sexual touching; sexual exploitation; prostitution; sexual interference, voyeurism, corrupting morals, and child pornography. Sexual offences are considered by the police and the courts to be extremely serious and they attract some of the most severe penalties in the Criminal Code. A person convicted of a sex crime will be required to provide a sample of his DNA to the National DNA Databank, will be registered as a sex offender, and be unable to work, travel or live where he chooses except under strict limitations. This is in addition to a jail term and probation.

Sexual assault cases are complex and are prosecuted by specialized teams of police and Crown attorneys. If you are charged with a sex crime, you should hire a trial lawyer who has the knowledge, experience and track record of success to defend you properly.

What is Sexual Assault?

Sexual assault is a generic phrase that can describe everything from a simple touch to an armed rape. To be proven, the offence requires a touching , of a sexual nature, without the consent of the person touched. The use of force or hostility is not required; however, the assault must take place in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. To determine guilt or innocence, the court will examine all of the circumstances surrounding the act, including the relationship between the parties, the part of the body touched, the words and gestures that accompanied the contact, and the intent and state of mind of the defendant.

The Criminal Code defines sexual assault as follows:

  • 265. (1) Assault- A person commits an assault when
    • (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
    • (b) he 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; or
    • (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
  • (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Most of the law which clarifies what is and what is not sexual assault comes not only from the Criminal Code but from a series of court decisions which discuss and analyze the issues in different contexts.

What Does “Consent” Mean?

Sexual contact between two people who consent to it is not a crime. Things get complicated when one of them later claims that the sex was non-consensual, and therefore criminal. Because sexual activity usually occurs in private, there are no witnesses other than the complainant and the defendant who can say what really happened. These cases are referred to as credibility cases, and there are many special rules that come into play in these situations.

To decide whether a sexual act was consensual or not, in a sexual assault case the court must decide what was in the mind of the complainant at the time of the sexual activity. The complainant must have agreed not only to sexual activity at that particular time, s/he must have agreed to the particular act they are about to engage in. The court will examine all of the circumstances, from the relationship between the parties to their words and actions before, during and after to try to sort out where the truth lies.

At any point, a person can change his or her mind, and if the other person continues to engage in sexual activity, s/he could be found guilty of sexual assault unless s/he took reasonable steps to ascertain whether consent was still present. What is reasonable will be for a court to decide.

If a defendant believed that the sexual activity was consensual, and took reasonable steps to make sure of it, then s/he might have a valid defence of “apprehended” consent. However, it is not enough to say that the complainant didn’t say “no”, or was physically passive. Drunkenness is not a defence.

There are some situations where the court will generally find that there was no consent: for example, where there is an abuse of power or an abuse of trust; where the complainant is under the age of 16 or lacks the mental capacity to consent to sexual activity. Also, one person cannot consent to sex on another person’s behalf, and sex that was obtained as a result of threats, violence or extortion will be found to be non-consensual.

The Criminal Code on Consent

The Criminal Code defines consent and provides examples of lack of consent in sexual assault cases. As with the definition of sexual assault, what constitutes lack of consent is further clarified and analyzed in many important court decisions from all over the country.

  • 273.1 (1) Meaning of “consent” – Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
  • (2) Where no consent obtained- No consent is obtained, for the purposes of sections 271, 272 and 273, where
    • (a) the agreement is expressed by the words or conduct of a person other than the complainant.
    • (b) the complainant is incapable of consenting to the activity.
    • (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.
    • (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity.

  • (3) Subsection (2) not limiting- Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

  • 265 (3) Consent- For the purposes of this section, 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.
    • (b) threats or fear of the application of force to the complainant or to a person other than the complainant.
    • (c) fraud; or
    • (d) the exercise of authority.

Preparing Your Defence in a Sexual Assault Case

Because sexual assault cases are “credibility” cases where often the only people who know what really happened are the complainant and the defendant, they require a lawyer with a great deal of knowledge and experience to defend successfully. There are many rules that apply specifically to sexual assault cases, such as limitations on the types of questions a complainant can be asked; special applications that must be brought for access to forensic evidence such as DNA; motions for disclosure of important documents and other evidence; as well as rules for support people and protective screens and publication bans.

Sexual assault cases are won with preparation. To begin crafting your defence, we will sit down early and often with you to go over all of the details that are important to your case, from how the relationship between you began, to the specifics of the incident in question, to the contact you had afterwards. We will interview witnesses, review the disclosure, conduct an independent review of the evidence, even retain the services of a private investigator if the situation requires it. While the focus of the police and prosecutors is on the moments before and after the sexual activity, we will examine the entire context and background in much greater detail. If the complainant is lying about whether sexual activity occurred, or whether it was consensual, we will want to get to the root of why that person has chosen to lie. Often a complainant is motivated by jealousy or anger. Sometimes s/he suffers from regret after sex and does not wish to admit that it was consensual.

Whatever the reason is, we will assemble the most comprehensive, compelling case possible to ensure that you will not be subjected to the severe penalties that accompany a conviction for sexual assault.

And we have the knowledge, the experience and the track record of success to prove it.

Child Pornography

The making, possession and distribution of child pornography have been re-classified by the government as “zero-tolerance” offences with millions of dollars spent on investigation and enforcement, and the creation of specialized teams of police and prosecutors. Sentences for these offences have been increased significantly, including minimum sentences of a year in prison for a first offence.

It is easy for the government to target these cases, because children are seen to be vulnerable and the people caught in police dragnets are easy targets for hatred and misunderstanding. Most consumers of child pornography do not sell or distribute it; they are merely downloading it for their own use. Just as there is a big difference between a recreational drug user and a commercial-scale trafficker, the person who downloads a few images from the internet is not the same as the professional who exploits children and sells pornography for profit. The problem is that under the current legal regime, the occasional users and the commercial traffickers are considered as one and the same.

Inappropriate images of children are usually downloaded from the internet using file-sharing programs such as LimeWire. These programs require that the content be left on the system for access by others; that is how the system works. People who download for their own use are being labelled as distributors because of the nature of these complex computer programs and not because they have any intention to share or distribute the material, let alone profit from it.

At The Defence Group, we have experience both prosecuting and defending criminal cases successfully, and bring that expertise to defending the case. We know how the science behind these file-sharing programs works; and we know how to challenge the search warrants that police use to investigate and lay charges. These cases are complex and require the specialized resources, from computer experts to counselling services and rehabilitation programs that are required to secure the best possible result in a hostile and unforgiving legal environment.

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