Sexual assault cases have the lowest rate of reporting among any crime in Canada, according to numerous studies. Statistics Canada recently reported that only 6% of sexual assaults were reported to police nationally in 2019, and over the past decade, other studies have indicated that at least 90% of sexual assaults in the country go unreported.
The most common reasons cited by women in the report for not reporting the crime included:
- That the offender will not be adequately punished.
- Shame or embarrassment
- A feeling that they will not be believed.
- Fear that reporting the crime will bring disgrace or dishonour to the family.
Given the sensitive nature of sexual assault and the known reluctance of victims to report the crime, police take a gentler approach to examining such cases.
The Process of Establishing Sexual Assault in Canada
While rape is the most obvious form of sexual assault, Canada’s Criminal Code and Canadian Supreme Court rulings define sexual assault as any assault of a sexual nature. The Code does not codify rape as a crime, and does not clearly define what makes an assault “sexual.”
Section 265 of the Criminal Code defines assault as:
- Applying force, directly or indirectly, to another person without their consent.
- Through gestures or acts, threatening or attempting to apply force to another person to the extent to which they believe they are being assaulted.
- Accosting or impeding another person while visibly carrying or wearing a weapon.
Sexual assault is first referenced in the Code in Section 271, which lays out the penalties for committing the offence. These penalties include a maximum 10-year prison term if charged as an indictable offence. However, if the victim is under 16, a minimum sentence of one-year imprisonment applies, and the maximum rises to 14 years.
As a summary conviction offence, 18 months’ imprisonment is generally the highest penalty, unless the victim is under 16 – in this case, the max rises to two years.
Given the lack of a clear definition, it becomes the high court’s responsibility to determine what constitutes as sexual assault under the law. In its decision, Justice defines sexual assault as an assault under the Code’s Section 265 if committed with a sexual or carnal nature that violates the sexual integrity of the victim. To determine this, courts must examine all circumstances of an alleged sexual assault to assess whether a “reasonable observer” would deem the defendant’s actions as having a sexual or sensual context.
Among relevant factors courts should consider, Justice noted the following:
- Body part touched.
- Nature of contact.
- Situation in which it occurred.
- Any words or gestures made by the defendant.
- The apparent purpose of the act, if evident.
- The potential motive of sexual gratification.
The clarity added by Canada’s high court makes it easier for police and the courts to determine what constitutes as sexual assault. While rape and groping are obvious forms of sexual assault, the high court’s ruling clarifies that less apparent forms of sexual assault — such as patting a woman’s buttocks — can also be charged as sexual assault if the circumstances warrant it.
What Is the Role of Police During the Investigation Process?
There is no statute of limitations for sexual assault, which means that victims can report the offence to police no matter how long ago it occurred. With that being said, the passage of time impedes the police’s ability to gather enough supporting evidence to bring charges.
When a victim reports a sexual assault to the police, they have the option to make the report for information purposes only. This gives the victim time to assess whether they want to pursue criminal charges, and does not preclude them from doing so later.
Many police agencies have officers specially trained in assisting sexual assault victims. Along with carefully helping victims recount the details of the assault, these officers may guide them in decision-making and connect them to support services. The Ontario government also offers free independent legal advice to sexual assault victims to advise them of their options for responding to the assault.
If an officer is dispatched to the location of a reported sexual assault that has just occurred, they will assess the physical and emotional condition of the victim to determine whether they need medical care and/or support services. The officer will also collect or otherwise preserve any physical evidence and conduct an initial interview to gather basic information about the incident. If the suspect is in the vicinity and the officer has established probable cause, they will arrest them.
Whether reported at the scene or at a police station, other information investigating officers may seek from the victim includes:
- An in-depth interview to uncover as many incident details as possible.
- Names of the suspect(s) and potential witnesses.
- A statement that may be audio or video recorded.
- Any physical evidence not otherwise secured by police.
- Cell phone and/or social media records, if applicable.
- Contact information of others who may have a connection to the incident.
If warranted by the type of assault—such as rape or other extensive physical contact—the victim can choose to submit physical evidence through a sexual assault evidence kit (SAEK). This evidence is collected by trained medical professionals who secure bodily fluids, blood, DNA, hair, and skin transfers from the assailant.
The SAEK process is voluntary, and can be conducted with police guidance or without police involvement. Most hospitals keep these kits onsite, and will store evidence for up to a year.
How Long Does a Sexual Assault Investigation Take?
As with other criminal investigations, a wide range of variables can affect the timing of a sexual assault investigation.
The timeliness of reporting an assault plays a distinct role, as it’s easier to investigate cases when the evidence is fresh and the victim and potential witnesses have a clear near-term recollection of the incident. In general, sexual assault investigations take anywhere from a couple of months to a couple of years, according to the Toronto Police Victim Services Unit.
Sexual assault cases that do not lead to an arrest due to limited evidence, failure to locate the suspect, or other reasons are never closed. Unresolved cases can always be re-opened if more evidence or information in support of the charges comes to light.
At Vilkhov Law, we understand the importance of taking sexual assault accusations seriously. Reach out to a member of our team to schedule your consultation.
