Being charged with a sexual assault crime is a serious situation that may lead to lifelong collateral consequences if convicted. Some of these consequences include registration on the National Sex Offender Registry (NSOR), employment restrictions and/or termination, unwanted publicity, travel restrictions, and more.
You may be stressed about what to do after receiving such allegations from law enforcement or an alleged victim. There are some important basics you should understand and some steps you should take to preserve your rights.
Basic Elements of Sexual Assault Crimes
There are three categories of sexual assault crimes in Canada. Each crime has different “levels” depending on certain details related to the incident. Sexual assault crimes can be considered both indictable offences and summary offences. Additionally, there is no statute of limitations for sexual assault claims; this means that a victim can bring forward allegations within any timeframe they choose.
The sexual assault provisions can be found under Sections 271-273 of the Criminal Code of Canada. A brief summary, including potential punishment ranges, are included below of the three categories:
Section 271
This covers any unwanted kissing, touching, intercourse, or any other sexual activity that was done without consent. If the actions violated another person’s “sexual integrity” and they did not provide consent, a person might be convicted of sexual assault. The consequences of violating this section, depending on the age of the victim, are as follows:
- Maximum penalty of 10 years if the victim is over the age of 16, and it is an indictable offence.
- Maximum penalty of 14 years if the victim is under the age of 16, with a minimum punishment of one year in jail if it is an indictable offence.
- Maximum penalty of not more than 18 months if the victim is over the age of 16, for a summary conviction.
- Maximum penalty of not more than two years less a day if the victim is under the age of 16, for a summary conviction, with a minimum punishment of six months imprisonment.
Section 272
This section covers the same previously mentioned elements of sexual assault; however, it incorporates additional elements that cover the usage of a weapon or threat of a weapon to carry out the crime. This section is expansive because it also covers threats made to third parties, such as friends, children, or family members if the victim does not agree to perform the sexual activities under duress.
All offences under Section 272 are considered indictable offences. The punishment will vary depending on different circumstances of the alleged crime. Some of these circumstances involve whether a firearm was used, prior offences, and whether the victim was under the age of 16. Punishment can range from a minimum term of imprisonment for five years to a maximum of life imprisonment depending on the details.
Section 273
This section covers aggravated sexual assault, which means that if the victim was wounded, maimed, disfigured, or if their life was in danger, the suspect will be charged with this crime. All aggravated sexual assaults are indictable offences.
The punishment for violating Section 273 vary depending on numerous circumstances such as whether a firearm was used, whether the victim was under age 16, prior offences, and association with criminal organizations. Punishment can range from minimum imprisonment of five years to a maximum of life imprisonment depending on the details.
Should You Hire a Lawyer?
Yes. Both a sexual assault allegation and conviction are events that will significantly impact your life. There is a societal stigma against sexual assault, and hiring a lawyer to prove your innocence, preserve your rights, and mitigate any punishment is a wise decision.
Navigating the criminal justice system is best left to an experienced lawyer who has represented clients with criminal charges in the past. A lawyer will know how to obtain discovery materials, speak to witnesses, develop a strategy, and negotiate with prosecutors.
Common Defenses Against Sexual Assault Allegations
There are multiple strategies a lawyer may use to prove a client’s innocence. To develop these strategies, the lawyer will need to interview the client in a confidential setting and review the evidence that law enforcement has gathered.
One common strategy is known as “actual innocence.” In other words, the strategy is meant to show to the court that the accused has an alibi and did not commit the crime in any way. This strategy could stem from a case of mistaken identity or a former spouse/partner falsifying charges as retribution.
Another strategy involves proving that consent was indeed given between both parties. This is typically useful in cases between two adults in which the core contention involves consent vs. non-consent. Evidence can be gathered through sources such as text messages, voicemails, social media messages, and witnesses. It is important to note that depending on the age of the alleged victim, this may not be an applicable defence.
What are the Legal Differences Between “Consensual Intercourse” and “Non-Consensual Intercourse”?
The Canadian criminal code contains the legal language used to define the differences between consensual intercourse vs. non-consensual intercourse. This language is contained in S. 273.1.
Consensual intercourse is defined as a voluntary agreement between parties to engage in sexual activity. The consent must be present when the sexual activity takes place; in other words, it cannot be acquired at a later date or at a time much prior to the sexual activity taking place.
Sexual activity is non-consensual if the alleged victim is unconscious, if consent was granted by a person other than the victim, if the consent was acquired through abusing a position of trust, or if the person is otherwise incapable of providing their consent.
Contact Vilkhov Law
Vilkhov law understands the life-altering reactions caused by being accused of a sexual assault or child pornography crime. Through years of experience, the lawyers at Vilkhov Law have developed sound strategies and tactics to help prove our client’s innocence and mitigate potential punishment. If you’ve received sexual assault charges from law enforcement, contact Vilkhov Law for a consultation to discuss your options.
