The terms sexual assault and rape are sometimes used interchangeably, but they have different meanings. For starters, while one is a criminal offence in Canada, the other is not.
Rape hasn’t been listed as an offence in Canada’s Criminal Code since 1983, but that doesn’t mean that the act of rape isn’t extremely illegal. It is simply covered under the broader umbrella category of sexual assault, which encompasses everything from unwanted touch to forced penetration (rape) with a weapon.
Removing rape as an offence was intended to help women, many of whom were reticent to come forward after having been raped. The belief was that by including rape with other forms of sexual assault and shifting the focus away from that inflammatory word, women would feel less shame about sharing what had happened to them. So as of 1983, sexual assault and rape are no longer two separate offences; sexual assault is the offence, and rape is one of the most serious acts it encompasses.
Types of Sexual Assault
Sexual assault is further divided into three separate categories—simple sexual assault; sexual assault with a weapon, threats to a third party, or causing bodily harm; and aggravated sexual assault.
The most basic of these three categories is simple sexual assault, which involves force or the threat of force and unwanted sexual touching without the victim’s consent. The threat can be verbal and the touching can be minimal. The punishment for simple sexual assault is a maximum of 18 months for a summary offence and 10 years for an indictable offence. It is also possible for the offender to receive a conditional or absolute discharge in a case involving low-level sexual assault charges.
Another factor to consider is that even a summary conviction of sexual assault will lead to inclusion on the National Sex Offender Registry. If the conviction is an indictment, the individual will remain on the Registry for 20 years, and in the case of a summary conviction, 10 years.
The next two categories of sexual assault—with a weapon, threats to a third party, or causing bodily harm; and aggravated sexual assault—carry stiffer penalties. Depending on the circumstances of the case, rape would fall under one of these two categories.
Rape
Rape is generally defined as sexual penetration by force. Therefore, it is not only included under the umbrella of sexual assault but is considered to be one of the most extreme types of sexual assault. Rape can occur between a man and woman, a man and man, or a woman and woman. And although it is significantly more common for a man to rape a woman, a woman can also rape a man. Furthermore, a husband can rape his wife, and vice versa; the draconian law that previously allowed spousal sex to occur without consent disappeared decades ago. Spousal rape is a serious crime with harsh punishments.
Statutory Rape
There is another category of rape known as statutory rape, which involves sexual contact with someone under the age of consent, even if the victim gave their consent. For example, if 14-year-old consent to having sex with a 22-year-old, the act is still illegal and may be charged as statutory rape.
There are, however, some exceptions to this law, based on the closeness of age between the offender and the victim. In Canada, there are two “close in age exemptions.” Children ages 12 and 13 can consent to sexual relations with someone less than two years older, and children ages 14 and 15 can consent when the person is less than five years older. So, a 13-year-old can consent to sex with a 14-year-old, and a 15-year-old can consent to sex with a 19-year-old.
And although the age of consent is technically 16, that age can be raised to 18 in certain situations, including when the older party holds a position of authority or trust over the younger party. An example would be a 30-year-old coach having sex with a 17-year-old player.
The Difference in Punishment for Rape and Sexual Assault in Canada
Depending on the type of sexual assault you are charged with, the penalties can range from an absolute discharge (no conviction) to up to 14 years in jail, inclusion on the sex offender registry, and a permanent criminal record. In some cases, your conviction may carry a mandatory minimum jail sentence. For example, if the assault involved a victim under the age of 16, there is a mandatory minimum of one year in jail.
Generally speaking, simple sexual assault will land you in jail for between 18 months and 10 years. Aggravated sexual assault, which occurs when a weapon is used or the victim is seriously injured, carries stiffer penalties and a minimum jail sentence of four years. Rape often falls under this category.
How To Win a Sexual Assault Case
Sexual assault charges are a very serious matter. If you are facing these charges, it is essential to seek immediate legal counsel from a professional sexual lawyer with extensive experience in sex crimes.
When it comes to sexual assault cases, the primary goal is to create a reasonable doubt about the charges against you. At Vilkhov Law, we will thoroughly investigate the situation to look for weaknesses in the prosecution’s case, such as inconsistencies, and position you for the most favourable outcome possible. If there is a reasonable doubt that the person accusing you of sexual assault is credible, or that there existed a mistaken belief of consent, we may be able to get your charges reduced, or dismissed entirely.
The Crown Attorney has the burden of proof, and without adequate evidence, the court may not be satisfied beyond a reasonable doubt that you committed the crime in question. Even if you are found to be guilty of the charges against you, there is a possibility of obtaining a conditional or absolute discharge, which would keep you out of jail and prevent you from being listed on the National Sex Offender Registry.
Contact Vilkhov Law Today
If you have been charged with sexual assault, the legal team at Vilkhov Law can help. Whether your charges are for a low-level offence of simple sexual assault or aggravated sexual assault involving a weapon or child pornography charges, it is critical to obtain legal counsel immediately. A conviction for any type of sex crime will require you to be listed on the National Sex Offender Registry, and can negatively impact your ability to get housing, a job, or even a loan for years, decades, or a lifetime. Don’t go through this difficult process alone. Contact Vilkhov Law today for a free and confidential consultation about your sexual assault case.
