Always consult with a lawyer before you speak with the police about an allegation of a sexual offence.
Sexual assault
Sexual assault is defined as an assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated.
When is it sexual in nature?
In order to answer that question, the Court looks at the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gesture accompanying the act, and all other circumstances surrounding the conduct, including the motives of the accused person.
what is the age of consent in canada?
The Criminal Code sets out the “age of consent” in Canada at 16 years of age. Once a person turns 16, they are old enough to be able to legally consent to sexual contact with another person.
If a person is 12 or 13 years old, they are legally able to consent to sexual activity with someone who is less than two years older than them, so long as the other person:
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Is not in a position of trust or authority towards them,
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Is not someone with whom they are in a relationship of dependency, and,
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The relationship between the 12 or 13 year-old and the other person is not exploitative of the 12 or 13 year-old.
Similarly, if a person is 14 or 15 years old, they are legally able to consent to sexual contact with someone who is less than five years older than them, so long as the other person:
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Is not in a position of trust or authority towards them,
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Is not someone with whom they are in a relationship of dependency, and,
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The relationship between the 14 or 15 year-old and the other person is not exploitative of the 14 or 15 year-old.
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If a 14 or 15 year-old is married, they are also able to consent to sexual activity with their husband or wife.
If a person is under age 16 and none of these exceptions apply to that person, it is not a defence to a charge of sexual assault that the under-age person agreed to sexual touching or contact with the accused. For example, even if a 15 year-old agreed to have sex with someone aged 21, in law, the 15 year-old’s “consent” is considered invalid, and the 21 year-old would still be guilty of sexual assault.
Consent
This is what most sex assault trials revolve around: WAS THERE CONSENT?
If a person is over the age of consent, the question becomes whether or not the person consented to the sexual contact. Was it consensual between the parties? Consent is a voluntary agreement of the parties to engage in the sexual activity.
Consent does not exist in these conditions:
(a) if the agreement is expressed by the words or conduct of a person who is not the complainant;
(b) the complainant is incapable of consenting to the activity by virtue of the complainant’s mental state at the time (i.e. intoxication, mental illness, etc.);
(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;
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct; OR
(f) The complainant is under the age of 16 (Note: this is subject to the “close-in-age exception,” meaning 14- and 15-year-olds can have sex with someone who is less than five years older.)