Sexual offenCes, Sexual Assault
One of the most serious – and fearsome – allegations that anyone can face is sexual assault. Sexual assault takes place anytime a person (the accused) intentionally touches another person in a way that violates his or her “sexual integrity.” It is not necessary that the accused person did so for a sexual purpose – for instance to obtain sexual gratification.
There are common defences, usually divided into two broad categories, depending on whether the accused admits that something sexual happened or not. When he or she does, then there may be evidence that the other person either consented to the sexual activity, or that the accused person honestly believed that the other person had consented. The defence of mistake is often a very important one.
Sexual offences become more complicated where the charges involve a person under the age of 18. In many cases, particularly those with a large gap in age between the accused and the young person, or where the young person is quite young, consent is no longer a defence. This is because Parliament has recognized that children do not have the same capacity to think through and make important decisions about how to use their bodies. The defence of “honest but mistaken belief” (described in the paragraph above) is also more difficult to advance, as the Criminal Code has imposed a “due diligence” defence in any case where the argument is raised.
Because of all of this, sexual assault cases are rarely straightforward. Even the ones that do not involve forensic evidence (like DNA), the defences can be technical and the cross-examination very demanding of a particular skill set.
On top of the deep and devastating stigma that comes with being branded not just an “offender”, but a “sex offender”, are the requirements in the Criminal Code that mandate that most sex offenders be registered on a national Sex Offenders Registry, which can have long-lasting and very profound effects on a person’s life. Experienced and steady legal advice is critical to defending and protecting a person’s rights at each and every stage of this potentially life-altering experience.