Sexual assault is a sexual form of assault. Assault refers to the use of force against someone without that person’s consent.

So sexual assault is the use of force against another person in a sexual context and without that person’s consent. In order for an act to be sexual assault, three elements have to exist:

• use of force against a person;
  
• a sexual context;
  
• lack of consent.

A person is using force against someone as soon as he touches or threatens to touch her. Mere physical contact can therefore be an example of the use of force. The use of force is illegal if it is done without the victim’s consent.

The difference between sexual relations and sexual assault is therefore the consent, or agreement, of every person participating in the sexual activity. In addition, the consent has to be specific to the sexual activity. For example, just because a person allows someone to caress her hair, this doesn’t mean she is agreeing to any other activity.

Finally, keep in mind that the offence of sexual assault replaced the offence of rape (penetration without consent) in 1983. However, the offence of sexual assault includes rape and any other contact of a sexual nature that takes place without a person’s consent.

The sexual character of an assault is determined as a function of the circumstances. During a trial for sexual assault, the judge has to ask himself if a reasonable person, knowing all the facts, would conclude that the accused’s act was sexual in nature.

In order to respond to this question, the judge has to ask if the assault had a sexual aspect to it, taking into account all of the circumstances. One thing that is considered is the part of the body that was touched, even though this is not a determining factor. The words exchanged, the acts involved and the aggressor’s intention are all taken into account to determine whether the assault was sexual in nature.

Since the sexual nature of an act is determined based on the circumstances, the accused’s intention is not always a determining factor. For example, let’s say that Mario grabbed Julie’s breasts without her consent in order to make her angry, and not with a sexual goal in mind. Nevertheless, this act is a sexual assault because touching a woman’s breasts is a sexual act in and of itself.

The reverse is also true: it’s possible for an act not to be sexual assault, even if the victim had the impression that the act was sexual in nature. The victim’s perception of the facts is one of the elements that a judge considers in deciding whether an assault was sexual in nature, but it is not the only element.

For example, Matthew might feel that he was a victim of sexual assault when his teacher played with his hair without his consent. The judge, however, might conclude that there was no offence because the act was not sexual, but rather done in an affectionate manner. Everything will depend on the circumstances surrounding the teacher’s act, and the evidence presented in court.

No. Full sexual relations with a person obviously count as contact of a sexual nature and can therefore be considered as sexual assault in the absence of consent. But this is not the only way of committing a sexual assault. Sexual assault includes a broad range of acts involving force and a sexual aspect, regardless of whether or not there is actual contact with the genitals.

In other words, sexual assault can be committed in many different ways. Rubbing up against someone on the metro can be an example of sexual contact. But the contact doesn’t have to be direct, so an act can still be an offence even if the aggressor only touched the victim using some other object.

It should be highlighted that the gender of the people involved has zero importance in determining whether or not sexual assault occurred. Sexual assault can happen between people of the same sex or between people of the opposite sex.

Yes. The situation is no different if the aggressor and the victim are married, joined in civil union, de facto spouses, or partners for a night. This cannot serve as a defence to charges of sexual assault or allow the accused to avoid criminal proceedings.

Sexual assault that takes place within a relationship is a form of spousal abuse. Every person has the right to refuse sexual contact with her spouse. To find out more, see the Infosheet entitled Spousal abuse and family violence.

Yes. Having sexual contact with an unconscious or a semiconscious person, whether the person is asleep, in a coma, completely drunk or drugged with a “rape drug”, constitutes sexual assault.

Why? Because of the notion of consent. To find out more, see our Infosheet entitled Consent and offences of a sexual nature.

Yes, there are many types of sexual assault. First of all, simple sexual assault covers anything from a touch to full sexual relations. In short, this includes any act of a sexual nature that takes place without a person’s consent.

Next, there is sexual assault with a weapon or sexual assault causing bodily harm. These are sexual assaults committed in the following circumstances:

• the aggressor uses, carries or threatens to use a weapon or an imitation of a weapon;
  
• the aggressor threatens to cause injury to a person other than the victim;
  
• the aggressor causes bodily harm to the victim;
  
• more than one person commit a sexual assault on the same person.

The term “weapon” includes any object that a person can use to kill, hurt, threaten or intimidate another person.

Aggravated sexual assault is yet another form of sexual assault. It requires proof that in the course of the assault, the aggressor wounded, maimed, disfigured or endangered the life of the victim.

If the aggressor intentionally kills his victim during sexual assault, this would be first-degree murder, the most serious form of murder in Canada. Any person convicted of this offence is automatically sentenced to life in prison.

No. A person can’t point to his intoxication or the effect of drugs as a defense against sexual assault charges, even if he didn’t know what he was doing due his level of intoxication.

It should be noted that in 1994, the Supreme Court of Canada ruled that a person could use his intoxication as a defense against sexual assault charges if his consumption of alcohol or drugs left him completely unaware of his actions. However, the effect of this decision was then cancelled by a modification to the Criminal Code. The law now makes it impossible to use the consumption of alcohol or drugs as a defense against assault charges, including those of a sexual nature.

It can happen that a victim insists that a sexual assault took place, while the accused swears that no such thing happened. In a certain era, in cases involving charges of rape (now replaced by the offence of “sexual assault”), the victim’s testimony by itself was not enough to obtain a conviction. In those days, it was necessary to present the court with additional evidence confirming, among other things, the rape and the accused’s identity. In legalese, the victim’s testimony had to be “corroborated”.

These days, this requirement for “corroboration” no longer exists. The victim’s testimony is enough to obtain a conviction, even if the accused insists that he did not commit an offence. In such “he said, she said” cases, it is up to the judge to make a decision only after he has evaluated all of the evidence before him, including the testimonies of both the accused and the victim. The victim’s testimony might be enough to convince the judge – but then again, it might not be. It all depends on the facts and credibility of the people involved.

However, in making his decision, the judge must follow a certain approach. To find out more, see Côtécour, Court of Quebec, Criminal and Penal Division, under the heading “Step-by-step guide to procedure”, in the “Burden of proof” section.

The maximum prison sentence is:

• 10 years for sexual assault;
  
• 14 years for sexual assault with a weapon;
  
• Life imprisonment if while committing the sexual assault, the aggressor puts the victim’s life in danger, grievously wounds, maims or disfigures her.

If the aggressor or one of the people present uses a firearm in the course of the assault, he is looking at a mandatory minimum sentence of 4 years.

In addition, any sentence for sexual offences generally involves a probation order. Such an order might require that the convicted person be supervised by a probation officer. The order might also include an obligation to participate in therapy aimed at controlling or stopping certain sexual behaviour, or a prohibition from contacting the victim.

Other conditions are also possible. Among other things, if the victim of the sexual assault was a child, the judge can impose a number of restrictions on the convicted person’s employment and his comings and goings, in order to prevent any future contact with children.

Finally, when a person is convicted of sexual assault with violence or threat of violence, the judge must prohibit him from possessing any weapons for a period of 10 years.

Yes. “Rape drugs” are drugs like GHB, ketamine or Rohypnol; when taken in a high dose, rape drugs cause the drugged person to lose consciousness and memory. Administering such a drug to a person is, by itself, an offence. Furthermore, in addition to sexual assault, many other offences can be associated with the use of a rape drug.

Therefore, a person who drugs another person without their knowledge can be accused of:

• administering a noxious thing (dangerous substance) to someone with the intention of aggrieving or annoying them;
  
• administering a drug to someone with the intention of facilitating another criminal offence.

A person found guilty of the first offence may be sentenced to 2 years of imprisonment, while a person found guilty of the second offence may be sentenced to life imprisonment. The second offence includes not only administering a rape drug oneself, but also having someone else administer it.

Afterwards, if a person takes advantage of a drugged person’s state of unconsciousness or semi-consciousness to touch or move them, this may constitute assault.

Kidnapping and forcible confinement can also come into play when a person:

• kidnaps someone who is drugged with a rape drug in order to detain them somewhere and use them for sexual purposes;
  
• prevents someone who is drugged with a rape drug from leaving a place.

To find out more about these offences, read our Infosheet entitled Main offences against the person.

Finally, possession of GHB or Rohypnol is a criminal offence, as is the possession of ketamine (except for an authorized doctor or veterinarian). To find out more, read our Infosheet entitled Offences related to certain drugs.