Sexual Assault Lawyers Victoria

Sexual Assault covers a wide variety of conduct and is one of the most litigated offences in criminal law. It can include something as simple as an unwanted hug, kiss, or grope, to much more serious conduct, like intercourse. Some of the core issues in proving this offence involve whether the contact occurred for a sexual purpose, or with a sexual body part. But by far, the most common controversy surrounds the issue of consent.

The type of sexual offence charged depends on many factors, including the age of the victim, the extent of sexual contact, and the number of incidents.

Penalties become increasingly severe as the circumstances of the offence become more violent or have more significant consequences.

Other sexual offences include the following:

• Sexual assault with a weapon,
• Sexual assault causing bodily harm,
• Overcoming resistance by choking, strangling, or suffocating,
• Sexual interference,
• Invitation to sexual touching,
• Incest,
• Sexual exploitation,
• Aggravated sexual assault, and
• Distribution of intimate images.

Sexual assault is not uncommon in British Columbia. According to Statistics Canada, 7% of victims of police-reported crime in 2016 were victims of sexual assault.

The relevant provision for sexual assault in the Criminal Code of Canada is:

This offence has often been described as a “gender-based” offence, and in the recent “me too” era, there has been a mounting social movement to believe the complainant. For these, and many other reasons, sexual assault allegations have become some of the most stigmatizing offences we defend, and it can often feel like you are presumed guilty in the court of public opinion.

The mere threat of sexual assault charges can ruin a career, a family, or reputation. When people hear “sexual assault” they often think of a sexual predator. But in reality, sexual assault allegations affect a wide cross-section of the population. These allegations can arise from every day interactions between people who are respected, well adjusted, and well-liked.

Some of the most common situations where sexual assault charges can arise include:

• Contact of a sexual nature on a date
• Contact of a sexual nature during a work function
• Contact of a sexual nature during a party (often involving drinking)
• Contact of a sexual organ during a medical treatment
• Contact of a sexual nature between kids at school

Even sexual activity between dating or married couples can become the subject matter of a sexual assault allegation upon dissolution of the relationship.

Penalties for Sexual Assault Charges in Victoria

The penalties for sexual assault offences can be devastating. Sentences for sexual assault, particularly if it includes oral sex or any penetration, include significant jail sentences that are often several years in length. Punishments vary depending on the individual circumstances of the offender, and the severity of the offence.

Sexual assault is a hybrid offence, which means that the Crown can elect to proceed by way of indictment or by summary conviction. This decision is made based on the circumstances of your case and will impact the severity of punishment that you are handed. Indictment is the more severe of the two.

For a common sexual assault conviction, you can expect:

• Indictment: Up to 10 years’ imprisonment or, if the complainant is under the age of 16, a minimum sentence of 1-year imprisonment and a maximum of 14 years;

• Summary: Up to 18 months’ imprisonment or, if the complainant is under the age of 16, a minimum sentence of six months and/or a $5,000 fine and a maximum of two years’ less a day.

Beyond any immediate jail and/or probation sentence you receive, you will also be ordered to register with the National Sex Offender Registry in accordance with the National Sexual Offender Information Registry Act (SOIRA).

As a registered sex offender, you will have to provide the police personal information including

• Where you live,
• What you drive, and
• What you do for work.

You will also be obligated to inform the police any time you

• Change your address or place of residence,
• Change employment or volunteer positions, or
• Travel internationally for more than 7 days.

A conviction for one sexual assault offence will result in a mandatory minimum 10-year SOIRA order, which can have significant and overwhelming consequences on your future.

Following a conviction for sexual assault, you may have trouble securing employment in the field of your choice. This is especially the case for roles that require interacting with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can also hinder immigration and travel, and can cause child custody issues.

Therefore, even if you intend on accepting responsibility for this type of offence, it is critical to explore your options and consider all the possible penalties.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences of a criminal conviction for sexual assault. Even if the deck is stacked against you, we can canvass a range of sentencing options with the Prosecutors to give you the best result possible.

Defending Sexual Assault Charges in Victoria

What are the best defences to sexual assault charges in Victoria?

With sexual assault charges, the defences that may be available to you depend on the facts of your case.

In general, the best defences are:

• Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, applying force to the complainant without consent, or other basic elements of the offence. This could include:
  • Identity: In some circumstances you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
• No sexual contact: If you can challenge the mental or physical elements of the sexual assault, then you cannot be convicted. For example, if you did not touch the complainant in a sexual context, you cannot be convicted of sexual assault.
• Consent: If the complainant consented to the sexual touching, you cannot be convicted of sexual assault. It is important to remember that the complainant must have consented to all sexual touching at the time that the touching took place. Consent must be express – it cannot be implied. Consent cannot be granted if it is obtained by force, threats, fear, fraud, or the exercise of authority. It is important to note as well that you cannot consent to the infliction of intentional bodily harm.
• Honest but Mistaken Belief in Consent: If the complainant did not consent to the sexual touching, but you honestly subjectively believed that the complainant was consenting to the sexual contact, you cannot be convicted of sexual assault. This defence is a form of “mistake of fact.” There must be evidence of ambiguity or equivocality which shows that the mistaken belief was not based on willful blindness or recklessness as to the absence of consent.
• Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

While the Crown must prove the elements of the offence beyond a reasonable doubt, you may bear some responsibility in raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can take, depending on the circumstances of your case.

Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in sexual assault cases, as well as presenting any and all available defences to the Court at trial.

How can I help defend sexual assault charges in Victoria?

If you have been charged with sexual assault in Victoria, the following can help your lawyer build a strong defence:

• Provide your lawyer with a statement about what happened;
• Collect and maintain all documents and records about the event;
• Gather a list of witnesses that may support your version of events; and
• Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. If you are uncertain what information is relevant to your case, you should contact one of our lawyers immediately to create a plan of action.

If you are truly proactive about the matter, consider doing the following:

• Secure proof of employment;
• Secure reference letters;
• Enroll in counselling (anger management/substance abuse/parenting);
• Secure a record of prescriptions; and
• Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against sexual assault charges in Victoria?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

• Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
• Gathering evidence from witnesses that support your version of events;
• Identifying mistakes in the actions of the police, such as Charter breaches;
• Uncovering administrative/systemic errors such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
• Finding weaknesses or “holes” in the Crown’s case that may make it difficult or Impossible for them to establish the elements of the offence.

In the case of sexual assault defence, there are numerous other considerations that your lawyer will need to take into account that are unique to this kind of charge. Rest assured, we are up to the challenge.

Further Reading

Below are a few notable cases dealing with various aspects of sexual assault charges:

In R v Ewanchuk, [1999] 1 SCR 330 the Supreme Court of Canada considered the elements of the offence in sexual assault prosecutions. The Court determined that there does not exist a defence of “implied consent” in sexual assault prosecutions, as consent must be demonstrated to have subjectively existed in the mind of the complainant at the time of the sexual touching.

In R v Chase, [1987] 2 S.C.R. 293 the Supreme Court of Canada considered the question of what constitutes sexual touching for the purpose of a sexual assault allegation. The Court determined that the sexual nature of the touching is determined by considering whether objectively, in light of all the circumstances, the sexual context of the assault would be visible to a reasonable observer. The Court noted that it is the context of the touching, not the touching of a specific body part, that determines whether the assault was sexual in nature.

In R v Barton, 2019 SCC 33 the Supreme Court of Canada provided a comprehensive and sweeping treatise on the law of sexual assault in Canada. This case provides the most up to date analysis and guidance with respect to the prosecution and defence of a sexual assault allegation.