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Pressing charges, Consent, Rape Shield, Evidence and Sentencing

When victims choose to report a crime to the police, this is often referred to as "pressing charges". In reality, victims or alleged victims do not make the decision to charge an individual, it is the decision of the investigating officer to lay charges. Later, the Provincial Crown Prosecutor decides whether or not to prosecute those charges. The Prosecutor should withdraw the charges where there is no reasonable prospect of a conviction. The victim is merely a witness to the crime itself, who, in most cases will be asked to testify at trial under oath with respect to what they have observed.

Generally, prosecutors are reluctant to force victims to testify against their will, however they do have the power to force your testimony and will do so if they feel it is in the public interest.

Sexual Assault in Canada's Criminal Code

Canada's Criminal Code does not use the term "rape". Instead, it defines assault and provides for a specific punishment for "sexual assault". In defining "assault", the Code includes physical contact and threats. The provision reads:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

The definition 'appears' to include threats of sexual assault as a sexual assault itself. This suggests a person could be convicted of sexual assault without physically touching the victim if they make a threat of sexual assault (for instance, "I'm going to rape you").

Other specific sexual offences codified in the Criminal Code include: sexual exploitation, invitation for sexual touching, child pornography, voyeurism, etc. An individual charged with sexual assault could be convicted of additional sexual crimes as well depending on the circumstances.

Consent

Consent is the critical issue in many sexual assault crimes. This is a question of fact and law that will be determined by the trier of fact in court. The code specifies the following instances which do not constitute consent:

266 (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

Consent becomes more complicated when alcohol and drugs are involved and it becomes a question of capacity to consent on the part of the alleged victim. Again, the court will look at all of the evidence and circumstances surrounding the allegation to decide.

Another issue is whether the accused reasonably believed that the victim consented to the sexual act. The Court must consider the "reasonable grounds for the accused's belief" (see s. 266 (4)). The analysis is very subjective and there is not much more guidance.

The issue of consent will be based on the testimony of the accuser and (usually) the testimony of the accused and because often there are no witnesses to the alleged act itself, the Court will have to assess who is the more credible/believable witness.

Sentencing

If convicted, the next stage of a criminal charge is the sentencing. Sentencing depends on the severity of the circumstances and whether the accused has a criminal history, as well as how that history relates to the crime and how dated it is. The Crown Prosecutor decides whether to proceed summarily or by indictment. Summary conviction is a less serious route and will carry a lesser punishment than an indictable conviction. The Code specifies the possible sentences for sexual assault as follows:

271. (1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

These are the maximums for both summary and indictable prosecutions but no minimums. The Courts determine the minimum or reasonable sentence based on similar cases. The maximums are reserved for the most serious offending circumstances. A free online database of published cases can be found at: www.Canlii.org

However, in most cases you will want to obtain professional legal advice for sentencing and ideally a lawyer to represent your case to the Court.

Please note, in circumstances of aggravated sexual assault a stricter penalty is possible.

Aggravated Sexual Assault

The Criminal Code also allows for increased penalties for sexual assault where the accused "wounds, maims, disfigures or endangers the life of the complainant", see:

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

 (2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Note that where a gun is used, a conviction will result in an automatic sentence of at least 4 years.

Evidence in Sexual Assault Trials

Testimony

In most sexual assault trials, the evidence presented largely consists of witness testimony. This generally includes the victim, the accused, and any other potential participants or witnesses. Unlike the victim, the accused has a right not to take the stand and testify pursuant the Canadian Charter of Rights and Freedoms.

If there is physical/medical evidence (trauma, collection of bodily fluids, etc.) expert witnesses may also be called to testify in regards to this evidence.

Physical Evidence

Bodily fluids and other DNA producing evidence may be used to prove the identity of the accused. Further, physical evidence may be used to prove a sexual act took place. Where both the victim and the accused agree that sexual acts took place, and only dispute whether there was consent, proving that a sexual act took place is less important.

Video and Photographic Evidence

The use of this evidence is rare, but becoming more common. There have been cases built on video taken by the accused (generally on unconscious victims).

Rape Shield

At one time the sexual history of a victim could be extensively brought up and elaborated on at preliminary inquiries and trials. This was used mainly as an intimidation tactic to discourage victims from wanting to testify. It was also used to suggest that since a victim had a "promiscuous" past, or had consented to sex with the accused before, that she was more likely to have consented during the time in question.

Parliament reacted to this by changing the criminal code to forbid testimony of prior sexual activity except under very specific circumstances. This change to the criminal code is what is commonly referred to as the "rape shield" law. The actual provision of the Criminal Code reads:

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief

The Code also contains a narrow exception to this rule. Evidence of prior sexual behaviour may be allowed if it meets three key criteria:

(a) is of specific instances of sexual activity;

(b) is relevant to an is sue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Example of evidence of a prior sexual act that meets the above exception:

The Crown enters evidence of vaginal tearing to prove that forced intercourse took place. The defence is then allowed to enter evidence of prior specific sexual act that could also have caused the vaginal tearing (such as having sex the night before of the alleged rape).

Here the evidence isn't being introduced to show a propensity to consent, but rather to disprove a specific piece of physical evidence. Before any exception to the rape shield law can be entered into evidence, the party looking for the exception must apply to and receive permission from the Judge.

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