Chapter Twenty-One: Sexual Assault

Chapter Twenty-One: Sexual Assault

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  A sexual assault is an assault violating the sexual integrity of the victim. This aggravating aspect of the assault is assessed objectively.
  
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  R v KBV: The appellant appeals his conviction on a charge of sexual assault for grabbing his three-year old son’s testicles causing bruising and pain.
  
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    R v Chase: for an assault is a sexual assault where “the sexual integrity of the victim is violated.” The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one which may consider the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct. Motive is a factor to be considered, however, it is just one of many factors.
    
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    The SCC found that the sexual integrity of the appellant was violated and the assault was sexual.
    
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    Sopinka (dissenting): the assault was a misguided form of disciple but was not a sexual assault.
    
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  Actus Reus – No Consent: As with assault simpliciter the Crown must prove a lack of consent beyond a reasonable doubt.
  
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  R v JA: One evening, in the course of sexual relations, J.A. choked her until she was unconscious.  At trial, K.D testified that she consented to J.A. choking her, and understood that she might lose consciousness.  When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting a dildo into her anus. J.A. removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse.  When they finished, J.A. cut K.D.’s hands loose. K.D. made a complaint to the police two months later and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred.  She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son.  The trial judge convicted J.A. of sexual assault.  A majority of the Court of Appeal allowed the appeal, set aside the conviction and dismissed the charges against J.A.
  
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    The issue to resolve in this appeal is whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious. 
    
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    Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question.  Parliament’s definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious.  The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. This definition of consent is in harmony with the provisions of the Criminal Code and their underlying policies and is also consistent with the tenor of the jurisprudence of this Court. 
    
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    The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.  The jurisprudence also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred.  It is not sufficient for the accused to have believed the complainant was consenting:  he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question.  This is impossible if the complainant is unconscious.
    
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  R v Audet: The accused, a 22 year old teacher, was charged, under s. 153(1) of the Criminal Code, with touching a young person for a sexual purpose while in a position of trust or authority towards her.  The accused went to a nightclub with a friend and encountered the young person, then 14 years of age, whom he had taught during the school year when she was in Grade 8.  At about two o’clock in the morning, at the suggestion of the accused’s friend, the group went to a cottage.  During the night, the accused and the young person woke up and engaged in oral sex.  In a statement to the authorities that was adduced in evidence at trial, the accused admitted that he had initiated the touching.  At the time of the incident, he had already been informed that his contract of employment had been renewed for the following year and that he would again be teaching students in Grades 7, 8 and 9 at the young person’s school.  The accused was acquitted on the ground that he was not in a position of trust or authority towards the young person at the time of the incident.  The Court of Appeal affirmed the acquittal in a majority decision.
  
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    SCC: The appeal should be allowed.
    
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    Sexual exploitation - CC S. 153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.
    
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    To obtain a conviction under this provision, the Crown must prove beyond a reasonable doubt that the complainant is a young person within the meaning of s. 153(2), that the accused engaged in one of the activities referred to in s. 153(1) and, finally, that at the time the acts in question were committed the accused was in a position of trust or authority towards the young person or the young person was in a relationship of dependency with the accused.  The Crown must also prove that the accused had the mens rea required for each element of the offence. 
    
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    It does not have to prove, however, that the accused actually exploited his or her privileged position with respect to the young person.  To attain its objective in passing s. 153(1), Parliament chose to criminalize the sexual activity itself, regardless of whether it is consensual (s. 150.1(1) of the Code), in so far as it involves a person who is in a position or relationship referred to in s. 153(1) with respect to the young person. 
    
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    In this case, it is clear from the trial judge’s reasons that he assumed the Crown had to prove that the accused had abused or exploited his particular position towards the young person.  The trial judge and, incidentally, the Court of Appeal therefore erred in law in incorrectly assessing the nature of the constituent elements of the offence set forth in s. 153(1).
    
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    Lack of consent is not an element in s. 155 and neither is actual abuse of power.
    
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  R v Litchfield: Respondent, a family physician, was charged with 14 counts of sexual assault involving seven female patients who had attended at his office for medical treatment and diagnosis.  Each had consented to being touched for valid medical reasons in intimate areas of her body.
  
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    Sexual assault is a crime of general intent.  The Crown need not prove a specific intent with respect to the sexual nature of the assault because it forms part of the actus reus.  The test is therefore an objective one.  All the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity.  
    
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    Courts in individual cases should not create unnecessary barriers to considering all the circumstances surrounding conduct alleged to constitute a sexual assault, particularly where the complainant has consented to some touching but not to touching of a sexual nature.  The nature of a complainant's relationship to her alleged assaulter, including the patient's lack of power and knowledge and the doctor's duty to perform medical examinations only for the patient's good, must all figure in a determination of whether the patient in fact consented to the conduct in question.
    
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  R v S(DG): Following a break up, the respondent threatened to share nude photographs with the complainant’s friends and acquaintances unless she had sex with him. She engaged in two acts of vaginal and one act of anal after with the respondent. The respondent was charged with two counts of sexual assault, inter alia, and was acquitted of both sexual assault charges. The main issue on appeal is whether or not the complainant consented to the sexual acts or whether the threats to share the nude photos vitiated consent under s. 273.1(2)(c) ir s. 273.1(3). The accused admitted that he “blackmailed” the C into having sex with him but that the sex was consensual.
  
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    Appeal allowed. Convictions entered.
    
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    The respondents behavior amounted to extortion, although he was not charged with extortion.
    
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    Extortion will vitiate freely given consent.
    
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  R v Faulkner: On Feb. 25, 1994 the appellant and the complainant, who were friends, attended a party at the home of a mutual friend. The complainant was 15 years old and the appellant was 23. The C consumed alcohol, marijuana, and some LSD. She described “going out of it” but not losing consciousness. The C asked the A to take her home. When he offered her cab fare instead she got upset and angry. She decided to wait until the appellant was ready to drive her home. Rather than stop at the C’s house he drove her to an isolated dirt road where they had sexual intercourse. The C gave detailed evidence and admits that she may have given the A the impression that sexual intercourse was consensual. When the C arrived home she was crying and upset. She did not show any signs of intoxication. The trial judge erred by holding that she could not consent to the sexual activity and this matter must be adjudicated further.
  
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    Conviction quashed; new trial ordered.
    
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    There is no defense of implied consent.
    
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  R v Ewanchuk: Ewanchuk brought a 17-year-old woman into his van for a job interview. After the interview Ewanchuk invited the woman to his trailer in behind. He took her into his trailer and began to make a series of advances. Each time she would say "no" to his advance and he would stop but would renew his sexual advances. She testified at trial that during her time in the trailer she was very afraid and thus did not take further action to stop the sexual conduct. Before she left, Ewanchuk paid her $100 and told her not to tell anyone. At trial, Ewanchuk successfully argued that, although the woman had initially said "no" to his sexual touching, because he had continued and she had failed to object further this constituted "implied consent". The acquittal was upheld on appeal with Justice John McClung commenting that "it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines" and that Ewanchuk's conduct was "less criminal than hormonal". The Crown appealed on the issue of an implied consent defence.
  
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    Is there a defence of implied consent available in sexual assault?
    
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    Major, writing for the majority, held that there was no defence of "implied consent" to sexual assault.
    
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    The accused must raise a reasonable doubt that there was consent. Consent can be shown in one of two ways: the "complainant in her mind wanted the sexual touching to take place"; or "the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused".
    
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    L'Heureux-Dubé, in a concurring judgment, held that the defence could not be used unless the accused took sufficient steps to ascertain consent. Here, the accused did not make any attempt to ensure that the accused had consent when he moved from a massage to sexual touching. She also castigated McClung's opinion severely, arguing that it relied on myths and stereotypes about women and sexual assault.
    
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  Fault – Mens Rea: The “sexual” requirement for sexual assault is assessed objectively. Sexual assault, however, is a mens rea offence, so the standard doctrines relating to mens rea apply, subject to statutory modifications, as well.
  
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  In sexual assault cases in particular, it was too easy for the accused to raise a reasonable doubt about a mistaken belief as to consent. Parliament addressed this issue in s 265(4).
  
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  S. 265(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
  
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  The trial judge must determine whether there is an air of reality to the defense before putting it to a jury.
  
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  SS. 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
  
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  R v Malcolm: The accused was charged with sexual assault and admitted the actus reus of the defense but states that his honestly believed the complainant had consented to the sexual activity. The complainant and her common-law husband attended a new years party. The accused was a very good friend of the complainant’s husband. The C and the A exchanged at least one kiss. The C went to bed while the party continued. The A entered C’s bedroom and engaged in sexual activity while she lay with her back to him. When she turned to face him she called the police after realizing he was not her husband. There was no attempt by the accused to hide his identity but she believed him to be her husband.
  
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    The trial judge failed to consider whether there was an air of reality to the defense of honest mistake and failed to put to the jury s. 273.2 to determine if reasonable steps were taken to ascertain consent.
    
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  R v Darrach: The appellant was convicted of sexual assault. He submitted that he had an honest belief that she consented. The major issue on appeal is the constitutionality of the “rape shield” found under s. 276 of the Code.
  

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  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. 
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence
  
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     (a) is of specific instances of sexual activity;
     
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     (b) is relevant to an issue at trial; and
     

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  The subjective mens rea component of the offence remains largely intact. The provision requires that a person about to engage in sexual activity take “reasonable steps... to ascertain that the complainant was consenting.”
  
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  The above mentioned provisions are constitutional. Appeal dismissed.