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DEFENDING AGAINST A SEXUAL ASSAULT CHARGE

Being accused of sexual assault can seem like a nightmare. High profile individuals seem to be tried and convicted in the court of public opinion on an almost daily basis. However, if you are arrested and charged you will still have the benefits of all of the protections that our criminal justice system affords. You are presumed innocent in the eyes of the Court. The prosecutor must prove that you are guilty beyond a reasonable doubt. That can only be done after a full trial in which all witnesses called by the prosecutor are cross-examined and the defence has an opportunity to call any witnesses that it wants.

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed a specific act and had the necessary mental state. The act part of sexual assault is unwanted sexual touching. The mental aspect is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

The act of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The absence of consent is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred .

There are three main types of defences that typically arise in sexual assault cases:

1) That the sexual activity never took place;

2) That the complainant consented to the sexual activity; or

3)That the accused honestly believed that the complainant consented.

A lawyer experienced with these kinds of cases will be able to review all of the evidence with you, get your side of the story and determine which defence to mount and how to do it.

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DEFENDING AGAINST A SEXUAL ASSAULT CHARGE | Bayne Sellar Ertel Carter