The offence of assault is widely defined and can capture all kinds of contact that occur in a domestic relationship. It includes any circumstance where a person, without the consent of the other person, applies force intentionally to that person, directly or indirectly. It also includes certain situations where no actual force is applied.
Assault charges can arise out of any number of circumstances, such as an argument with a domestic partner, a dispute with a neighbour, or a fight outside a bar. The offence of assault is widely defined. It includes any circumstance where a person, without the consent of the other person, applies force intentionally to that person, directly or indirectly. It also includes certain situations where no actual force is applied. An assault occurs when a person 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 upon reasonable grounds, that he has, present ability to effect his purpose.
For certain sexual offences against young people, such as sexual interference, it is a defence in some circumstances to be mistaken about their age. In order for this defence to be valid, an accused person must take all reasonable steps to ascertain the age of the complainant. So, what does "all reasonable steps" actually mean? The Supreme Court of Canada provided some guidance in the recent case of R. v. George.
The age of consent for sexual activity in Canada is set out in the Criminal Code. As a general rule, a person cannor consent to sexual activity until they are 16 years old. As a result, if you have sexual relations with someone who is not yet 16 years old it is no defence that he or she consented to the activity. However, there are exceptions.
In a sexual assault case, sometimes the defence is that it didn't happen at all. In other cases, the accused agrees that the sexual activity happened but says that it was consensual. However, these are not the only two defences to a charge of sexual assaults. In some cases, the complainant was not consenting to sex but the accused honestly, but mistakenly, believed that he or she was consenting. If the defence is successful it will lead to an acquittal.
One of the most common defences to an allegation of sexual assault is that the complainant consented to the sexual activity. It must be remembered that you are presumed innocent and the prosecutor must prove that you are guilty beyond a reasonable doubt. This means that in order for there to be a conviction for sexual assault, it must be proven beyond a reasonable doubt that there was no consent.
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.
At one point in time the law seemed clear that consent could not be a defence to an assault charge that aroes out of a fist fight where injury resulted. The courts said there was little value in encouraging post bar brawls by allowing such a defence. But over the last number of years that position has changed. In some cases, even with more serious offences, the defence has been succesful.
Two people meet at a party. The drinks are flowing. They are both buzzing and their inhibitions are lowered. Sex occurs that night but the next morning one of the two says she didn't consent. The police become involved and show up the other person's house to arrest him for sexual assault. He is in disbelief. He thought it was consensual.