Wife Abuse and the Law
What is Sexual Assault?
Sexual Assault is defined as an assault of a sexual nature that violates the sexual integrity of the victim. The Supreme Court of Canada held that the act of sexual assault does not depend solely on contact with any specific part of the human anatomy but rather the act of a sexual nature that violates the sexual integrity of the victim. When investigating a sexual assault, there are certain relevant factors to consider:
- The part of the body touched
- The nature of the contact
- The situation in which the contact occurred
- The words and gestures accompanying the act
- All other circumstances surrounding the act
- Any threats that may or may not be accompanied by force
The victim of the sexual assault can be man or woman and the attacker can be of the same sex as the victim. A spouse may be charged with sexual assault upon the other spouse.
Everyone who commits a sexual assault is guilty of:
- An indictable offence and is liable to imprisonment for a term not exceeding ten years or
- An offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months
Sexual Assault With a Weapon/Threats to a Third Party/Causing Bodily Harm Section 272
Every person commits an offence who, in committing a sexual assault
- Carries, uses or threatens to use a weapon or an imitation of a weapon
- Threatens to cause bodily harm to a person other than the complainant
- Causes bodily harm to the complainant, or
- Is a party to the offence with any other person
Every person who commits an offence under subsection (1) is
- Guilty of an indictable offence and liable
- Where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years and
- in any other case, to imprisonment for a term not exceeding fourteen years
Aggravated Sexual Assault Section 273
Every one commits an aggravated sexual assault who
- In committing a sexual assault
- Wounds, maims, disfigures or endangers the life of the complainant
Every person who commits an aggravated sexual assault
Is guilty of an indictable offence and liable
- 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
- In any other case, to imprisonment for life
The principles of consent that apply to assault also apply to sexual assault. The victim of sexual touching must freely consent to the act, and must understand the nature of the act being consented to. The courts have applied the definition of consent to mean that a person cannot consent to having serious bodily harm done to himself or herself (R. v. Jobidon (1991, S.C.C.)).
Consent means the voluntary agreement of the complainant to engage in the sexual activity in question.
No consent is obtained when:
- The agreement is expressed by the words or conduct of another person other than the victim (complainant)
- The complainant is incapable of consenting to the activity
- The accused (by abusing a position of trust, power or authority) induces the complainant to engage in the act
- The complainant expresses by words or conduct a lack of agreement to engage in the act or
- The complainant, having consented to engage in the sexual activity, expresses (by words or conduct) a lack of agreement to continue to engage in the activity
A person who is under the age of sixteen cannot consent to sexual activity with another person who is five or more years old than them. A person who is under the age of fourteen years cannot consent to sexual activity with another person who is two or more years old than them. In any case, a person in authority cannot use consent as a defence of having sexual activity with a person under the age of sixteen.
Reducing Your Risk
Sexual assaults can happen when people are frequenting bars and night clubs or even just on a date. Below you will find warning signs and advice on reducing the risk of assault.
You should be especially alert if the person you are with:
- Ignores, interrupts, or makes fun of you
- Sits or stands too close to you or stares at you
- Has a reputation for being a “player”
- Drinks too much or uses drugs; tries to get you to use drugs or alcohol
- Tries to touch or kiss you or gets into your “personal space” when you barely know him or her
- Wants to be alone with you before getting to know you, or pressures you to be alone together
- Does what he or she wants without asking what you want
- Gets angry or sulks if he or she doesn’t get what he or she wants
- Pressures you to have sex, or tries to make you feel guilty for saying “no.”
- Behaves as if the two of you are more intimate than you really are.
- Behaves in a way that is unusual or excessively friendly in an attempt to manipulate or control you.
- Gives too many details about themselves that most people would not volunteer.
- Spends a lot of money on you and appears to be expecting something in return.
- Suggests that you do not trust him or her. Again, this is a form of manipulation.
- Doesn’t accept No for an answer. If they do not accept No for an answer on something small, such as drinking alcohol, they may not in regard to sex either.
To reduce the risk of drug-assisted sexual assault:
- Plan your or night out, arranging your journey to and from home.
- Make sure someone knows where you are going and what time you will be home.
- When going to a pub, club, or party avoid going alone. Friends can watch out for one another.
- Appoint a nominated drink watcher (your non-drinking driver?).
- Alcohol is the most common rape drug, does affect your actions and reactions, as well as your ability to be alert to changing situations. Take care and monitor how much you drink. Stay aware of what is going on around you and stay away from situations you do not feel comfortable with.
- Never accept a drink from anyone you do not completely trust.
- Do not share or exchange drinks.
- Don’t leave your drink unattended, even when going to the bathroom.
- Drugs can be put in soft drinks, tea, coffee, and hot chocolate, as well as alcohol. There are a number of drugs that can be used to incapacitate you; the majority will not be easily detectable in a drink.
- Drinking from a bottle and keeping your thumb over the top is a good idea. Just remember that if you leave it unattended you may not be able to see if anything has been put in it.
- If you return to your drink and it has been moved, looks different, appears to have been topped-off, or tastes strange, don’t take a chance.
- Do not leave the pub, club or party with someone you have just met. Always have a safe ride home with some you know you can completely trust.
- If you begin to feel really drunk after only a drink or two, seek help from a trusted friend, or a member of the club or pub management. It is important to get to a place of safety as soon as possible. You must be sure you have absolute trust in the person you are asking for help, no matter how long you have known them.
- This can happen to men as well as women and they have the same counselling and legal rights as women do.