It is no news that there have been tons of amendments on sexual assault laws in Canada to prosecute individuals guilty of sexual assaults. Notwithstanding, wrongfully accused individuals can provide a substantial, compelling defence against such related allegations. Such persons have to contact an experienced sexual assault lawyer, who will map out a solid litigation strategy. With situations, such as this, time becomes an essential factor. As such, it is not ideal to wait for too long after a sexual assault complaint. There are no two exact sexual assault allegations. Responses to such an allegation must be well-detailed and fluid, rather than being generic.
Why is the role of a sexual assault lawyer essential in facing looming litigation? This professional is there to provide legal counsel and layout viable options that can exonerate the accused of any allegation on sexual assault. It is worth mentioning that this matter is sensitive as there have been cases of women and men alike suffering traumatizing effects from such vile acts. So, no one accused should take it lightly, especially when there is evidence to prove one’s innocence. A sexual assault lawyer knows the ins and outs of the law revolving around this field. Such an individual can secure evidence-based materials quickly and point out common errors made while handling complaints. That being stated, it is time to look into the aspect of sexual assault.
What is Sexual Assault?
Generally, this term refers to an act that involves touching an individual sexually without the person’s consent or permission. It can range from groping to rape. Depending on the country, other elements may come into play.
Legal Elements to Consider
In Ontario, the most frequently charged form of sexual violence is sexual assault, under s.271 of the Criminal Code. For an individual to be convicted of this crime, the Crown has to prove the following:
- The accused exerted force on the complainant
- The complainant did not consent to the force
- The accused knew that the complainant was not consenting
- The touching was sexual
If any of these elements contain reasonable doubt, by law, the judge or jury has to acquit the accused. But this is not as simple as it seems. Sexual assault laws are complex and deceptive. Each element comes with defined litigation.
The Intentional Application of Force
To secure a conviction, the accused must have applied a force that may not be necessarily violent. What does this mean? direct and indirect contact count if the act is intentional. These may include gentle touch, like groping and rubbing, and the use of an item to make sexual contact. Accidental or involuntary acts are dismissible in this case.
The Lack of Consent
This is the second element the Crown considers when proving a sexual assault conviction. The complainant’s state of mind becomes the focal point here. If the judge or jury believes that the complainant did not “mindfully” consent to the accused use of force, the conviction stays. Otherwise, the case is settled and the accused acquitted. If the complainant “consents” to the act based on malicious interventions, like coercion, threats, abuse of authority, or fraud, the conviction stays, even if the word “consent” was used.
The judge or jury takes into account the entire evidence relating to the complainant’s state of mind before coming up with the final verdict. Once, the judge or jury believes that the complainant did not consent to the act, the next element comes into view.
The knowledge that the Complainant Did Not Grant Consent
There are several sides to the knowledge of non-consent. In the simplest form, this may be an awareness of the complainant not granting consent by speaking up against the act as when committed. It may also imply that the defendant willfully ignored the complainant’s non-consent. Closely related, both scenarios prove that the accused was aware of the risks embedded in the sexual act and that the complainant never provided consent, but went on to execute such an act.
If the defendant honestly, but mistakenly believed that the complainant consented to the act, it becomes a full defence. In countering such an outcome, the complainant has to communicate such content by words or conduct. Ambiguous conduct, passivity, or silence does not connote consent or provide a platform for an honest but mistaken belief in consent. According to the Supreme Court of Canada, the defendant has to take reasonable steps to confirm that the complainant consents to the sexual act. Additionally, if the complainant was under the influence during the act and was unable to freely consent, it is not a defence in the prosecution of the conviction.
Applied Force Being Sexual
The last element to consider is the nature of the applied force. Was it sexual? Or involuntary? What does sexual contact imply? This is a form of touch that violates the complainant’s sexual integrity. But how will a casual observer view this situation? In identifying all the factors to determine the state of this element, the judge or jury looks into the following:
- The part of the body touched
- The relationship between both parties
- The situation of occurrence
- The words or gestures embedded in the sexual act
- And other relevant components
Steps to Take When Hiring A Sexual Assault Lawyer
Defending sexual assault litigation is no walk in the park. It is essential to hire someone who has extensive knowledge and experience in this area to improve one’s chances of winning a case.
Get A Professional Sexual Assault Lawyer
The type of lawyer hired determines if a defendant will walk scot-free or be convicted and charged. Hence, it is essential to hire a professional with a streamlined focus on sex crimes defence. Gather comprehensive information on their past cases and winning rates.
Gather the Right Paperwork and Documentation
It is essential to have all paperwork and documentation available before consulting a sexual assault lawyer. These include:
- Paperwork issued by the arresting officer
- Paperwork provided by the court
- Paperwork regarding one’s bail
- Documents containing related questions on the allegation and other related aspects. There may also be a need to fill a questionnaire provided by the attorney.
Find Out Ways to Assist in Mounting Legal Defence
Of course, a sexual assault lawyer has vast resources and network to create a legal defence. However, the defendant can provide help as well by following instructions that will help turn the case in the right direction. For example, such an individual may avoid coming in contact with the complainant or other persons that are tied to the case.
Request for a Review of Defence
Sexual assault allegations come with several likely defences. However, it is essential to find the right one that provides a solid ground to counter the allegation. For this reason, the attorney must review such defences.
Avoid Taking Action Without A Lawyer
Sex crimes are not one to mess around with, especially when several factors are at stake. A wrong move can destroy tons of evidence built against a case and ruin a defendant’s life. As such, hiring a sexual assault lawyer is a smart move. Avoid communicating directly with prosecutors or law enforcement without the approval of an attorney. Mistakes are bound to happen, but they can be costly.
With these factors in view, winning a sexual assault case becomes highly possible.