Sexual Assault and Incest


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic will discuss the various forms of sexual assault and incest under the Criminal Code of Canada.

 

Sexual Assault in the Criminal Code of Canada 

Acts of a sexual nature, which are committed without the consent of everyone involved, are crimes of sexual assault.

There is no definition in the Criminal Code of a sexual act. Therefore, to determine whether an act is sexual, a judge will consider the following:

  • Any part of the victim’s body that was touched;
  • The nature of the contact;
  • The situation in which the contact occurred;
  • Any words or gestures that accommodated the act; and
  • All other surrounding circumstances.

Sexual assault can occur with or without contact with the genital organs. Sexual assault can occur with or without penetration of the genital organs. For example, anal intercourse, oral intercourse, groping, and kissing are also considered sexual assault if done without the consent of everyone involved.

Husbands and wives who force sexual acts upon their spouses may be charged with sexual assault, regardless of whether they are living together.

Consent

Consent means giving permission for something to happen or agreement to do something. Determining whether both parties consented to the sexual acts is an issue in many sexual assault cases.

The following are situations where one party’s consent is not valid:

  • Consent is not valid where someone uses a position of authority, trickery, or fraud to get the victim to participate in a sexual act. For example, when a teacher, parent, or guardian uses their power and influence to engage in sexual activity with a child or other vulnerable individual, they could be convicted of sexual assault even if the activity was not forced. Similarly, if a person in a position of authority in a workplace uses their position to obtain consent for sexual activity, they can be convicted of sexual assault.
  • Consent is not valid where a victim consents because they were forced to, or where the victim (or someone else) is being threatened. For example, if a woman consents to being sexually assaulted because her husband is threatening to hurt their child, the consent is not valid.
  • Consent is not valid where the victim is not mentally capable of consenting to the activity. This includes where a victim is unconscious, extremely intoxicated, mentally impaired, or vulnerable due to age (both young and old).
  • Consent is not valid if it is given by a person other than the victim. A spouse or parent cannot give consent for someone to have sexual contact.
  • Consent is not valid if a person chooses to withdraw their consent and no longer participate in the sexual activity. Even if a person initially consented to sexual activity, consent can be withdrawn at any time before or during the activity. Consent ends when one person indicates that they don’t want to continue to engage in the activity, either through words or actions.

Mistake in Consent

If a person is charged with sexual assault, they can raise a defence that they believed that the victim consented to the sexual conduct. If this defence is raised, the Court must be convinced that the accused’s belief was honestly and reasonably held. An accused person must have taken reasonable steps to ensure that the victim was giving valid consent.

This defence is not available in cases where a child or vulnerable person has been sexually assaulted.  Importantly, an accused cannot rely on being intoxicated to claim that they thought the victim consented to the sexual act.

Time Limit for Sexual Assault Complaints

There is no limit on the amount of time that may pass between when a sexual assault occurs and when a person can be charged. Complaints alleging sexual assault can be made many years after an event occurred.

 

Other Forms of Sexual Assault

Various forms of sexual assault can include:

  • Sexual assault with a weapon, (note that it is considered sexual assault with a weapon if the offender is carrying a weapon or is threatening to use a weapon or something that looks like a weapon at the time of the sexual assault);
  • Sexual assault where a third party is being threatened; and
  • Sexual assault causing bodily harm to the victim.

If convicted of any of these types of sexual assault, the offender could be sentenced to a maximum of 14 years in prison.

Penalties for Simple Sexual Assault

The penalty for sexual assault varies depending on the seriousness of the assault.

  • For a simple sexual assault, the charge can be either a summary conviction offence or an indictable offence:
  • For a summary conviction sexual assault, the offender may be sentenced to a maximum of 18 months in prison.
  • For the indictable form of sexual assault, the offender could be sentenced to a maximum of 10 years in prison.
  • If the victim was under the age of 16 at the time of the sexual assault:
    • For a summary conviction sexual assault, the offender could be sentenced to prison for a minimum of 6 months and maximum of nearly 2 years
    • For an indictable sexual assault, the offender could be sentenced to a minimum of 1 year and a maximum of 14 years.

Aggravated Sexual Assault

The most serious type of sexual assault is known as aggravated sexual assault. This type of sexual assault is committed when an offender wounds, maims, disfigures, or endangers the life of the victim while committing the sexual assault.

If convicted of aggravated sexual assault, the offender could be sentenced to a maximum of life in prison.

Mandatory Minimum Sentences for Sexual Assault

In some cases, if an offender is found guilty of a specific type of sexual assault, mandatory minimum sentence will be imposed if:

  • a firearm was used during a sexual assault, a minimum sentence of 4 years in prison will apply for a first time offense
  • If the offender uses a firearm during sexual assault in a second-time offense, a minimum sentence of 7 years in prison will apply.
  • If the offender uses a firearm, and the sexual assault was somehow related to a criminal organization or a gang, a minimum sentence of 5 years in prison will apply.
  • If the victim was under the age of 16 at the time of the sexual assault, a minimum sentence of 5 years in prison will apply.

Protection of Sexual Assault Victims

Sexual assault complaints are sensitive and may cause embarrassment which prevents victims from coming forward. Victims who accused another person of committing sexual assault are protected by the Criminal Code, and are encouraged to speak to the police.

Protections provided by the Criminal Code include:

  • No victim may be questioned about their sexual activities with persons (other than the incident with the accused);
  • No victim may be questioned about their sexual reputation or sexual character in general.
  • Victims must be given notice of any exceptions to these protections before they are required to testify (speak about them in Court).

 Incest in the Criminal Code of Canada 

Incest occurs when a person has sexual intercourse with a parent, child, brother, sister, grandparent, or grandchild who is related to them by blood. This includes half-siblings.

In order to be convicted of incest, a Crown prosecutor must prove that the offender intentionally had sexual intercourse with a person that they knew was one of the listed blood relatives.

Incest is an indictable offence and could result in a sentence of up to 14 years in prison. If the other person involved in the incest was under the age of 16 at the time of the sexual intercourse, there is a minimum sentence of 5 years in prison.

 

Defence to Incest

If an offender is charged with incest, they can raise a defence. If the offender was under restraint, duress, or was afraid of the person with whom they engaged in intercourse, they may be able to raise a defence to the charge.

If you have been charged with any type of sexual assault, you should seek legal advice immediately.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.