The law of sexual assault in Canada.

• Author: Davison, Charles

Perhaps no offence under our laws is as politically charged as sexual assault. And in no other offence situation are the gender lines as clearly drawn: while there are some exceptions, most sexual assault allegations are made by women who say they have been violated by men. Because of the infinite variations of factors which are at play when men and women interact, this crime covers a very wide range of situations. So, ordinarily non-criminal individuals may nonetheless find themselves facing charges.

To properly understand our present laws about sexual assault we should begin with the legal history involved.

For centuries, our laws failed to properly protect women and children from the criminal behaviour of men. Women and children were often considered little more than items of property and this left them vulnerable to many forms of abuse and mistreatment. Until the early 1980s in Canada, it was impossible to convict a man for raping (having intercourse without her consent) a woman on the evidence of the complainant alone. A woman's evidence of rape was considered so inherently unreliable and untrustworthy that the Crown had to offer independent, supporting confirmation in some form before a man could be found guilty of this offence. Children suffered from the same disadvantage: in some situations they were simply not able to testify, and even when they were allowed to give evidence, there virtually always had to be some form of independent support for what they were alleging. These rules had the effect of allowing many perpetrators of horrendous crimes against women and children to go free.

In the 1980s, as a result of a government review (the Badgley Commission) into issues about sexual abuse of women and children and the law, the Criminal Code underwent a significant revision. The old rules were abolished, and the evidence of women and children was placed on a level equal to that of men. For children , there continued to be legal changes over the years in order to receive their evidence with fewer legal hurdles.

The main change in the law was the replacement of the crime of rape (and many other forms of sexual crime) with the broader, all-inclusive concept of "sexual assault". Under the new law, the offence would be treated as a form of assault, and prosecuted in accordance with principles common in this area although, as we will see, there would be additional, special rules applied in particular situations. As part of these changes to the Criminal Code new, special sexual offences in relation to children were also brought into our law. To be clear, sexual assault applies where children are the victims even where some of the other, more specialized provisions of the Criminal Code also apply.

Any crime in Canada involves two basic elements: a wrongful or prohibited act committed by the accused person, and an accompanying intention to commit the offence (sometimes referred to as a "guilty mind"). Under the law of sexual assault--as with any other form of assault--the wrongful physical action is any intentional application of force without the consent of the person being touched. What takes unwanted touching from being an "ordinary" assault to a sexual assault is the sexual element itself. The act of touching may be found to be the basis of a sexual assault if the force was applied for a sexual purpose, or violated the sexual integrity of the person being touched.

The scope of this offence is extremely broad. It covers everything from an unwanted kiss on the cheek or a hand touching another person's buttocks on top of clothing, to the most violent, horrific rape of a stranger, and everything in between. Even the removal of another person's clothing--pulling down...