Toronto Sexual Assault Allegations
Toronto Sexual Assault Lawyer
Adam Weisberg is a Toronto criminal lawyer that defends Toronto sexual assault allegations. Sexual assault allegations are very serious and require a skilled Toronto criminal lawyer to adequately address many of the complex issues that may arise. The following is a brief review for informational purposes. If you or someone you know is charged with a sexual offence you should contact a Toronto sexual assault lawyer to provide proper advice.
Sexual Abuse vs. Sexual Assault
The Criminal Code defines sexual assault. The term sexual assault is broadly defined and can range from allegations of inappropriate sexual touching to vaginal rape. Sexual abuse is not a term defined in the Criminal Code. Psychiatrists, psychologists, therapists and other heal professionals use the term sexual abuse to describe unwanted sexual conduct.
Victim or Complainant
The term complainant is usually preferred over victim when judges or lawyers refer to the accuser. The reason being is that the term complainant preserves the presumption of innocence.
Sexual Exploitation and Sexual Interference
A person under the age of sixteen cannot consent to sexual activity with an adult (there are exceptions for being close in age: A youth of twelve or thirteen can consent to sexual activity with an individual no more than two years older than them. A fourteen or fifteen year-old is able to consent to sexual activity with a partner who is no more than five years older than them). On television, you will often here the situation of an adult with a young person being defined as “statutory rape”. Sexual interference is the legal term used to describe the above situation.
Sexual exploitation refers to sexual activity occurring between a person in a position of power (position of “trust”) over the age of eighteen with a person under the age of eighteen. For more details on sexual exploitation contact Toronto criminal lawyer Adam Weisberg.
Sexual Assault Definition:
Sexual assault can be simply defined as an assault that is committed in circumstances of a “sexual nature” that violate the sexual integrity of the victim.
Is the assault of a "sexual in nature"
The judge or jury will use a common sense approach to consider whether or not an assault is of a sexual nature. An assault is an intentional application of force without the other parties consent. The judge or jury will consider what part of the body was touched, what part of the accused body was used to make contact, the nature of the touch or contact, the nature of the situation,
Determining if the assault alleged to have occurred was of a sexual nature is determined by examining the alleged conduct and circumstances. The Court or Judge will apply a common sense approach and consider which part of the body was being touched, what part of the body the accused used to touch, the nature of the contact, the situation in which it occurred, the gestures or words surrounding the act and all other circumstances and potential motives of the accused.
Definition of Sexual Assault
The Criminal Code of Canada defines sexual assault. The following is not the expansive definition of sexual assault simpliciter.
Sexual assault can be defined as contact or force of a “sexual nature” applied intentionally and occurring without the consent of another person. Sexual assault can also be a threat by act or gesture to apply force of a sexual nature to another person.
Sexual assault also occurs where threats of application of force to the complainant or another person are used to obtain sex. It is also a sexual assault if consent is obtained through fraud or the improper exercise of authority.
The Most Common Toronto Sexual Assault Defences
1. Identity;
2. Sex did not happen;
3. Consent; and
4. An honest but mistaken belief in consent.
Identity
The accused must be properly identified as the perpetrator of the sexual assault. There are examples of cases where witnesses have misidentified the perpetrator and wrongfully convicted an innocent person. Sometimes forensic tools are utilized by the prosecution to establish identity such as DNA analysis.
The Sex Did Not Happen
Commonly a Toronto sexual assault trial becomes a credibility contest between the complainant and the accused. Sometimes, the accused will be in a position where the complainant has fabricated the sexual conduct. It will be important for the Toronto sexual assault lawyer to do background checks and thoroughly interview the client to establish the motive for the complainant’s fabrication.
Was there Consent?
In many Toronto sexual assault trials the central issue becomes whether or not there was consent between the parties. If the parties voluntarily agreed to engage in the sexual activity then it is a defence. The Toronto sexual assault lawyer will have to conduct detailed interviews to determine the motive for the complainant to claim there was no consent.
Consent is not an available defence if: the complainant is too intoxicated to consent; the mental capacity of the complainant makes it impossible to consent; the complainant rescinds consent during the activity; or the complainant is under the age of 16 (see the “close-in-age” exception noted above).
Mistaken Belief in Consent
An accused can also advance that they honestly but mistakenly believed that there was consent with respect to the sexual activity. The accused will have to be able to articulate that they held this reasonable belief based on the complainant’s communication of consent through words or actions.
It is a defence if the accused can demonstrate that he honestly but mistakenly believed that the sexual activity was consensual. An accused cannot rely on self-induced intoxication or being reckless or wilfully blind. The accused must have taken reasonable steps to ascertain that the complainant was consenting.
Disclosure Motions and Prior Sexual Conduct of the Complainant
There are special rules that prevent counsel from asking certain questions about a complainant’s past sexual conduct. An experienced sexual assault lawyer in Toronto will be required to bring the necessary motions to allow such questions.
Often the complainant’s medical records, therapy records, and doctor’s records can provide important background information for an accused in a sexual assault trial in Toronto. A sexual assault lawyer in Toronto will often be able to bring motions to obtain access to these records.
Toronto Sexual Assault Charges?
Toronto criminal lawyer Adam Weisberg can be reached at 416.603.3344 to determine your best defence to these charges.
Call for a consultation:
416.603.3344
Toronto Criminal Lawyer
Adam Weisberg
6 Adelaide Street. E.
Fifth Floor
Toronto, Ontario
M5C 1H6
Telephone: 416.603.3344
FAX: 416.800.8791
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