In the Canadian Criminal Code, ‘assault’ refers to physical violence or attempts or threats of violence against a person. It includes any unwanted physical contact, especially if it is intended to hurt or intimidate the victim. Physical assault can take the form of hitting, shoving, slapping, beating with fists, or choking. It also includes striking with weapons, such as guns, knives, and axes.
Sexual assault is when somebody touches another person sexually, on purpose, directly or indirectly, without that person’s consent. Sexual assault is not limited to vaginal intercourse: it includes any form of sexual activity done without consent (including kissing, touching, oral sex, and vaginal or anal penetration).
In a situation that involves adults, the major factor in determining whether a sexual assault has occurred is the lack of consent, not the type of sexual activity. This offence becomes more severe if carried out with threats or a weapon, or if it causes serious bodily injuries to the victim – this is called “aggravated sexual assault.” Sexual assault is a crime of power, where the perpetrator is exercising power over the victim. The majority of sexual assaults are perpetrated by men against women.
The age of consent, also known as the "age of protection”, for sexual activity is 16 years. However, the age of consent is 18 years where the sexual activity "exploits" the young person, such as when it involves prostitution, pornography or occurs in a relationship of authority, trust or dependency (e.g., with a teacher, coach or babysitter).
In the Criminal Code of Canada, self-defense is the use of reasonable force to defend oneself against unprovoked assault or to prevent an assault or its repetition, with the intent of stopping the assault. Women who use self-defense against sexual assault and/or relationship violence often employ both physical and verbal tactics. However, a woman does not have to “fight back” or “resist” to show her lack of consent. If she has not voluntarily given consent, she has still been physically or sexually assaulted.
It is a criminal offence to repeatedly follow or communicate with someone, or monitor her actions over a period of time, with the result that she reasonably fears for her safety. (This is not the same as sexual harassment.)
Sexual harassment is often confused with sexual assault; while they are related, they are different. Sexual harassment is any unwanted sexual communication or attention that is offensive, intimidating or humiliating, whether in verbal, written or visual form. Sexual harassment includes unwanted attention, demands, or a pattern of jokes or insults that affect your job, work, school environment or your chances to obtain a service. Sexual harassment falls under Human Rights Law, which is civil legislation, not the Criminal Code of Canada.
In the case of sexual assaults, the Criminal Code states that for consent to be valid, there must be “voluntary agreement “ to engage in the sexual activity in question. Consent is when an individual has affirmatively communicated – in both actions and words – her agreement to engage in a sexual activity. Consent must be continuous, and it can be withdrawn at any time. If the argument is that you believe she consented, there must be evidence that you took reasonable steps to determine this. Consent cannot be used as a defense for any assault if the victim submits or does not resist:
When it comes to sexual assault, the Criminal Code provides some additional situations in which consent is considered to be invalid. Consent will not be a defense where:
CONSENT WHERE DRUGS or ALCOHOL ARE INVOLVED
It is unlikely that someone under the influence of drugs or alcohol will be found capable of giving valid consent. That means that, legally speaking, any sexual activity with somebody under the influence of drugs or alcohol could be considered sexual assault. If the other person is drunk or high, think twice, even if you believe they are consenting.
The fact that you were too intoxicated to determine whether your partner consented is not a legal defense.
CONSENT WHERE THERE IS A SEXUAL ASSAULT CAUSING BODILY HARM
The fact that a person consented is not a valid defense in cases where the sexual assault caused bodily harm.
Violence in an intimate relationship (also called “dating violence” or “domestic violence”) is a pattern of abusive behaviours that work to exert power and control over an intimate partner. This violence can take many forms, including sexual abuse, physical abuse, psychological or emotional abuse, financial abuse, spiritual abuse, and digital abuse (abuse via technology). Intimate relationship violence is not limited to a particular type of relationship; it can take place in marriages, in common-law couples, and between boyfriends and girlfriends.