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What is Sexual Assault?
Canada has a broad definition of sexual assault. Any unwanted touching, for a sexual purpose, constitutes sexual assault. It does not have to involve force. It is any touching of a sexual nature, without consent. Examples include touching of breasts or buttocks, kissing, fondling, or groping any part of the body. Sexual assault includes intercourse, but also includes many other acts. Any unwanted touching, of a sexual nature, is sexual assault.
Touching “of a sexual nature” is an objective standard, not what the perpetrator states or believes was the intent. Whether or not an act is considered sexual in nature is to be assessed from the standard of what a reasonable person would believe, given the circumstances, was the nature and intent of the act. The perpetrator does not need to gain sexual satisfaction from the touching for it to be considered sexual in nature. If the touching violates the sexual integrity of the victim, it is sexual assault.
Consent to sexual activity cannot be assumed or implied and silence does not equal consent. A person cannot “imply” that they wish to participate in sexual activity by their behaviour, the clothes they are wearing, or a lack of resistance to sexual touching. Consent means voluntary agreement. If a person is touched sexually and does not resist, that does not equal consent.
Only “yes” means yes.
Consent must be ongoing: a person being touched can express they no longer wish to continue to engage in the sexual activity, at any time. Furthermore, a marriage or involvement in an intimate relationship does not remove the obligation to obtain consent to sexual touching. At every instance of sexual touching, there must be voluntary consent.
No consent is obtained where the person being touched is incapable of consenting to the activity.
- Example: if a person is substantially impaired by drugs or alcohol, and is incapable of understanding or perceiving the situation.
No consent is obtained where the person doing the touching abuses a position of trust, power, or authority over the person being touched, and by using that power or authority, induces the other person to agree to the touching.
- Position of Authority Example: a supervisor at work couldn’t threaten to reduce shifts, or offer increased shifts to a worker as an inducement to agree to sexual activity with that supervisor.
- Position of Trust Example: an experienced member of a volunteer organization assisting a new member on an ongoing basis couldn’t threaten to withdraw that assistance in order to obtain consent to sexual activity.
- Position of Power Example: a nurse couldn’t threaten to withhold care from a client in order to obtain consent to sexual activity.
If you have been victimized by sexual assault, we are here to help. You have options. We can provide advice on those options, to help you regain your confidence so that you feel empowered toward healing. Contact us today.
This post was written by Personal Injury Lawyer Alexa Duggan.