Paper Presented At Federation of Law Societies National Criminal Law Program St. John’s, Nlfd., July, 2010, Section 0.1
Author: Mark J. Sandler

Introduction

This paper briefly examines the offence of sexual assault. Other papers address sexual interference and related offences (O.2), and common defences to crimes of a sexual nature, namely consent (P.1) and mistaken belief in consent (P.2). 

Section 271 of the Criminal Code provides that every one who commits a sexual assault is guilty of either an indictable offence (punishable by a term of imprisonment not exceeding two years) or a summary conviction offence (punishable by a term of imprisonment not exceeding 18 months).

Elements of the Offence: Particularly the Actus Reus

 The jurisprudence establishes that sexual assault is 

(1) an assault 
(2) which is committed in circumstances of a sexual nature such that the complainant’s sexual integrity is violated.

The Assault 

We look to s. 265 of the Criminal Code to define “assault.” A person commits an assault when 

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

This definition applies not only to sexual assault, but to sexual assault with a weapon, threats to a third party or causing bodily harm, and aggravated sexual assault (ss. 265(2)). 

Most commonly, sexual assault involves the first type of assault, namely the application of force without the consent of the complainant. The application of force need not involve the use of strength or might. An unwanted touching will suffice to constitute an assault.  

Determining Sexual Nature of Assault 

Assuming that the conduct constitutes an assault, it must be determined whether the assault is of a sexual nature. The test to be applied is an objective one, namely whether, in light of all of the circumstances, the sexual or carnal context of the assault is visible to a reasonable observer: R. v. Chase (1987), 37 C.C.C. (3d) 97 (S.C.C.).

An accused may commit a sexual assault even when unmotivated by sexual gratification. The presence or absence of sexual motivation is merely one factor in determining whether the conduct is properly regarded as sexual. So, for example, the grabbing of a young person’s genitals as a disciplinary measure, or of the complainant’s breasts as a purported joke, even absent any intended sexual gratification, may nonetheless be a sexual assault given the resulting violation of the complainant’s sexual integrity: R. v. V. (K.B.), [1993] 2 S.C.R. 857; R. v. Bernier, [1998] 1 S.C.R. 975, 124 C.C.C. (3d) 383.

Other factors used in determining whether the assaultive conduct is sexual are (i) the part of the body touched (where the assault involves a touching or other application of force), (ii) the nature of the contact, (iii) the context in which the contact occurred, (iv) the words or gestures which accompanied the touching, and (v) all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force: R. v. Chase, supra. 

What follows from the objective test to be applied is that the complainant is not required to appreciate the sexual context of the assault. For example, a complainant may be unaware of features of the assault (such as the accused’s motivation for sexual gratification) that contribute to a finding that the assault was sexual. 

Sexual Assault with a Weapon or Causing Bodily Harm

A person who, in committing a sexual assault, carries, uses or threatens to use a weapon or imitation thereof, threatens to cause bodily harm to a person other than the complainant, or causes bodily harm to the complainant is guilty of a separate indictable offence with enhanced penalties, including in some circumstances, minimum terms of imprisonment: s. 272. 

In R. v. Lamy, [2002] 1 S.C.R. 860, the accused was convicted, inter alia, of sexual assault with a weapon. During the sexual assault, the accused penetrated the complainant with a long bamboo dildo in the shape of a baseball bat.  The Court of Appeal held that the trial judge erred in concluding that the forced introduction of an object into the vagina of the complainant was sufficient to constitute sexual assault with a weapon.  Accordingly, the Court of Appeal substituted a conviction for the included offence of sexual assault simpliciter. On further appeal to the Supreme Court of Canada, the conviction was restored. If no object is used to inflict injury, be it physical or psychological, in the commission of a sexual assault, it is not necessary that the injury amount to bodily harm to trigger the application of s. 272(1)(a) of the Criminal Code. The fact that the object was used to cause injury makes it a weapon for the purposes of this provision.

Aggravated Sexual Assault

Section 273 states that a person who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant is also guilty of a separate indictable offence punishable by up to life imprisonment, again with minimum terms of imprisonment in some circumstances.  

Consent          

The meaning of “consent” in the context of an assault was addressed by the Supreme Court of Canada in R. v. Ewanchuk, [1999] 1 S.C.R. 330 per Major J. at paras. 26-27:

The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred . . . .

Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault.  Some of this

confusion has been caused by the word “consent” itself.  A number of commentators have observed that the notion of consent connotes active behaviour … While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative.  At this point, the trier of fact is only concerned with the complainant’s perspective.  The approach is purely subjective.  [Emphasis added.]

For the purposes of the sexual offences described above, “consent” means the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1). This definition is subject both to the qualifications articulated in s. 265(3) (for all assaults) and in s. 273.1(2) (for the sexual offences described above).  These qualifications are summarized immediately below.  

Qualifications Upon Consent

No consent is obtained where:

1. the agreement is expressed by the words or conduct of a person other than the complainant
2. the complainant is incapable of consenting to the activity
3. the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
4. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity
5. the complainant, having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity: s. 273.1(2); or
6. the complainant submits or does not resist by reason of:
   
   1. The application of force to the complainant or to a person other than the complainant
      
   2. threats or fear of the application of force to the complainant or to a person other than the complainant
   3. fraud, or
   4. the exercise of authority: s. 265(3).

Of course, these may be regarded not as “qualifications” per se to the definition of consent, but merely as manifestations of the absence of any true voluntary agreement of the complainant to engage in the sexual activity in question. It is clear that they do not purport to exhaustively describe those circumstances in which no consent is obtained: s. 273.1(3).

 Consenting In Advance To Activities While Unconscious

Recently, in R. v. J.A., 2010 ONCA 226, the Ontario Court of Appeal considered whether an individual can consent, in advance, to sexual activity that is to take place while he or she is unconscious.  The accused was charged, inter alia, with sexual assault after choking his partner until she was unconscious, tying her up and then penetrating her anally with an object while she was still unconscious, all of which the complainant allegedly consented to in advance.  Justice Simmons, for the majority of the Court (Justice LaForme dissenting), held that a person may consent in advance to touching expected to occur while the person is unconscious, citing surgical interventions as an example.

Consent Vitiated by Fraud And “Endangering Life”

As noted earlier, consent may be vitiated by fraud. Not infrequently, this issue arises in the context of an allegation that the accused engaged in what would otherwise be consensual sexual activity, but for his concealment or failure to disclose his HIV-positive status.

In R. v. Cuerrier, [1998] 2 S.C.R. 371, Justice Cory, speaking for a majority of the Court, held that an accused’s failure to disclose that he is HIV-positive is a type of fraud involving dishonest deprivation or risk of deprivation that may vitiate consent. A complainant’s consent will be vitiated by fraud if the accused’s failure to disclose his HIV-positive status is dishonest and puts the complainant at a significant risk of suffering serious bodily harm. The Court had no difficulty in concluding that the risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test. It noted that the Crown must still prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIV-positive.

The “significant risk” test recognizes that intercourse with a person who is HIV-positive may present a risk, but that certain measures, such as the careful use of condoms, may be found to so reduce the risk that it could no longer be regarded as significant.  Absent significant risk, there will be no deprivation or risk of deprivation and no legal duty to disclose. It is clear that the presence or absence of a significant risk is fact-specific. In other words, this determination will be dependent on the evidence, including medical evidence, adduced in each case:

See, for example: R. v. Mabior, [2008] M.J. No. 277 (Q.B.) and the many cases cited therein.1

Where it is alleged that the accused failed to disclose his HIV-positive status to the complainant, the accused may face a charge of aggravated sexual assault, based on “endangering life.”  To prove an aggravated sexual assault, it is unnecessary for the Crown to establish that the complainant was, in fact, infected: R. v. Cuerrier, supra. That being said, an accused who fails to disclose his HIV-positive status will not have endangered the life of a complainant who was, or may already have been, HIV-positive: R. v. Williams, [2003] 2 S.C.R. 134.  However, those circumstances will still support the included offence of attempted aggravated sexual assault where the accused, aware of his HIV-positive status, and with the requisite mens rea, persisted in having unprotected sex with a complainant who incorrectly believed that both she and the accused were HIV-free.  

Consent Vitiated by Bodily Harm 

The term “bodily harm” is defined in s. 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.  This definition includes psychological harm: R. v. McCraw (1991), 666 C.C.C. (3d) 517 (S.C.C.).

In R. v. J.A., supra, the Ontario Court of Appeal interpreted the definition of bodily harm as constituting a hurt or injury that interferes with the health or comfort of a person and that is more than merely transient or more than merely trifling.  It is not necessary that the harm be more than transient and trifling to constitute bodily harm.  Justice Simmons noted that this interpretation accords with earlier caselaw which has found that injuries that are of a short duration can still amount to bodily harm. 

In R. v. J.A., the accused choked the complainant into unconsciousness. In addition to the Crown’s argument (earlier described) that the complainant could not consent in advance to sexual activities occurring while she was unconscious, the Crown argued that, in a sexual context, consent is vitiated where bodily harm is intended and caused. Choking the complainant to the point of unconsciousness was said to constitute bodily harm. In making this submission, the Crown relied, inter alia, upon R. v. Jobidon (1991), 66 C.C.C. (3d) 454 (S.C.C.), R. v. Welch(1995), 25 O.R. (3d) 665 (C.A.) and R. v. Robinson (2001), 53 O.R. (3d) 448 (C.A.).

Of course, in R. v. Jobidon, supra, the Supreme Court of Canada held, in the context of socially useless activities (such as bar room brawls), that serious bodily harm that is both caused and intended may vitiate consent.2  In R. v. Welch, supra, cited with approval in R. v. Robinson, supra, the Ontario Court of Appeal said this:

The consent of the complainant, assuming it was given, cannot detract from the inherently degrading and the dehumanizing nature of the conduct. Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberating inflicting pain upon another that gives rise to bodily harm, then the personal interests of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviours.

In R. v. J.A., supra, the Court of Appeal concluded that the trial judge had erred in law in interpreting the meaning of “bodily harm.” It also stated that it might have been preferable for the Crown at trial to call expert evidence on whether the unconsciousness experienced by the complainant amounted to bodily harm. However, even assuming that the record permitted such a finding to be made, the Crown was not entitled to rely on bodily harm to support the trial conviction on sexual assault simpliciter.  Bodily harm is not an element of the offence of sexual assault. The Crown did not formally allege that the complainant suffered bodily harm that would vitiate her consent; instead, it had alleged that the complainant did not consent to the sexual activity that formed the basis of the sexual assault charge. Accordingly, it was precluded from relying on bodily harm to vitiate the complainant’s consent to erotic asphyxiation on appeal.

Elements of the Offence: Mens Rea

The mens rea for the offence of assault (most particularly s. 265(1)(a)) is

1. the intentional application of force
2. knowing that the complainant does not consent or being reckless or wilfully blind as to the complainant’s lack of consent: Sansregret v. The Queen, [1985] 1 S.C.R. 570, 18 C.C.C. (3d) 223.

The accused’s honest but mistaken belief as to the complainant’s consent may negate the requisite mens rea for assault, whether or not that belief is objectively reasonable. The presence or absence of reasonable grounds for that belief will nonetheless inform whether the belief was genuinely held. While the defence must demonstrate that there is an air of reality to this defence that justifies its consideration by the trier of fact, ultimately the Crown bears the burden of demonstrating the existence of the requisite mens rea.  

Recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found, in this context, in one who sees the risk or danger that consent is absent, but persists in the conduct which creates the risk that non-consensual sexual activity will occur. Mere negligence does not suffice. Wilful blindness is distinguished from recklessness. It arises where a person suspects a fact (in this instance, the absence of consent) and deliberately refrains from making inquiries for fear of confirming that suspicion. It is tantamount to knowledge. Again, mere negligence does not suffice.

Of course, knowledge that the complainant does not consent includes knowledge that any purported consent was given because of threats or fear of bodily harm or other circumstances that vitiate consent. The same holds true for recklessness and wilful blindness.

For the sexual offences described above, it is not a defence that the accused believed that the complainant consented to the subject activity where:

1. the accused’s belief arose from the accused’s self-induced intoxication or recklessness or wilful blindness; or
2. the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

The first limitation represents no departure from the approach taken at common law. It has also been historically expressed through the characterization of this offence as one of “general intent.” The second limitation prevents reliance upon mistaken belief in consent when grounded on the accused’s failure to take reasonable steps to ascertain the presence of consent.

 In relation to the offence of sexual assault with a weapon, R. v. Lamy, supra, also tells us that the accused must knowingly or recklessly use the object without the consent of the victim in circumstances where injury was reasonably foreseeable.

In relation to the offence of sexual assault causing bodily harm, there is no added mens rea or fault component beyond the mens rea associated with sexual assault simpliciter.

In relation to the offence of aggravated sexual assault, the mens rea or fault component (beyond that associated with sexual assault simpliciter) is objective foresight of the risk of bodily harm. The prosecution need not prove an intent to maim, wound or injure: R. v. Godin, [1994] 2 S.C.R. 484, 89 C.C.C. (3d) 574n; R. v. Williams, [2003] 2 S.C.R. 134.

1  Justice McKelvey found that the combination of an undetectable viral load (the quantity of HIV in the blood) and the use of a condom and/or no ejaculation may reduce the risk of bodily harm below that which would be sufficient for a conviction on the charge of aggravated sexual assault.  In May 2010, in British Columbia, an HIV-positive man was found not guilty of aggravated sexual assault based on expert testimony that the risk of transmission (4 in 10,000 per sexual assault), and the heightened treatability of HIV were such that the complainant was not proven to have been exposed to a significant risk of serious bodily harm. (report not yet available).

2 See also R. v. Paice, [2005] 1 S.C.R. 339.