Sexual
assault in Canada
In Canada sexual offenses where the victim is not exclusively a minor
are considered violent crimes and as such are included within Part VIII of the
Criminal Code, entitled Crimes against the Person and the Reputation. More
specifically, sexual abuses are considered a variety of assault. So, for
example, sexual assault is aggravated according to the violence used by the
perpetrator instead of the gravity of the intrusion to or violation of the
victim’s sexual integrity. The three main offenses are thus (i) simple sexual
assault, (ii) sexual assault with a weapon, threats to a third party or causing
bodily harm, and (iii) aggravated sexual assault.
There is no definition of sexual assault in the Canadian criminal code,
which only defines the offense of assault. Courts have interpreted that the actus reus
of sexual assault is any non-consensual sexual touching. In Canada, consent is primarily defined in
an affirmative way. It means a “voluntary agreement of the complainant to
engage in the sexual activity in question.” In other words, there is consent when both parties agree
to engage in sexual activity. However, “[t]o be legally effective, consent must
be freely given.” So, the code also foresees some instances when even though
there was consent it is not considered legally valid. These situations are where:
(a) the agreement is expressed
by the words or conduct of a person other than the complainant; (b) the complainant is incapable of
consenting to the activity; (c)
the accused induces the complainant to engage in the activity by abusing a
position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of
agreement to engage in the activity; or (e) 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.”
Sexual assault is considered a general intent offense as no ulterior mens rea is required. The mens rea of sexual assault is the intention to touch, and knowing of, or being reckless of the victim’s lack of consent. The accused may challenge the prosecutor’s evidence of mens rea by asserting an honest but mistaken belief in consent. The accused’s claim that he honestly and mistakenly believed in the victim’s consent must be a belief that the complainant had communicated her consent to him; it must not be tainted by any of the statutory factors vitiating consent; and it cannot be raised unless the accused took “reasonable steps, in the circumstances known to the accused at the time” to ascertain consent.
Sexual assault is aggravated according to the violence used by the perpetrator instead of the gravity of the intrusion to or violation of the victim’s sexual integrity. The three main offenses are thus (i) simple sexual assault, (ii) sexual assault with a weapon, threats to a third party or causing bodily harm, and (iii) aggravated sexual assault.
In Canada, traditional statutory
rape laws have been replaced with specific laws against a variety of sexual
offenses concerning children. For example, the Criminal Code provides that any
person who, for sexual purposes, touches any part of the body of a person under
the age of 14 is guilty of the offense of sexual interference. The
charge cannot be defended by claiming consent by the minor or mistake
concerning the age of the victim. However, if the accused person is between the
ages of 12 and 16 and the victim is less than two years younger than the
accused and consented to the activity, it is not considered a crime.
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151. Every person who, for a sexual purpose,
touches, directly or indirectly, with a part of the body or with an object,
any part of the body of a person under the age of fourteen years (a)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for a term of
forty-five days; or (b)
is guilty of an offence punishable on summary conviction and liable to imprisonment
for a term not exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days. |
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152. Every person who, for a sexual purpose,
invites, counsels or incites a person under the age of fourteen years to
touch, directly or indirectly, with a part of the body or with an object, the
body of any person, including the body of the person who so invites, counsels
or incites and the body of the person under the age of fourteen years, (a)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for a term of
forty-five days; or (b)
is guilty of an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months and to a minimum
punishment of imprisonment for a term of fourteen days. |
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153. (1) Every person commits an offence who
is in a position of trust or authority towards a young person, who is a
person with whom the young person is in a relationship of dependency or who
is in a relationship with a young person that is exploitative of the young
person, and who (a)
for a sexual purpose, touches, directly or indirectly, with a part of the
body or with an object, any part of the body of the young person; or (b)
for a sexual purpose, invites, counsels or incites a young person to touch,
directly or indirectly, with a part of the body or with an object, the body
of any person, including the body of the person who so invites, counsels or
incites and the body of the young person. |
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Punishment |
(1.1) Every person who commits an offence
under subsection (1) (a)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for a term of
forty-five days; or (b)
is guilty of an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months and to a minimum
punishment of imprisonment for a term of fourteen days. |
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Inference
of sexual exploitation |
(1.2) A judge may infer that a person is
in a relationship with a young person that is exploitative of the young
person from the nature and circumstances of the relationship, including (a)
the age of the young person; (b)
the age difference between the person and the young person; (c)
the evolution of the relationship; and (d)
the degree of control or influence by the person over the young person. |
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Definition
of “young person” |
(2) In this section, “young person” means
a person fourteen years of age or more but under the age of eighteen years. |
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159. (1) Every person who engages in an act
of anal intercourse is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years or is guilty of an offence
punishable on summary conviction. |
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Exception |
(2) Subsection (1) does not apply to any act
engaged in, in private, between (a)
husband and wife, or (b)
any two persons, each of whom is eighteen years of age or more, both
of whom consent to the act. |
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Idem |
(3) For the purposes of subsection (2), (a)
an act shall be deemed not to have been engaged in in private if it is
engaged in in a public place or if more than two persons take part or are
present; and (b)
a person shall be deemed not to consent to an act (i) if the
consent is extorted by force, threats or fear of bodily harm or is obtained
by false and fraudulent misrepresentations respecting the nature and quality
of the act, or (ii) if
the court is satisfied beyond a reasonable doubt that the person could not
have consented to the act by reason of mental disability. |
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Age of Protection Legislation
As part of its Speech from the Throne commitment to tackle crime and its pledge to protect Canadian families and communities against sexual predators, the Government has introduced “age of protection” legislation. The legislation proposes to raise the age of consent from 14 to 16 years old , in order to help stop adults from sexually exploiting vulnerable young people.
Understanding “Age of Protection”
The age of protection, or age of consent as it is also called, refers to the age at which the criminal law recognizes the legal capacity of a young person to consent to sexual activity. Below this age, all sexual activity with a young person, ranging from sexual touching to sexual intercourse, is prohibited. The current age of consent is 18 years old when the sexual activity involves exploitative activity. This applies to such cases as prostitution, pornography, or where there is a relationship of trust, authority, dependency or any other situation that is otherwise exploitative of a young person. Under the current law, the age of consent for non-exploitative sexual activity is 14 years old.
Recognizing the Threat of Adult Predators
Protection of children and youth against sexual exploitation remains a high priority for Canadians. These concerns have been amplified with the use of new technologies such as the Internet by adult predators to sexually exploit youth. By raising the age of protection, the Government is targeting those who sexually prey upon some of society's most vulnerable individuals.
Building in Reasonable Exceptions
The Government equally recognizes that Canadian youth, like all youth around the world, are sexually active. Close-in-age exceptions have been included in the legislation to protect against the criminalization of consensual teenage sex. This exception would apply to 14 and 15 year old youth who engage in non-exploitative sexual activity with a partner who is less than five years older.
Under the proposed reforms, an additional time-limited exception would be available for a 14 or 15 year old youth whose sexual partner is more than five years older but with whom, when the new age of protection comes into effect, the youth is already legally married or living in a common-law relationship, as defined in the Bill.
The proposed reforms maintain an existing close-in-age exception that exists for 12 or 13 year olds who engage in sexual activity with a peer who is less than 2 years older, provided the relationship is not exploitative. The legislation also maintains the existing age of protection of 18 years old for exploitative sexual activity.
Adolescent
Sex Offenders
Who Are Adolescent Sex Offenders? I. An adolescent sex offender is defined as any male
or female between the ages of 12 and 17 years of age who commits any sexual act
with a person of any age against the victim’s will, without consent, or in an
aggressive, exploitive, or threatening manner (1)
II. Adolescent sex offenders come from all
socio-economic, ethno-cultural, and religious backgrounds. They also vary
widely in their level of intellectual functioning, their motivation, the
victims they choose, and the behaviours they commit. III. Some teens sexually
abuse only younger children, others peer-aged victims. Some abuse only within
their family. Others choose dating partners, acquaintances, strangers, and
sometimes adults. Some use force or extreme violence while others trick, subtly
pressure or manipulate their victims into sexual activity. Most adolescent sex
offenders are known by their victims.
IV. Some teens commit only
"hands-off" sexual offences such as voyeurism (peeping), exposing
their private parts to others, making obscene phone calls, frottage (rubbing
against others in crowded places), or fetishism (such as stealing underwear).
Others commit "hands-on" sexual offences such as fondling or
penetration with a penis, finger or objects.
V. Defining a behaviour as being sexual
assault or abuse can sometimes be difficult. It is easy to identify a sexual
offence when there is a wide age gap between the teen perpetrator and the
victim or the abuse involves force or penetration. But as the age gap narrows,
and if the behaviour involves fondling or an absence of force or aggression, it
is necessary to assess it in terms of coercion, consent, or power differences.
VI. Coercion happens when one person tricks,
pressures, or manipulates another to do something. If victims have been
coerced, they have not really given full and informed consent.
VII. If the perpetrator is in a position of
power over or has responsibility for the victim, the relationship is not equal,
so consent has not really been given. Power advantages can come from an
offender being an older sibling, being a baby-sitter of the victim, being
bigger in physical size or stronger, or having greater mental or emotional
maturity.
How Widespread is the Problem?
VIII. Precise estimates of the extent of
adolescent sex offending behaviour in Canada are difficult to obtain. Detailed
statistics on teen sex offending, are not readily available from treatment
programs and services. Official national statistics do not reflect the fact
that sometimes sexual assault charges are brought to court as common assault
charges.
IX. Nationally, between 15% and 33% of all
sex offences in Canada are committed by persons under 21 years of age. Males
represent approximately 90% of adult and adolescent sex offenders reported to
authorities (2)
X. In Ontario, between 1979 and 1984, nearly
1,400 persons between the ages of 16 and 19 were convicted of one or more
sexual offences (3)
XI. A population survey done for the Badgley
Commission on sexual offences against children found that almost one third of
suspected or known offenders against children was under the age of 21 (4)
XII. Many victims do not report their abuse
out of fear of revenge. Victims of sexual dating violence or acquaintance rape,
or male victims of female offenders often do not define their experience as
sexual assault or abuse therefore do not report it.
XIII. Other victims are afraid of parental
reactions, or are too embarrassed to report because they mistakenly believe
that what happened to them is their fault. Some are sometimes reluctant to
involve the police or other "officials" because they think they will
bring shame or stigma to themselves or their family. Some victims are just too
young, developmentally delayed, or immature to realize they were sexually
assaulted or sexually abused.
XIV. Sexual acts by teens are still often
dismissed or minimized as being just experimentation or harmless curiosity.
Adolescent sex offenders rarely disclose their abusing behaviour or refer
themselves to treatment. Many parents also do not report incidents of incest
between siblings or other members of the family.
How Serious Are Their Offences?
XV. When adolescents are caught sex offending
it is generally assumed that this is not the first time they have done it or
thought about doing it. Some teens begin by committing less serious kinds of
sexual assault and, if not caught, progress to more serious offences. Serious
forms of sexual behaviour typically have developed over a course of time.
XVI. Sexual offences committed by teens range
widely in their degree of seriousness. Penetration can account for as much as 37%
or more of all reported offences.
XVII. Most, though not all, adolescent sex
offenders are older than their victims. Force and threats are more typically
used against older or peer aged victims, while misuse of power and authority,
trickery, bribery or blackmail may be used with younger victims and small
children (5)
Where Do These Sexual Offences Occur?
XVIII. It is generally believed that female
sex offenders abuse more victims inside the family, while males abuse both
siblings and others outside the family.
XIX. Sex offences involving teen perpetrators
occur most often in the victim s home, or the victim and offender s common
home. Some happen while teens are baby-sitting siblings or other children.
Others occur outside, in parks, alleys, and cars, and inside apartment or
townhouse stairwells, elevators, and garages. Nearly 15% of all sexual offences
involving teen perpetrators happen at school or on school property (6)
Why Do Adolescents Commit Sexual
Offences?
XX. Adolescents commit sex offences for a variety
of reasons. Some teens who are awkward socially, have difficulty making
friends, or have been rejected by other youth of their own age, sometimes turn
to younger children for friendship or sex. The children they molest usually don
t understand what is happening to them. They typically become scared or feel
they cannot complain, so the teen may take this as a sign of consent and
continue abusing them.
XXI. Some teens offend out of anger or a need for power and control over
others.
XXII. Some teens may be developmentally
delayed and unaware that what they are doing is wrong and abusive.
XXIII. Some male teens in dating
relationships possess distorted thinking about sex and relationships. They
think that if their partner says "no" she only needs a little
encouragement, verbal persuasion, or mild force. Adolescent sex offenders
sometimes attempt to copy scenes they have seen in pornography media.
XXIV. Many adolescent sex offenders grow up in abusive families where
alcoholism, substance abuse, and inter-parental violence are commonplace.
Seeing this everyday teaches a young person that anger, frustration, and
personal needs can be dealt with by the use of force and violence.
Previous Victimization
XXV. A history of physical abuse, sexual
abuse, or neglect can be found in the background of many adolescent sex
offenders. One of the few Canadian studies on this subject found that about 33%
of adolescent male offenders had experienced abuse or neglect in their
childhood (7)
XXVI. One American study found that 60% of
abusers had been physically abused, 50% had been sexually abused, and 70% had
experienced neglect in childhood. Over 50% of the adolescents had experienced a
combination of these forms of abuse (8)
. Sexual victimization also shows up in the
backgrounds of significant numbers of female adolescent sex offenders (9)
XXVII. Adolescents who were themselves abused
as children sometimes use sex offending as a way to get revenge. Some youth
abused by parents and older siblings or family members may think that sex
between older and younger persons is "normal".
XXVIII. Recent clinical research has shown
that the relationship between previous victimization and future offending is
complex (10)
0 and influenced to a significant degree by
the quality of care and relationships child victims experience with their parents
or caregivers (11)
1.
XXIX. Not all sexual offenders were
themselves abused as younger children. However, child sexual abuse victims are
at greater risk of offending than are non-victims, though most child victims do
not become offenders. Previous victimization is increasingly recognized as an
important treatment issue.
Female Adolescent Sex Offenders
XXX. Though a majority of adolescent sex offenders are
male, research emerging over the past ten years has begun to document female
sex offending. Studies of hospital, child welfare agency, and treatment
programs have found that females comprise between 3% - 10% of the sex offender
population. General population and victimization surveys report significantly
higher numbers and extend the range up to 50% (12)
2 and even higher (13)
3, depending on the victim sample population
studied.
XXXI. Many of the behaviours of female
adolescent sex offenders are hard to detect since few people question the close
interactions of females with children. Much of the offending by females occurs
when they are baby-sitting. Most victims are acquaintances and, primarily
children. Twenty percent of sex offences against male siblings are committed by
sisters, compared to 21% for brothers (14)
4. XXXII. Adolescent females, like males,
also offend against partners in same sex relationships. Research on same sex
peer sexual assault among teens is only just beginning to be done. XXXIII.
Adolescent females commit many of the same types of offences as their male
peers (15)
5 (16)
6. Some believe girls sex offend because they
are forced to do so by male accomplices. However, some studies have not found
this to be true (17)
7 (18)
8. It is also believed that females use less
force and violence to obtain compliance from their victims.
Offenders With An Intellectual
Disability
XXXIV. Because research on adolescent sex offenders
with an intellectual disability is lacking, it is difficult to provide a
detailed picture. Early Canadian studies found varying degrees of intellectual
disability in adolescent sex offenders that ranged between 24% - 36% (19)
9 (20)
0. The more severe the disability the more
difficult it becomes to label the teen s behaviour as sex offending. Less than
3% of adolescent sex offenders could be considered seriously mentally disturbed
or sociopathic.
Interventions With Adolescent Sex
Offenders
Interventions with adolescent sex offenders
are guided by four principles:
XXXV. Treatment must be directed at
preventing further victimization;
XXXVI. Legal accountability for offending
behaviour must be acknowledged and communicated;
XXXVII. Evaluation of the youth offender must
include a thorough assessment conducted by a therapist trained to work with sex
offenders;
XXXVIII. Treatment in peer groups designed
specifically for teen sex offenders is the preferred mode of intervention.
Treatment programs for adolescent offenders
should be staffed by persons trained to provide sex-offence specific
interventions. All young offenders should be given a thorough assessment to
develop an individualized program of care designed to meet their specific
needs.
Professionals who work with adolescent sex
offenders may choose a combination of individual, group, and family therapy,
depending on the needs of the youth and the circumstances of the offence.
Teens in treatment are often provided with anger management and impulse control
skills, basic sex education, relapse prevention techniques, life skills, and
strategies to help them deal with their distorted thinking patterns.
Because the adolescent sex offender field is relatively new, we are still a
long way from having all the information we need to be able to predict with a
high degree of accuracy who will offend. Treatment providers, struggling with
limited resources, are challenged to provide thorough assessments and
comprehensive treatment interventions.
Prevention
XXXIX. We must be mindful of the words we use
to discuss teen sex offending. Sexual offending behaviour is only one aspect of
the young person s life. Labelling a youth a "sex offender" can have
significant negative developmental consequences. We need to see the behaviour
in a wider context of the youth s life and experience. We also need to
recognize that teens often get their ideas about sex and sexuality from adults
in the world around them. Currently, pornography is the principle source of
information about sex and sexuality for young people.
XL. We should understand a young person s
curiosity about sex and learn to recognize the difference between appropriate
sexual experimentation and problematic sexual behaviour.
XLI. Because many adolescents who offend were themselves victimized, we have to
recognize the importance of dealing with the underlying harm caused by their
own abuse. If we neglect to do so, we will have little success in treating
their offending behaviour (21)
1.
XLII. Some adolescents begin sex offending
before they reach 12 years of age. Many of these children are simply reacting
to their own abuse. Others may copy sexual behaviour they have witnessed on the
part of older siblings, adults, or in pornography. Therefore, early
identification and treatment are essential for all young children who have been
abused.
XLIII. We need to take all problematic sexual
behaviour of children and teens seriously. Holding abusers accountable,
regardless of their age, is important for the well-being and healing of
victims. It also brings abusers to the attention of those who can help stop
them from harming themselves and others again.
XLIV. While always potentially harmful to
victims, some sex offending behaviour can start with curiosity and
experimentation with younger children and siblings then gradually get out of
hand. Parents and caregivers should closely monitor the sexual behaviours of
children and provide gentle corrective feedback to them immediately.
XLV. There is a need to provide young people
with appropriate, age-relevant information about sex and sexuality. Emphasis
should be placed not simply on sex, birth control, or sexually transmitted
diseases, but also include information about feelings, relationship-building,
dating, power and control, sexual harassment, consent, and force.
XLVI. The best teacher for a child or teen is a positive adult who models a
sense of equality in relationships, possesses accurate information about sex,
and is comfortable with his or her own sexuality. Such a person should use
clear, concise and direct language. Using vague or complicated terms reveals
the adults discomfort and suggests to the youth that there is something shameful
about sex.
XLVII. Adults should carefully screen
teenaged baby-sitters, both male and female, before using their services. Hire
only mature and competent teens or adults. Obtain references from other
families. Carefully observe the child s behaviour around this person,
especially when returning home.
XLVIII. You can support local and national
efforts in the media and popular entertainment to eliminate harmful sexual
stereotypes, the sexualization of children and youth, the undue exploitation of
male and female sexuality, and violent sexual images.
XLIX. Experts in this field agree that there
is a need to develop and support multi-disciplinary, coordinated continuum of
care, including post-program supports or aftercare for these young offenders.
Professionals within the continuum from child welfare and counsellors to
police, probation officers, and the judiciary should possess a common
understanding of the most current information available regarding adolescent
sex offending behaviour and treatment.
Source: http://www.phac-aspc.gc.ca/ncfv-cnivf/familyviolence/html/nfntsxadolinfractions_e.html |