The elements of sexual assault are very similar to assault. In addition to the following elements review the elements of assault.
Nature of Sexual Assault
- The force must be sexual in nature
- The unique element to prove is that the non-consensual force applied was of a sexual nature. If the sexual contact involves the touching of the genitalia, this should not be difficult to prove. However, it is possible to a sexual assault that does NOT involve touching of the sexual parts of the body, if there is other evidence that the touching was for a sexual purpose.
- The assault and sex must have a nexus
- You may have a challenge laying a charge of sexual assault if the facts allow defence to separate the sexual act from the assault. Defence will often try to separate the two, as the penalty is less for assault.
- For example: A sex trade worker is beat up by a client. Defence will try to show that the sex was consensual and paid for, the assault was unconnected to the sex. If you cannot prove the sexual component of the act, an assault charge may still be appropriate.
Have clear notes about the complainants…
- Injuries (or lack thereof)
- Emotional or mental state
- Emotions are NOT indicators of truthfulness, but can provide needed insight for Crown
- Level of intoxication – drugs or alcohol
- Evidence of use – drugs or alcohol
Keep you notes objective, full, frank and fair. Do not advocate for a witness. Conduct a thorough interview and then substantiate or collaborate the statement with objective evidence.
Provide details of who, where and when the medical examination was conducted.
Establish Continuity of the Sexual Assault Kit
Clearly list all exhibits seized.
- Clearly describe the condition of the exhibits
- Rip, tears, visible signs of bodily fluids
Clearly indicate which exhibits were sent for further examination to lab
Sexual assault with a weapon
In order to lay a charge of Sexual Assault with a weapon, one of the following must apply
- Did the accused carry, use or threaten to use a weapon?
- Did the accused threaten bodily harm to a 3rd party?
- Did the accused cause bodily harm to the complainant?
- Was someone else a party to the offence with the accused?
Aggravated Sexual assault
In order to lay a charge of Aggravated Sexual Assault the complainant must have suffered injuries that will fit the legal definition of wounds, maims or disfigures