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What Constitutes Sexual Assault?

Posted by Daniel K. Topp on 12 April 2019
What Constitutes Sexual Assault?

With the emergence of the #MeToo movement centered around awareness and action against sexual assault, a lot of people are confused about how they can and cannot interact with one another and what actions they can and cannot be charged for.

To clarify, sexual assault is any type of sexual activity without consent.

Here's what else you need to know.

What Activities are Sexual Activities?

Any sexual contact is considered to be a sexual activity, including fondling, rubbing, kissing, grabbign sexual areas, and penetrative sex. Doing any of these things to someone without their consent is sexual assault.

What is Consent?

Regarding sexual assault, consent is the voluntary agreement to engage in sexual activity.

Any sexual activity that takes place without consent is illegal.

You don't have someone's consent if they've said or done something to indicate that they don't want to engage in sexual activity. Actions like saying no, pushing your hands away, backing away, or looking uncomfortable among others may constitute a lack of consent.

Furthermore, consent:

  • Should never be assumed or implied. If there's any doubt, ask directly, or don't engage.
  • Is not silence or the absence of "no". 
  • Must be received through every phase of activity and can be withdrawn at any time. Consenting to oral sex does not equate consenting to penetrative sex.
  • Cannot be given by someone incapable of consent including:
    • Someone who is incapacitated by drugs or alcohol
    • Unconscious or Asleep
  • Cannot be obtained through threats, coercion or force.
  • Cannot be given if the perpetrator abuses a position of trust, power, or authority.
  • Cannot be given by anyone other than the person participating in the sexual activity.

You have someone's consent if they have freely and clearly agreed to the sexual activity.

While it is possible in court to argue that you mistakenly believed the person gave consent, it will not count as a defense if:

  • That belief arose from your own self-induced intoxication.
  • You were reckless about whether the person was consenting.
  • You willfully ignored signs that there was no consent.
  • You didn't take reasonable steps to check if there was consent.

Sexual assault is a serious crime with serious consequences for everyone involved. You need an experienced, knowledgeable and understanding lawyer fighting in your sexual assault case's corner.

If you find yourself facing sexual assault charges, contact my office right away so we can ensure the best outcome for you.

Author:Daniel K. Topp
About: For the better part of 20 years, my law office has been serving residents of Southwestern Ontario, including Windsor, Essex, Chatham and Sudbury by offering strong legal representation in criminal matters. Practicing criminal law has always been my passion, even from childhood. Growing up, I had a chance to watch my father, a seasoned criminal lawyer, serve the legal system. This was what inspired me to pursue a career in the same field. Over the years, I had a chance to observe, learn and receive guidance from him. After working hard at University and then Law School, I entered the legal profession at the young age of 23, and have been practising nothing but criminal law since. I have lived and breathed criminal defence law my whole life. And now with over 15 years of experience in this field, vigorously defending my clients I am in a unique position to assist you. If you need help, please contact my office today.

100 Ouellette Avenue, Suite 701,
Windsor, ON N9A 6T3

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