Exploring the distinctions between sexual assault and sexual battery takes on added complexity when considering the nuances of how sex crimes and sexual abuse are dealth with in the  criminal  legal systems of Canada and the United States. Under the Canadian criminal law  framework, the specific details of the criminal sexual conduct affect how acts are classified. 

As a reputable criminal defence law firm, we at Kruse Law often receive questions about the terminology surrounding different forms of sexual crimes and sexual violence. Some of the more common questions we are asked include “What is sexual battery? What is sexual assault? And how are they different?” 

In this article, we will clarify the difference between sexual battery and sexual assault charges and explore the definition of sexual assault according to the Canadian Criminal Code, outline the penalties associated with conviction, and shed light on the essential role of a criminal defence lawyer in such cases.

Sexual Battery: A Misleading Term in Canada

Sexual battery charges in the United States refer to a specific criminal offence that involves unwanted sexual acts. This, however, can be misleading when applied to Canadian criminal  law. 

Sexual battery is not recognized as a legal term under Canadian criminal law. Instead, actions that may be categorized as sexual battery in the U.S. fall under the broader legal definition of sexual assault.

Understanding Sexual Assault in Canada

Sexual assault, as outlined in Section 271 of the Criminal Code, encompasses a wide range of unwanted sexual contact, from unsolicited touching and fondling to sexual penetration. In Canadian criminal law, sexual assault is defined as any sexual activity without the voluntary agreement or consent of all involved parties. As you can see, this definition would cover the acts described as “sexual battery” in the United States.

In Canada, consent must be freely given by a person who has the capacity to provide it. Silence or passivity does not constitute consent. Consent is invalidated under several circumstances, including when someone is incapable of giving consent (e.g., due to unconsciousness or extreme intoxication) or when it results from the abuse of trust, power, or authority. Consent to sexual intercourse or any other sexual act must be continuous, and individuals cannot legally consent in advance to sexual activity in the future.

Penalties Associated with Sexual Assault Convictions

Convictions for sexual assault in Canada carry severe penalties, and these can vary depending on several factors. Some factors include whether the Crown proceeds by summary conviction or indictment, the type of sexual assault involved, and the age of the victim.

For instance, for a common sexual assault conviction:

  • Indictment: Up to 10 years imprisonment, as per Section 271(a) of the Criminal Code, or, if the complainant is under 16, a minimum of 1 year and a maximum of 14 years.

  • Summary Conviction: Up to 18 months imprisonment, as per Section 271(b), or, if the complainant is under 16, a minimum of six months with a maximum of two years less a day.

Nevertheless, penalties can differ for sexual assaults involving weapons, threats to third parties, choking or bodily harm. For these types of more serious sexual assaults under section 272 of the Criminal Code, the maximum jail term is 14 years. However, if the complainant is under 16 years old, life imprisonment may be imposed. For aggravated sexual assault under Section 273 (i.e., where wounding, maiming, disfiguring or endangering the life of the complainant occurs in committing a sexual assault), the maximum jail term is life in prison. For both sexual assault causing bodily harm and aggravated sexual assault, there are also far more stringent mandatory minimum jail terms where firearms are used during the sexual assault, or the victim is under 16 years old. 

To learn more about The Different Levels Of Sexual Assault Allegations, and other Sexual Assault Facts, please refer to our supplementary resources.

What’s more, anyone convicted of sexual assault in Canada is required to register with the National Sex Offender Registry in accordance with the National Sexual Offender Information Registry Act (SOIRA).

Role of a Criminal Defence Lawyer

Facing charges for a sexual offence is an incredibly challenging and stressful experience, and having the right legal representation is essential to navigating the legal process effectively. 

A skilled criminal defence lawyer will examine the details of your case, explore potential defences, and work tirelessly to ensure a fair legal process. Some of the more common defences in sexual crime cases:

  • Consent: Consent is central to sexual assault cases, and if the complainant genuinely consented, it can serve as a defence.

  • Honest but Mistaken Belief in Communicated Consent: If you genuinely but mistakenly believed there was consent, it may serve as a defence.

  • Mistaken Identity: In cases of mistaken identity, where you can prove you were not present during the offense, this defence may apply.

  • No Sexual Contact: If it can be proven that no sexual touching occurred, a critical element of the actus reus is not satisfied.

Refer to our article How To Defend Yourself Against A Sexual Charge to learn more.

Choosing Kruse Law for Legal Representation

If you’re facing sexual assault charges, seeking legal counsel from experienced criminal defence lawyers is the first step you need to take to protect your rights and future.

At Kruse Law, we have the experience and knowledge needed to build a defence on your behalf. It all starts with the free consultation we offer, where we’ll hear your side of the story and discuss the specifics of your case. Don’t face these charges alone; let us be your advocates and help you build a strong defence strategy.

Kruse Law – Protecting Your Rights and Futur

To recap, both sexual assault and sexual battery are serious crimes, however, the term “sexual battery” is not a recognized legal term in Canada. Crimes of a sexual nature that fall under this category in the United States are generally considered sexual assault. Sexual assault charges in Canada carry severe penalties. A conviction for this sex crime can result in imprisonment, and registration with the National Sex Offender Registry. 

Having a knowledgeable criminal defence lawyer by your side is essential in such cases, as they will provide the legal guidance you need, protect your rights, and construct the best legal defence for your case. At Kruse Law, we will fight to protect your future and ensure a fair legal process with the help of our experienced team.

Contact us today for a free consultation and take the first step towards safeguarding your rights. Also, take a look at our Frequently Asked Questions About Sexual Assault resource ahead of your meeting to make the most of this discussion.

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