What is indecent assault?

If you’re facing allegations tied to sexual offences in Canada, it’s important to understand how the law has evolved—and how it might still apply retroactively. Here’s a quick breakdown:

• “Indecent assault” was a criminal charge in Canada before 1983.

• Bill C-127, passed in 1983, replaced it with the current sexual assault framework.

• Despite this change, historical indecent assault charges can still be laid for incidents before January 4, 1983.

• These cases are prosecuted under the old legal definitions but may benefit from modern evidentiary protections.

• Regardless of the framework used, sexual offence charges carry serious consequences.

Understanding the legal nuances of historical charges is essential if you’re involved in such a case. Continue reading to learn how the law applies and what your rights and defence options may be.

 

 

What does “indecent assault” mean in Canada?

A term you’ll hear in older cases

“Indecent assault” represents a significant piece of Canadian legal history that many people encounter when dealing with historical sexual offence cases. Before January 4, 1983, Canada’s Criminal Code included specific offences for “indecent assault on a female” under Section 149 and “indecent assault on a male” under Section 156.

The term “indecent” reflected the moral and social attitudes of earlier eras, focusing on what society considered inappropriate sexual behavior rather than emphasizing the violent and non-consensual nature of these acts. Under the old law, indecent assault covered unwanted sexual touching, fondling, or other sexual contact that didn’t constitute rape under the narrow definitions that existed at the time.

Section 149 of the old Criminal Code stated that “Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years.” The parallel provision for males under Section 156  sets out a maximum jail term of 10 years and the specific wording of the charge differs slightly from Section 149. 

These provisions covered a broad range of unwanted sexual conduct, including sexual touching without penetration, forced kissing, inappropriate touching of intimate body parts, and other sexual acts that fell short of the legal definition of rape that existed at the time. The charges could apply to both strangers and people known to the victim, though the legal and social context often made prosecution difficult, particularly in cases involving spouses or intimate partners.

People today most commonly encounter references to indecent assault in one of two contexts: historical criminal charges for incidents that occurred before 1983, or when reviewing old court cases and legal precedents that still influence how modern sexual assault cases are handled.

 

Why it’s no longer used in modern criminal charges

The elimination of indecent assault as a separate offence came through Bill C-127, which took effect on January 4, 1983. This sweeping reform replaced the old system of rape and indecent assault charges with a unified approach focused on sexual assault.

The reasons for this change reflected growing understanding of sexual violence and significant advocacy by women’s groups, legal professionals, and victim advocates who identified serious problems with the old legal framework. The previous system had several critical flaws that made it inadequate for addressing sexual violence effectively.

The old laws were criticized for their focus on sexual morality rather than violence and consent. The term “indecent” implied that the primary concern was social propriety rather than the harm caused to victims through non-consensual sexual contact. This approach often put victims’ character and behavior under scrutiny rather than focusing on whether they had consented to the sexual activity.

The gender-specific nature of the old charges also created significant problems. Having separate charges for indecent assault on females versus males reinforced outdated ideas about gender roles and sexual behavior, while also creating legal gaps that left some victims without adequate protection under the law.

Perhaps most significantly, the old system included a spousal exemption that prevented husbands from being charged with raping their wives. This legal doctrine, inherited from English common law, reflected the historical view that marriage gave husbands unlimited sexual access to their wives. The 1983 reforms specifically eliminated this exemption, making it clear that sexual assault could occur within marriage.

 

 

How indecent assault was defined under the old Criminal Code

The link between indecent assault and sexual assault

Understanding the connection between historical indecent assault and modern sexual assault becomes crucial for anyone dealing with historical charges or trying to understand how the law has evolved. The behaviors that were prosecuted as indecent assault before 1983 would generally be charged as sexual assault under today’s legal framework.

The old indecent assault provisions covered unwanted sexual touching and contact that didn’t meet the narrow definition of rape that existed at the time. This included a wide range of sexual behaviors: inappropriate touching of intimate body parts, forced kissing, sexual touching over or under clothing, and other sexual contact that occurred without consent.

The legal threshold for indecent assault was generally lower than for rape, which required proof of sexual intercourse specifically involving penetration of a female by a male. This meant that many serious sexual offences that would be considered sexual assault today were charged as the lesser offence of indecent assault under the old system.

The courts interpreted “indecent” broadly to include any sexual touching that violated social norms and occurred without consent. However, the focus on “indecency” often led to problematic legal analysis that examined the victim’s behavior and character rather than simply determining whether they had consented to the sexual contact.

One significant difference between the old and new systems involves how consent was analyzed. Under the indecent assault framework, courts sometimes considered factors like the victim’s previous sexual history, their relationship with the accused, and their behavior before and after the incident in ways that would not be permitted under modern sexual assault law.

 

Examples of what used to be charged as indecent assault

The range of behaviors prosecuted as indecent assault under the old Criminal Code was quite broad, encompassing many situations that would clearly constitute sexual assault under today’s legal framework. Understanding these examples helps illustrate both the continuity and the important changes in how Canadian law approaches sexual violence.

Common examples of indecent assault included unwanted sexual touching in various contexts: a supervisor inappropriately touching an employee, a teacher making sexual contact with a student, a stranger groping someone in public, or a family member engaging in sexual touching without consent. The charge also applied to situations involving forced kissing, inappropriate touching during what might have appeared to be consensual social interaction, and sexual contact that occurred when the victim was unable to consent due to intoxication or other factors.

In domestic contexts, indecent assault charges might involve a husband engaging in sexual touching that his wife didn’t consent to, though the spousal exemption that existed for rape often complicated these cases. The charge could also apply to situations involving intimate partners or dating relationships where unwanted sexual contact occurred.

Medical or professional contexts sometimes gave rise to indecent assault charges when healthcare providers, counselors, or other professionals in positions of trust engaged in inappropriate sexual touching under the guise of treatment or professional interaction.

Cases involving minors were particularly common, as any sexual touching of a child would typically be charged as indecent assault rather than rape unless actual sexual intercourse had occurred. These cases often involved family members, family friends, teachers, coaches, or other adults in positions of authority or trust.

The key element that distinguished indecent assault from other offences was the sexual nature of the contact combined with the lack of consent. However, the legal system’s understanding of consent was significantly more limited than it is today, and many factors that we now recognize as invalidating consent—such as the abuse of authority, intoxication, or psychological pressure—were not always recognized or properly addressed under the old legal framework.

 

 

What law applies today?

Indecent assault replaced by sexual assault

The 1983 reforms through Bill C-127 completely replaced the old system of rape and indecent assault with a new three-tiered sexual assault framework. This change represented one of the most significant reforms in Canadian criminal law, fundamentally altering how sexual violence is understood, prosecuted, and punished.

The new system created three levels of sexual assault: Level 1 (simple sexual assault), Level 2 (sexual assault with a weapon, threats, or causing bodily harm), and Level 3 (aggravated sexual assault). This structure allowed courts to address the full spectrum of sexual violence more effectively than the previous system that relied on rigid distinctions between rape and indecent assault.

Most conduct that would have been charged as indecent assault under the old law now falls under Level 1 sexual assault. This includes unwanted sexual touching, inappropriate sexual contact, forced kissing, and other sexual acts that don’t involve weapons or cause significant bodily harm. However, the penalties for these offences often became more serious under the new framework.

The reforms also made the law gender-neutral, recognizing that both males and females could be victims of sexual assault. This change acknowledged the reality that sexual violence affects people of all genders and that the previous male-female distinctions were artificial and problematic.

Perhaps most importantly, the 1983 reforms eliminated spousal immunity, making it clear that sexual assault could occur within marriage. This change recognized that marriage doesn’t provide consent to all sexual activity and that spouses have the right to refuse sexual contact.

The transition also involved significant changes to evidence rules and court procedures designed to make the legal system more responsive to victims’ needs and experiences. These included restrictions on evidence about the complainant’s sexual history, elimination of requirements for corroboration or immediate reporting, and other reforms aimed at addressing the ways that the old system often re-victimized people who had experienced sexual violence.

 

The current legal definition of sexual assault

Under Canada’s current Criminal Code, sexual assault is defined as an assault committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. While this might sound complicated, it essentially means any unwanted sexual contact or activity that occurs without consent.

The current definition is much broader and more flexible than the old indecent assault provisions. Sexual assault can include any form of unwanted sexual touching, from inappropriate touching over clothing to more serious sexual contact. The law recognizes that sexual violence exists on a spectrum and that even seemingly “minor” unwanted sexual contact can cause significant harm to victims.

Consent remains the central issue in sexual assault cases. The Criminal Code defines consent as the voluntary agreement to engage in the sexual activity in question, and it specifically addresses situations where consent cannot be given or is invalid. This includes situations involving minors, people who are intoxicated, people with certain mental disabilities, and situations involving abuse of trust or authority.

The current law also recognizes that consent must be ongoing and can be withdrawn at any time. Someone might initially consent to sexual activity but then withdraw that consent, and continuing the activity after consent is withdrawn constitutes sexual assault.

Level 1 sexual assault, which covers most conduct that would have been indecent assault under the old law, is a hybrid offence. This means the Crown prosecutor can choose to proceed either summarily or by indictment depending on the seriousness of the case. Maximum penalties range from 18 months imprisonment for summary conviction to 10 years for indictable proceedings.

The modern approach also places much greater emphasis on the impact of sexual violence on victims and recognizes that psychological harm can be just as serious as physical injury. Courts now consider factors like the vulnerability of the victim, the abuse of trust or authority, and the long-term impact of the offence when determining appropriate sentences.

 

 

What if you’re facing a historical indecent assault charge?

Yes, you can still be charged decades later

One of the most shocking discoveries for many people is that you can be charged with indecent assault for incidents that occurred decades ago, even though this offence no longer exists in the Criminal Code for new incidents. Canada has no statute of limitations for indictable offences, including sexual offences, which means charges can be laid regardless of how much time has passed.

This reality reflects the understanding that victims of sexual violence may not be able to report these crimes immediately for a variety of reasons. Some victims may have been children at the time and didn’t understand what happened to them or felt unable to speak about it. Others may have faced threats, feared they wouldn’t be believed, or experienced trauma that prevented them from coming forward.

The absence of time limits means that someone could be charged with historical indecent assault for incidents that occurred in the 1960s, 1970s, or early 1980s, even if the complainant only comes forward today. These charges would be laid under the indecent assault provisions that existed at the time of the alleged offence, not under the current sexual assault framework.

However, the prosecution of historical cases involves significant complexities. The criminal law that was in place at the time of the alleged offence is the law that applies, which means prosecutors must prove the elements of indecent assault as they were defined decades ago rather than applying modern sexual assault definitions.

This creates interesting legal situations where someone might be charged with an offence that no longer exists, under legal standards that have since been replaced, while being prosecuted in a modern court system with contemporary evidentiary rules and procedures.

The practical impact is that people facing historical indecent assault charges are dealing with the full weight of the modern criminal justice system, including the possibility of significant jail time and the creation of a criminal record, based on legal standards and definitions that may have been quite different from today’s understanding of sexual violence and consent.

 

What the Crown needs to prove

Understanding what the prosecution must prove in historical indecent assault cases becomes crucial for anyone facing these charges or trying to understand how these cases work. The Crown’s burden of proof follows the legal standards that existed when the alleged offence occurred, which can create significant differences from modern sexual assault prosecutions.

For historical indecent assault charges, the Crown must typically prove several elements beyond a reasonable doubt: that the accused intentionally touched the complainant in a sexual manner, that this touching was “indecent” according to the community standards of the time, and that the touching occurred without the complainant’s consent.

The “indecency” element, which doesn’t exist in modern sexual assault law, required the Crown to show that the sexual touching violated the social and moral standards of the community at the time the offence allegedly occurred. This created a more subjective standard than exists under current law and often led to problematic analysis that focused on social morality rather than consent and harm.

Consent under the old law was often analyzed differently than it would be today. The legal system’s understanding of consent was more limited, and factors like the relationship between the parties, the complainant’s age and experience, and the circumstances surrounding the incident might have been considered in ways that wouldn’t be appropriate under current legal standards.

However, one of the complexities of historical prosecutions is that while the substantive law of the time applies, some modern evidentiary and procedural protections may also apply. This means that while the Crown must prove the old offence of indecent assault, they may need to do so using evidentiary rules that are more protective of complainants than existed at the time.

The Crown must also overcome the significant challenges that arise from the passage of time. Physical evidence is rarely available in historical cases, witness memories may have faded, and other forms of corroborating evidence may have been lost or destroyed. This often means that historical cases rely heavily on the testimony of the complainant and the accused, making credibility assessments central to the outcome.

 

Challenges in historical sexual offence cases

Historical indecent assault cases present unique challenges for all parties involved, from prosecutors and defence lawyers to complainants and accused individuals. The passage of time creates evidentiary problems that don’t exist in contemporary cases.

Physical evidence is rarely available in historical cases, as DNA evidence, medical records from the time of the incident, and other forensic evidence have typically been lost or destroyed. This means that cases often depend entirely on witness testimony, creating situations where the case becomes one person’s word against another’s.

Memory issues create additional complications. Witnesses may have died, moved away, or simply forgotten details about events that occurred decades ago. Even when witnesses are available, their memories may have faded or been influenced by subsequent events, conversations, or publicity about the case.

Alibi evidence presents particular challenges for accused individuals. Someone accused of an offence that allegedly occurred thirty years ago may have no way to prove where they were or what they were doing at the time in question. Work records, travel documents, photographs, and other evidence that might establish an alibi have typically been discarded long ago.

The legal framework itself creates complications because lawyers and judges must apply legal standards that may be unfamiliar and that have been superseded by modern law. This requires specialized knowledge of historical legal provisions and how they differ from current law.

These complexities often require extensive investigation involving private investigators, multiple lawyers, and various experts. The costs and time involved in properly defending historical cases can be substantial, creating additional stress for accused individuals who may be dealing with charges that fundamentally disrupt their lives decades after the alleged events.

The impact on families and communities can also be severe. Historical charges often involve people who have built lives, careers, and families in the decades since the alleged offences. The publicity and stress associated with these charges can affect not just the accused individual but also their spouses, children, employers, and entire communities.

 

 

How Kruse Law Firm can help

At Kruse Law Firm, we understand that historical indecent assault charges represent some of the most complex and challenging cases in criminal law. These cases require not only detailed knowledge of historical legal frameworks but also sophisticated investigation techniques and strategic thinking about how to address the unique challenges that arise when prosecuting or defending decades-old allegations.

Our approach to historical sexual offence cases begins with thorough investigation of the legal and factual context surrounding the allegations. We examine the specific legal provisions that were in place at the time of the alleged offence, analyze how these provisions were interpreted by courts, and develop strategies that address both the historical legal framework and the modern procedural context in which these cases are prosecuted.

We recognize that the passage of time creates both challenges and opportunities in historical cases. While physical evidence may no longer be available, we work diligently to identify and locate witnesses, reconstruct the historical context of the allegations, and develop evidence that addresses the specific legal elements that the Crown must prove under the historical legal framework.

Our extensive experience with sexual offence cases gives us valuable insight into how these charges are prosecuted and what approaches tend to be most effective with specific Crown prosecutors and judges. We understand the specialized procedures and evidentiary rules that apply to sexual offence cases, and we know how to navigate the intersection between historical legal standards and modern procedural requirements.

We also understand that historical sexual offence charges affect more than just the immediate legal issues. These cases can devastate families, careers, and reputations, often affecting people who have built lives and established themselves in their communities over the decades since the alleged events. Our approach considers the broader impact of these charges and works to minimize disruption while ensuring vigorous defence of our clients’ rights.

When clients face historical charges, we investigate thoroughly and work to expose weaknesses in the Crown’s case while building comprehensive defence strategies that address the specific challenges of historical prosecutions. When evidence or circumstances support resolution strategies that minimize long-term consequences, we work to achieve outcomes that allow our clients to move forward with their lives.

Our representation philosophy recognizes that historical sexual offence cases operate in a complex legal and social environment where decades-old allegations are evaluated using modern investigative techniques and contemporary understanding of sexual violence. We believe in holding the Crown to their burden of proof while ensuring that our clients receive fair treatment under the legal standards that apply to their specific situations.

 

 

Frequently asked questions

Can I still be charged with indecent assault even though it’s no longer a crime?

Yes, you can be charged with historical indecent assault for incidents that allegedly occurred before January 4, 1983, when this offence was replaced by sexual assault. Canada has no statute of limitations for indictable offences, which means charges can be laid decades after the alleged incident. The charge would be laid under the indecent assault provisions that existed at the time of the alleged offence, not under current sexual assault law.

 

What’s the difference between historical indecent assault and current sexual assault charges?

The main differences involve the legal definitions and standards that apply. Historical indecent assault required proof that the sexual touching was “indecent” according to community standards of the time, while modern sexual assault focuses on whether the sexual contact violated the complainant’s sexual integrity. The penalties and available defences may also differ, as historical charges must be prosecuted under the legal framework that existed when the alleged offence occurred.

 

How do courts handle evidence in historical indecent assault cases?

This is one of the most complex aspects of historical prosecutions. While the substantive law from the time of the offence applies, some modern evidentiary protections for complainants may also apply. Physical evidence is rarely available in historical cases, so these prosecutions typically rely heavily on witness testimony. The passage of time creates significant challenges for both the Crown and the defence in terms of locating witnesses and establishing what happened decades ago.

 

What should I do if I’m contacted by police about a historical indecent assault investigation?

Contact a criminal defence lawyer immediately, before speaking with police or providing any statements. Historical sexual offence investigations are extremely serious and can result in criminal charges that carry significant penalties including imprisonment and a permanent criminal record. These cases require specialized knowledge of both historical legal frameworks and modern investigative techniques. Early legal representation is crucial for protecting your rights and developing an effective defence strategy.

 

Can historical indecent assault charges affect my current employment or professional licencing?

Yes, being charged with or convicted of historical indecent assault can have the same impact on employment and professional licencing as any other criminal charge. Many employers conduct background checks that would reveal criminal charges or convictions, and professional licencing bodies often require disclosure of criminal matters. A conviction would create a permanent criminal record with all the associated consequences, regardless of when the alleged offence occurred.

 

How long does it typically take to resolve historical indecent assault cases?

Historical sexual offence cases often take significantly longer to resolve than contemporary criminal cases due to their complexity. The need for extensive investigation, the challenges of locating witnesses and evidence from decades ago, and the legal complexities involved can extend the court process considerably. The timeline can vary significantly depending on the specific circumstances of the case, the evidence available, and whether the matter proceeds to trial or is resolved through plea negotiations.

 

 

At Kruse Law Firm, we understand that sexual assault charges, whether historical or contemporary, can fundamentally alter your life and affect every aspect of your future. Our approach combines specialized knowledge of sexual offence law with practical understanding of how these sensitive cases unfold through Ontario’s criminal court system.

We provide comprehensive sexual assault defence services through our offices across Ontario. Our Toronto sexual assault lawyers serve clients throughout the Greater Toronto Area, while our Kitchener sexual assault lawyers provide representation throughout Waterloo Region. For clients in Southwestern Ontario, our London sexual assault lawyers offer local knowledge of regional court procedures, and our Windsor sexual assault lawyers serve clients throughout Essex County and the border region.

Our comprehensive sexual assault lawyers in Ontario practice provide detailed guidance on defending against all types of sexual offence charges, including the unique challenges presented by historical allegations involving outdated legal frameworks like indecent assault.

For immediate consultation regarding sexual assault charges or historical sexual offence matters, contact Kruse Law Firm. Early legal intervention can mean the difference between a manageable situation and consequences that affect the rest of your life.