What are the three best defenses to a sexual assault charge? It breaks down this way. Every case really breaks down this way. Number one, a client might say to us, look, it didn't happen. I did not have any sexual activity with that person, whether my clients a man or a woman and we do represent women charged with sexual assault as well, just simply didn't happen. So, the crown now has to prove beyond reasonable doubt that the sexual activity did happen. So essentially, in that particular case, you'd be the defence lawyer would be cross examining the complainant to show that they're not credible and reliable, that they're making this up and perhaps advancing motives to lie. You know, these things happen occasionally, and may, not, every complainant is telling the truth. I'm sure many, if not most, or if not very high, high percentage are but believe it or not, there are false complaints made of sexual assault in Canada. There's no question about that. So, the second is that the second defence is that look, the complainant consented to the activity. They communicated verbal consent, they communicated consent with body language with enthusiastic participation. So, in that particular case is the same thing. You're going to be cross examining the complainant to show that they're not credible, reliable, to show that they in fact consented and that they're making this up and might have some motives to lie. In another video, I talked about the importance of establishing motives to lie, it’s not a requirement, but any good strategy to a sexual assault certainly should at least explore whether there are motives to lie. So, in that particular case of lack of consent, the Crown has to prove beyond a reasonable doubt that the complainant did not consent. So, consent has to be proven beyond reasonable doubt that they did not so that's a very heavy burden. The Crown has that burden. If there's any reasonable doubt about consent, then then the accused will win the trial. Now the third is a very tricky area. It's an it's a defence that can work. It's tricky. It's it happens in some cases and it's whether the accused in this case the defense has the accused has an honest but mistaken belief in consent. In other words, they were honestly subjectively thought the complainant was consenting based on objective evidence based on what the complainant was communicating to some fashion but somehow, they are mistaken Now, let me give you an example. An easy example of that. So, two individuals are in a bedroom and they are kissing for example, and let's say the complainant wants to do that their consenting, they say yes that the activity proceeds. It's maybe as a first date and the complainant in their own mind does not want to proceed much past that. Maybe they're consenting to breast touching they communicate that. Now. Let's say it proceeds past that. So, the things incrementally precede ultimately cue sexual intercourse. And let's assume for a second that the facts at trial are actually established not actually established that the complainant was still participating, was communicating with body language and her or him because there are women who have been charged with sexual assault communicate to the to the accused that they were consented because consent just doesn’t have to be communicated by words, it can be communicated clearly by body language as long as it's very clear. And, but despite the fact they are communicating it, they were in their own mind not wanting to do it. So that's not consent if that don't have it in their own mind. But they communicated consent. So, the accused then has an honest belief that they're consented based on objective facts, which is the participatory actions, but they're mistaken because the complainant in her own mind, the judge would find in her own mine, she didn't want to consent but she did these actions. That does happen. It's uh, not as common as the other three but in many trials that have been done. Both defences are often left with a jury or judge and I've won cases based on both in different situations. So, the third one's a little bit tricky to pull off that the first two are the most common ones. And usually when an accused version events and a complainant’s version of events are diametrically opposed, in other words, the accused of saying full participation and the complainant says no, no, no, no. I was resisting at all times. It's impossible to splice together version events of honest mistaken belief consent in that. you because the facts are diverse diametric pauses so that's, that's either consent or no consent. Honestly, mistaken belief occurs when the complainant starts admitting some facts about participating a little bit. That can be spliced together with the accused version, but the complainant said I didn't want it but I kind of acquiesced a bit. Yeah, I did continue, but I didn't want to and there was no verbal consent. So, it's a tricky area of law. But those are the three best ways to defence and usually any trial I've ever been involved in which is a lot of my over 33 years both as an initially as a prosecutor for four years. And defence counsel, one of those areas has emerged as the defense sometimes both consent and honest that mistaken belief in the center also left with the jury or judge as well that that situation does occur. So those are the three best defences for sexual assault matters.
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