Domestic Sexual Assault charges under Section 271 of the Criminal Code of Canada

Sexual assault charges are often specifically classified as domestic or intimate partner violence offences (IPV) in Ontario.

Sexual assault cases where the accused and the alleged victim are married, dating, or have been in a relationship in the past will be classified as domestic intimate partner violence (IPV) offences by all Crown Attorneys and courts in Ontario. These policies apply equally to all forms of non-platonic relationships regardless of sexual orientation (straight, gay, lesbian, bi etc.).

This “domestic/IPV” distinction matters because the police and Crowns are directed by government policy to both lay charges and vigorously prosecute them. The prosecution assigned to the case will be the same Crowns that specialize in other domestic cases. At some courthouses, entire courtrooms are dedicated to the prosecution of domestic offences.

Often the accused is blindsided by the police laying charges and the substantial consequences if they are later found guilty in court. The alleged victim may also be surprised that their statements to the police resulted in such serious charges being laid against their spouse though in other cases having charges laid was their intention.

All forms of sexual assault charges in Canada can result in a lengthy jail sentence, criminal record, and sex offender registration even for a first time offender.

Sexual assaults differ from some other domestic violence cases because the nature of the offence is always considered extremely serious. Both the Crown and the courts often will seek a lengthy jail or prison sentence for those found guilty along with a permanent criminal record and sex offender registration.

While the case is classified as domestic by the Crown and all Ontario courts the accused is still charged under the same Criminal Code provisions as in other sexual assault cases.

The maximum punishment for sexual assault is found in Section 271 of the Criminal Code, which states:

Sexual assault

271 Everyone who commits a sexual assault is guilty of

      (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

      (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Additional penalties are available in cases involving sexual assault with a weapon, third parties, and those causing bodily harm in Section 272. Some aggravated sexual cases, where the victim is wounded, maimed, disfigured or has their life endangered can attract mandatory minimum sentences starting at 4 years and maximum sentences of life in prison (though parole will eventually be possible for such offenders).

What constitutes legal consent in sexual assault cases? What if the accused believes that all sexual activity was consented to?

In cases where the accused admits that sexual activity took place the question for the court is often whether the victim consented to it or not. Consent can never be assumed to be provided even if a couple is married or has a lengthy sexual history with each other.

Consent must always be provided for each and every instance of sexual activity. The court will often have to determine whether consent was given or not based solely on the testimony and statements of the alleged victim. The word of the accused will also be taken into consideration if they choose to speak and/or testify in their defence.

Most couples have a long history of consensual sexual activity in the past which is not at issue but could be relevant in assessing the credibility of the alleged victim if inconsistent statements are discovered by the accused's defence lawyer. While context is important in evaluating the quality and credibility of the evidence, the court will be primarily assessing what happened during the specific incident(s) forming the charges.

It doesn't matter if they had consensual sex for years prior to the allegation being made. All it takes is one incident of sexual activity without consent for the court to find the accused guilty.

The law regarding what constitutes legal consent is found in Section 273.1 of the Criminal Code, which reads:

Meaning of consent

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent (1.1) Consent must be present at the time the sexual activity in question takes place.

While this definition is pretty basic, the Code does give some specific examples of circumstances that the law does not deem to be consent in Section 273.1 (2), which reads:

No consent obtained

273.1 (2) For the purpose of subsection (1), no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(a.1) the complainant is unconscious;

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

To further complicate matters, this list is not exhaustive because Section 273.1(3) clearly states:

273.1(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

This means that even if none of the above noted factors are alleged the complainant can still be found guilty of sexual assault. Practically speaking this means that an accused could be found guilty of sexual assault in cases where the alleged victim “just lays there” or otherwise does not overtly signal a lack of consent to the accused. There does not need to be a clear or obvious lack of consent communicated for a sexual assault to take place.

It is notable that the law also codifies that those who are drunk, high, or otherwise not of sound mind cannot give consent even if it is with someone they are married to or in a relationship with for a long time.

If my wife is asleep and I feel her breasts or buttocks while she is sleeping would this be a sexual assault?

A defendant could be convicted of sexual assault for touching their wife while she is sleeping under Canadian criminal law.

Domestic sexual assault charges resulting from dating or short term relationships

Domestic does not necessarily mean that both parties lived together or were married, common law, or in a long term relationship. Any form of a non-platonic relationship is considered domestic. A first time date, a hook up, friend with benefits, fling etc. leading to a sexual assault claim will all be treated as domestic, intimate partner violence cases. An accused charged with sexual assault after meeting someone from an online dating site for coffee would have their case be classified as a domestic/IPV offence in Ontario.

It doesn’t matter if they just met for the first time that day, if the context of the meeting was anything more than 100% platonic it will be viewed as a domestic case.

Sexual assault charges laid after a call to the police/911 during an argument, visit to the doctor, or conversation with a friend, relative, co-worker etc.

Like most offences, domestic sexual assault charges are usually laid following a police investigation that started with a simple call to 911 or the filing of a police report. It is often the alleged victim that calls the police during an argument, but sometimes a third party such as a friend, relative, doctor, or counsellor makes the initial report.

Once a report is made a police officer specializing in domestic violence cases will be assigned to interview the alleged victim. They may ask questions about past sexual activity including whether any unwanted sexual contact was made during the duration of the relationship. The victim may tell a story about something that happened in the past resulting in charges.

Domestic sexual assault charges stemming from something that happened a long time ago

Sexual assault charges can relate to extremely dated alleged incidents. Sometimes charges date back decades. Many alleged victims are under the false impression that if something is not reported right away that charges will not be laid. This is simply not true at all. There is no statute of limitations for sexual assault criminal charges in Canada.

Since police in Ontario are under policy directives to charge in all incidents of domestic violence that if proven true in court could support a conviction, telling the police unwanted sexual activity occurred many years ago will usually lead to criminal charges.

Historical sexual assaults are also not necessarily viewed with skepticism either as it is accepted that many sexual assault victims will repress what happened or prefer that charges not be laid. They may also be unaware that a statement to the police is all that is needed to charge their husband, boyfriend, ex, etc. It does not matter if no DNA or other forensic evidence is available.

False sexual assault accusations: why innocent people are sometimes wrongly charged with domestic sexual assault.

People are falsely accused of sexual assault for many reasons in domestic cases. Not all sexual assault allegations are true and there are many reasons why people lie about being sexually assaulted. False domestic sexual assault charges can be motivated by the complainant's desire to punish the accused for unrelated grievances and help them gain advantages in family/civil court relating to finances, spousal support, possession of the matrimonial home, and child custody.

While there are many reasons why false sexual assault allegations are sometimes made, here are some of the most common ones:

Vindictive after finding out about cheating or a new relationship after a break up

An alleged victim may fabricate a sexual assault claim against their partner, spouse, or ex after finding out they they are cheating on them or have in the past. Sometimes a false allegation is made after separation when the complainant finds out that their former partner is now in a new relationship with someone else.

Cheating, infidelity, and moving on to a new partner can trigger extremely strong emotions and feelings of loss, pain and devastation. Sometimes these feelings can be described as jealousy but it often goes beyond that. New relationships can provoke extreme anger and a desire to cause pain to their ex.

A person who feels wronged may fabricate a false sexual assault allegation to get back at their former spouse or partner. They may want to hurt them as retribution for being hurt themselves. In long term marriages/relationships a person may feel they have given their best years to their ex only to be stabbed in the back and betrayed. Some people who feel betrayed and disrespected will seek revenge.

Hoping to gain an advantage in family court and/or with the Children’s Aid Society (CAS)

If the accused and victim are married, in a common law relationship, living together, or have children together, disputes may arise over the division of assets, child and spousal support, possession of the matrimonial home, and child custody/access. Once sexual assault charges are laid the accused will have to agree to physically avoid and not communicate with the complainant.

This often means they must move out of the family home and may not be able to share parenting responsibilities as they previously did. Even if such conditions are temporary this may help the complainant in family court because keeping the accused away from the kids may be seen as providing stability. The family court may also want to mitigate potential safety concerns by separating the accused from the complainant and children.

Languages barriers, misinterpretations and misconstrued statements in cases involving immigrants and IRCC applicants

Sometimes domestic sexual assault charges are laid as a result of an accidental statement made by the complainant that may have been misinterpreted. In Ontario, and Toronto/York/Peel in particular there is a large percentage of the population who do not speak English as their first language. For non-native English speakers, words and concepts relating to consent may be misconstrued.

The complainant may have been trying to tell the police that they didn’t really feel like having sex but agreed to it anyway. Whether they gave consent or not at the time may be unclear and lost in translation. The alleged victim may be surprised when sexual assault charges are laid as a result of them describing such accounts to the police since from their perspective they did consent. The behaviour may be considered normal in their culture and country of origin.

It is possible to consent to do something you are not particularly enthusiastic about. The semantics and interpretations can be difficult for native English speakers to comprehend, let alone an immigrant who is speaking English as a second language. While interpreters are used to help alleviate these concerns there is no denying the possibility of things being lost in translation.

Problems with IRCC applications and deportation for sexual assault

Sexual assault convictions often carry sentences greater than 6 months in jail which often means being deported for those who are not Canadian citizens. For someone in the immigration system (student, work permit, PR) a sexual assault conviction carries a very high risk of having to leave Canada and return to their home country (India, China, the Philippines etc.) upon the completion of their jail sentence.

All sexual assault allegations are extremely serious charges and case outcomes (sentences) will always be reported to and considered by IRCC.

False allegations made because the complainant is looking to sue the accused later in civil court

Sexual assault lawsuits can lead to civil court awards of millions of dollars. If an accused is ultimately found guilty in criminal court, the victim can then use that judgment to their advantage in the civil court system to sue the accused for extremely large amounts of money. Since the burden of proof is much higher in criminal court (beyond a reasonable doubt) than in civil court (balance of probabilities or 50/50) having a criminal court find that a sexual assault occurred makes successfully suing the accused much easier.

Since the criminal court system is publically funded the complainant does not have to pay legal fees to obtain such a conviction. The police, Crown, Victims Services/VWAP office, and criminal court system in general is all publically funded. The only exception to this is the accused who usually must pay for their own lawyer to defend themselves against the allegations in court.

Fabricated stories made out of anger after years of discontent or perceived mistreatment

Not all relationships are happy ones. Sometimes people stay together for many years despite not liking (let alone loving) each other anymore. They stay together for convenience, finances, the children, religious/cultural expectations, and myriad other reasons.

Over time such living arrangements may lead to resentment. The alleged victim may feel that they have “put up” with a lot of abuse even if the behaviour wasn’t actually criminal. These strong emotions may taint their recollection of past sexual contact or motivate them to intentionally make a false allegation.

Just because someone gets angry and says mean things does not mean that they are physically or sexually violent, damage matrimonial property (mischief), utter threats, or engage in other forms of criminal behaviour. Unhappy relationships may eventually reach a breaking point where these extreme feelings of regret turn into anger and an opportunistic desire for vengeance.

Complainant upset over alcohol or other substance abuse issues

Just because someone has an alcohol or drug abuse problem does not mean that they engage in domestic violence or criminality. Many people drink to excess or alcoholically and still obey the law. Some people nonetheless feel that such behaviour deserves punishment and this can sometimes lead to false accusations of sexual misconduct.

In some relationships one spouse/partner may feel that such drinking is itself abusive simply because they do not like it. They may wrongly equate alcoholism with actual physical abuse. This can occur whether the accused is a “nasty drunk” or not (drinking alone may be enough). They may grow to hate their partner more and more over time. This anger and resentment can foster into a desire to seek revenge.

Feelings of anger over someone else's drinking combined with an opportunistic desire for vengeance can result in false sexual assault allegations. When combined with the opportunity to gain advantages in the civil and family court system they may claim past sexual activity was not consented to.

A complainant may no longer like/respect/admire their former partner like they once did and their opinion of having had sex with them may now have also changed. As such past activity could be described to or interpreted by the police as having occurred without consent (perhaps saying they just laid there). Charges will be laid, no-contact conditions will be put in place, and if the accused denies the allegations the court will ultimately decide at a trial whether a sexual assault took place or not.

Frequently asked questions about domestic sexual assault charges

Here are some of the questions we receive the most from both those accused of domestic sexual assault and the alleged victims who often do not want their spouse charged and are looking to help them.

I thought a wife couldn’t be forced to testify against their husband in court?

While this does apply to some criminal offences, there is a clear exception to this rule for cases involving allegations of domestic violence. The alleged victim can be subpoenaed and forced to truthfully testify against their spouse under penalty of perjury.

What if I have text messages, emails, voicemails, social media posts etc. that suggest or prove no sexual assault ever occurred?

It is important that the accused retain any and all records that may go to prove their innocence in court. Inconsistent and other exculpatory statements made by the complainant may ultimately be relied on to exonerate someone who is falsely accused.

It should be noted that the federal government recently amended the law to require the defence to apply to the court (judge) in advance of using such records in court for cross examination. Since the Crown is part of this application process, this limits the ability of the defence to utilize the element of surprise to catch a false accuser in a lie. Such text and other messages may still be able to be used to undermine the credibility of the evidence provided by the alleged victim in the event they fabricated or exaggerated their story.

What if the complainant/alleged victim no longer wants to testify?

They can be forced to testify via a subpoena. If they are no longer able to testify (dead, unreachable, etc.) their previously given evidence can still be used in court to convict the accused. This includes statements made to 911, the police at the door, and video/audio recorded statements. Even if the alleged victim later refuses to make a statement at the police station the accused can and will still be prosecuted in most cases.

What if the alleged victim/complainant does not want the accused prosecuted?

Just like other forms of domestic violence allegations, sometimes the complainant no longer wants the prosecution to continue and wishes to have the charges dropped. This may happen after the complainant realizes their partner/spouse may end up going to jail, receive a criminal record, and have to register as a sex offender. They may have had a change of heart or felt their words were misconstrued. Sometimes the victim had no idea telling the police about something that happened years ago would lead to the breakup of their family and potential unemployability of their husband.

Unfortunately, while the complainant is an important part of the case, they are not the decision maker. Complainants wishing to help the accused defend domestic sexual assault charges may choose to create a supporting victim affidavit which is provided to the Crown asking them to discontinue prosecution (drop the case), allow for contact, and/or take a lenient position on sentencing.


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