Question 1

How does the Crown attempt to prove lack of consent in the context of a sexual assault allegation?

Accepted Answer

It is not unusual for the Crown to base its entire case for non-consent entirely on the evidence of the alleged victim of a sexual assault, who is usually called the “complainant.” It may well be enough for the complainant to simply say “no,” when asked, “did you consent to this activity?” to prove the essential element of non-consent. Defence lawyers can then get in trouble with the courts and in turn create trouble for their clients if they allow themselves to invoke certain sexual stereotypes when cross-examining the complainant. For example, the fact that a complainant may have engaged in sexual activity with the accused in the past is simply not a reason to believe that consent was more likely in the present. If a lawyer suggests such a thing, it must be done within the subtle parameters of the emerging law surrounding the culture of sexual assault.

Question 2

Is there such a thing as implied consent?

Accepted Answer

Canadian law does not recognize implied consent. Before consent exists it must be expressly given. In a situation where a complainant has not expressly given consent to sexual activity there is little room to argue that the context of the relationship may have brought with it a “mutual” understanding that sexual activity has been consented to. This doctrine of consent seems sometimes to conflict with ordinary day to day understandings of what is consented to in mature, long-standing and loving relationships. This conflict flows from the strict approach our courts take in analyzing the concept of “consent.”  When longstanding relationships turn sour – navigating through the troubles which sometime arise around what may have been once perceived as consensual activities can be perilous. At such times you need the assistance of lawyers who understand the current culture surrounding sexual consent and who can help you navigate this potentially perilous cultural terrain.

Question 3

If the police suggest a polygraph or lie detector test, should I go along with this?

Accepted Answer

Polygraphs are often used by police to get a suspect to make damaging admissions. If the police suggest you submit to a polygraph so they can decide whether or not to believe you, BE EXTREMELY SUSPICIOUS OF THIS. Contact Hopkins Law for advice on whether to participate in such an investigation. A polygraph interview is very much a part of an ongoing police investigation. In general, the risks outweigh the potential benefits when it comes to polygraph investigations.

Question 4

What is a position of trust and how might that effect sentence upon conviction for sexual assault?

Accepted Answer

A sexual offence involving a child or someone in one’s care or with whom they stand in a relationship of trust is a very serious offence often carrying prison sentences which are akin to mandatory penitentiary sentences. In Alberta, the starting point sentence for a major sexual assault on a person with whom the accused stands in a relationship of trust is three years in the penitentiary. Aggravating or mitigating factors can increase or decrease that sentence but the courts begin the analysis with the assumption that these cases generally call for strict punishment.

Sexual Assault

Common Questions

Contact Hopkins Law for Your Defence