How do I get a sexual assault charge dropped?

How do I get a sexual assault charge dropped?

Being charged with sexual assault can be potentially life-altering for those accused. As a criminal defence lawyer, I have witnessed first-hand the severe consequences for people who have had allegations made against them –– even in situations when the charges are later dropped.

While wholly false accusations of sexual assault are rare, it does happen, and can ultimately ruin a person’s reputation and livelihood. National policing data compiled by The Globe and Mail in 2017 revealed that one of every five sexual-assault allegations in Canada is dismissed as baseless and, therefore, unfounded. What’s more common in these types of cases is a dispute over the facts of what happened between the complainant and the accused.

Sexual assault and consent

A sexual assault is any act in which a person sexually touches another without their consent, or if there is coercion of physical violence. It can also be touching that is sexual in nature, either in a specific area of the body or touching for sexual gratification.

Sexual assault includes unwanted kissing or groping over the clothes, consensual sex with someone too young to consent, sexual activity with someone who is asleep or unconscious, sexual activity with someone unwilling, and disciplining a child by striking them below the waist.

In Canada, sexual assault is a broad category where infractions can range from touching someone’s breast or buttocks to full-blown rape. In the latter scenario, the accused will almost certainly go to trial, but in instances on the lower end of the scale, such as minor touching, it’s often possible to have charges reduced or discharged entirely, provided specific conditions are met.

Understanding what constitutes consent in a sexual context is a question many people struggle with in the #MeToo era. According to the Canadian Women’s Foundation, 96 per cent of Canadians believe all sexual activity should be consensual, but only one in three people understand what it means to give consent.

From a legal perspective, consent does not have to be spoken, but it must be clear, voluntary and expressed by the words, actionsor body language of the person who is giving it. It doesn’t mean someone has to ask their partner’s permission before every physical contact that could lead to sex. Consent exists if your partner allows you to make contact, without being forced or coerced, of course.

The Criminal Code states that the accused must take reasonable steps to determine consent, but they are not required to take “all” reasonable steps. Apprehended consent can often be established by the words, conduct and body language of the complainant that indicate a willingness to engage in sexual activity.

Establishing intention is important

Can sexual assault charges be dropped? It depends on the facts of the case. Each one is different, but I have represented numerous clients where the charges have either been dropped altogether or reduced to lesser offences.

I was successful in having sexual assault charges reduced to assault with a client who had been charged after helping a fellow cyclist up a hill by pushing on her body, which she felt was a violation.

The challenge, in that case, was to prove exactly where on her body he touched her –– he claimed it was in the hip area, she said it was her buttocks –– and what his intention was in doing so. He maintained he had no intent to touch her sexually, and that he was doing what he would normally do in the course of a bike race, which was to help a fellow cyclist who’s struggling.

I spoke with my client to figure out his intention so that I could communicate that to the Crown prosecutor and negotiate on his behalf. I had to demonstrate that there was no sexual gratification or touching for a sexual purpose. 

To get those charges dropped, he had to express remorse, accept responsibility and acknowledge that his actions were inappropriate in the circumstances, clearly understanding that it’s not appropriate to touch another person without them knowing you’re going to and having their consent. 

The complainant agreed to a form of restorative justice, something as many as one in four victims of sexual assault is interested in, which involved him attending educational programming to ensure he fully understood the gravity of his actions.

Varying degrees of sexual assault

Under Canada’s Criminal Code, there are three levels of sexual assault charges: A level 1 sexual assault is one that is committed when the sexual integrity of the victim is violated. Level 2 involves “sexual assault with a weapon, threats to a third party or causing bodily harm.” Level 3 is aggravated sexual assault, where the person committing the sexual assault wounds, maims, disfigures or endangers the life of the complainant.

In level 1-type cases involving minor sexual touching, there’s a possibility of having charges dropped or reduced, but the chances of level 2 and 3 charges being dropped are much more difficult. The issue then becomes how to defend an actual rape.

You’ve been charged –– now what?

If you have been wrongly accused or if your partner consented to having sex, but later filed a complaint that resulted in you being charged with sexual assault, you need a criminal defence lawyer with experience handling these types of challenging cases. 

The Crown considers sexual assault one of the worst types of offences. Your chances of beating a sexual assault as a self-represented litigant are almost zero.

Evidence and procedural rules for sexual assault cases are very complicated. It’s vital to have a legal advocate with a thorough understanding of the rules to present your case clearly and concisely.

The courts will consider several factors when determining if an assault was of a sexual nature: the part of the body touched, the nature of the contact, the situation in which the contact occurred, the words and gestures accompanying the act, and if there were any threats made during the assault.

Defences to a sexual assault charge

Two primary defences can counter a charge of sexual assault: innocence (the defendant’s claim that there was consent to sexual relations), and an honest but mistaken belief in consent (the defendant’s assertion that consent was given). 

An innocence defence is when the defendant asserts that there was consent to sexual relations. For example, two people have a sexual encounter and the next day, someone feels bad and calls it rape. It’s unfortunate, but I have seen this happen.

An honest but mistaken belief in consent defence is relied on in cases where it can be demonstrated that the accused person took reasonable steps in the circumstances to ascertain that consent was given. S/he must explain to a judge or jury how and why they came to believe the complainant was consenting.

It would not be an appropriate defence if the only arguments were, “She didn’t say no,” or “She didn’t stop me.” There has to be more: physical actions or verbal conversations that indicate consent was given.

Except in extreme cases where there’s sufficient evidence to prove that an accused was inebriated to the point of being in a robotic state where s/he was unaware of his/her actions, being drunk or high is not a defence. Neither is a complainant’s passivity. 

What happens in a trial?

The majority of sexual assault cases are not settled before going to trial, and those who are accused have to endure 12-18 months of restrictions and uncertainty before their fate is decided.

All of my clients are released with conditions, which means that depending on the charge and their criminal record if one exists, they are forbidden from having contact with the complainant, they may have to live with a surety (a person who promises to a judge to supervise them while they are out on bail) and are confined to their homes, except to work. Many are suspended, put on leave or fired based on the outstanding charges.

They live with chronic stress and worry about their future, so I encourage them to call me with questions and I provide information that hopefully helps to lower their anxiety levels.

Most of my cases are of the “he said, she said” variety, and are decided on the credibility of the parties. I’m often successful because I’m able to poke holes in the complainant’s testimony through cross-examination if, for example, their account of what happened is much different from what they told the police, or it’s changed over time.

As a criminal defence lawyer, there are many rules I have to abide by when questioning the complainant in court. I can’t, for instance, invoke rape myths to discredit a complainant’s character. I have to rely solely on the evidence and testimony of my client, the complainant, witnesses and experts.

When a client hires me, the first thing I do is ask them for a narrative of what happened, which sometimes involves checking texts, cellphone records and the like so I have a clear picture of exactly what’s transpired as well as the timeline.

In one recent case, my client was charged with sexual assault involving his girlfriend’s daughter, who he had spent the day with while she was off school. The girl claimed he touched her inappropriately while at his home, but my client vehemently denied anything happened –– or that they ever went to his house.

We were able to recreate the events of that day based on his account and by referencing the people and places he visited with the girl, along with text messages and phone calls to various witnesses.

At trial, the girl testified that my client brought her to McDonald’s and then back to his home where he assaulted her. During cross-examination, I asked the girl if my client took her to his mother’s house at any point and she said he did not. This was critical as my client had told me that the pair went to his mother’s house in the afternoon to use the bathroom. My client’s mother was ready to testify that although she was not home at the time, it was obvious the girl had been there as her muddy shoeprints were on the freshly cleaned floors.

After the first day of what was meant to be a five-day trial, the girl admitted she lied. I was able to negotiate with the Crown to withdraw charges, providing my client entered into a peace bond, agreeing to have no contact with the girl.

DNA and other forensic evidence

In some cases, DNA and other forensic evidence play a key role in uncovering the facts. In January, I represented a client who was charged with sexually assaulting a young girl. Upon reporting the incident to her mother, the girl was taken to the hospital where medical staff performed a sexual assault forensic exam to collect possible DNA evidence.

Unlike what you see on TV, DNA analysis takes months and the result are not always clear-cut. In fact, the analysis only determines the probabilities about whether or not someone’s sample matches the profile from a crime scene. In this case, the report showed that the DNA collected during the forensic exam was from a male, but there wasn’t enough to determine who it belonged to, so the results were inconclusive.

Consequences of being convicted

The consequences of a sexual assault conviction can be crushing, as they include jail time, a criminal record, social stigma and limitations on international travel. Those convicted of serious sexual assault offences may also have to register in the National Sex Offender Registry. 

The law gives judges some latitude in deciding the most appropriate punishment based on the facts of each case, and the maximum sentence depends on the crime. 

For example, with offences at the lower end of the scale –– sexual assault tried as a summary conviction offence –– you could get six months in jail and a $2,000 fine. A person found guilty of aggravated sexual assault could spend the next 25 years behind bars.

Possible punishments include:

• Up to 10-years in prison
• Up to 3 years of probation
• Inclusion in the National Sex Offender Registry
• Surrender of a DNA sample to the National DNA databank
• Inability to possess or have weapons (including firearms)
• Inability to attend public park or pools, schoolyards, playgrounds, or any other place where children under 16 can be expected to be (if the victim is under 14 years old)

The current landscape

The latest figures from the federal Department of Justice, show there were 24,672 incidents of sexual assault reported by police in 2017.

For the 2016/2017 fiscal year, 42 per cent of all sexual assault case decisions (levels 1, 2, and 3) in adult criminal court resulted in a finding of guilt. The percentage of sexual assault cases that resulted in a guilty decision has remained stable over the past 10 years. For the 2016/2017 fiscal year, 59 per cent of accused found guilty of sexual assault (levels 1, 2, and 3) in adult court were ordered a custodial sentence, and 19 per cent were ordered probation as the most serious sentence.

How can I help you?

Facing allegations of sexual assault can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.