Sexual Assault

What is sexual assault?

Sexual assault is one of the forms of sexual violence that exists in Canadian criminal law. Three categories of sexual assault exist under Canadian Law today. As explained by Somerville and Gall (2013), these include:

1. “Basic sexual assault (ie, sexual touching or sexual intercourse without consent) punishable by up to 10 years' imprisonment;”
2. “Sexual assault with a weapon or threatened violence, punishable by up to 14 years in prison;”
3. “Aggravated sexual assault, in which the victim is wounded or disfigured, punishable by up to life imprisonment.”

Section 273.1 of Canadian Law defines “consent for the purposes of the sexual assault offences” as “the voluntary agreement of the complainant to engage in the sexual activity in question” (Government of Canada, 2021). The same section of the law lists the following situations where consent is not possible:

• “Where the agreement is expressed by the words or conduct of a person other than the complainant;”
• “Where the complainant is incapable of consenting to the activity;”
• “Where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;”
• “Where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;” “Where 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.”
• More information about situations in which a person may be considered incapable of consenting to sexual activity can be found under our definition of consent.

How does the law work for victims/survivors?

The offence of sexual assault is broad enough to encompass “everything from an unwanted kiss on the cheek [to] rape of a stranger” (Davison, 2016). However, it is notoriously difficult to get convictions in sexual assault cases. Moreover, going to court tends to be an emotionally difficult process for victims (Sheehy, 2014).

Do universities define sexual assault the same way the law does?

• University SV/SA policies in Nova Scotia tend to define sexual assault very similarly to Canadian law. For example, the definition of sexual assault that appears in the Mount Saint Vincent University Policy Against Sexual Assault reads as follows:
  • “Any sexual activity without consent, including kissing, fondling, touching, oral sexual contact, condom stealthing, or anal, vaginal or other forms of contact or penetration, without consent. Sexual assault may be committed by a person of any gender against a person of any gender, regardless of sexual orientation, gender identity or expression, or relationship status” (Mount Saint Vincent University, 2019, p. 3).
• Some university SV/SA policies address sexual violence, which is a broader category than sexual assault (e.g., Cape Breton University, 2016). Others focus on sexual assault specifically (e.g., Mount Saint Vincent University, 2019).
• Sexual violence includes sexual assault as well as a variety of other offenses such as sexual cyber harassment and stalking.
• Where forms of sexual violence other than sexual assault are not covered under a university SV/SA policy, those forms of violence are likely to be covered under other policies such as:
  • Student codes of conduct
  • Harassment & discrimination policies
  • Policies governing computer use