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Domestic Assault & Domestic Sexual Assault – How the Law Applies
Posted on March 17, 2021
How Does Sexual Assault Apply In A Relationship?
Sexual assault charges can be extremely complex, especially when you’re in a trusted relationship with the complainant. The Canadian legal system views criminal sexual allegations and domestic assault very seriously.
Can you face sexual assault charges with your domestic partner? What do you do when you’re currently facing charges of domestic sexual assault?
What Is Domestic Abuse & How Is It Different From Sexual Assault Or Assault?
Domestic abuse refers to any verbal, emotional, or physical abuse within an intimate or domestic relationship. These domestic relationships include someone you’re dating, boyfriends/girlfriends, family, and common law or married partners. Domestic abuse does not necessarily involve physical abuse but can consist of the threat of assault, coercion, and also sexual abuse. The Criminal Code does not have a specific section on domestic abuse. However, the court does not treat it like a regular assault charge.
The Canadian justice system does treat domestic sexual assault and assault more seriously than regular assault for a variety of reasons. Domestic abuse is a widespread issue across Canada. When you do not deal with domestic abuse properly, it has a high chance of escalating. Additionally, the psychological effects that domestic abuse can have on children in the home are quite severe. Therefore, the justice system views these offences very seriously.
If you are currently dealing with criminal charges associated with domestic assault, you must seek qualified legal help so that you can obtain the proper defence and/or mitigate the risk you are facing.
Can I Sexually Assault My Domestic Partner?
Many people are under the impression that sexual assault within the confines of marriage is less serious than common assault. This is simply not true, and you can face severe penalties if convicted. If your domestic partner is currently pursuing charges against you, you must immediately speak to a criminal defence lawyer.
In the past, when spousal rape or sexual assault of an intimate partner happened, the accused could only face charges for assault, indecent assault, or assault causing bodily harm. These charges were much considered less serious and carried less severe sentencing and fines. However, Bill C-127 was passed in 1983 and made sexual assault against one’s domestic partner an indictable offence. You can face charges for aggravated sexual assault if you cause physical harm during the assault.
Simply put, regardless of your relationship with the complainant, you can face serious criminal charges for sexual assault. In fact, the court views these charges as more serious. Especially depending on the severity and frequency of the alleged abuse within your relationship. Also, the extended psychological and emotional trauma the complainant might have faced during this time can be taken into account.
Preparing A Defence Against Domestic Assault
When you prepare a defence for a domestic assault case, it is essential that you find an experienced criminal defence lawyer. Finding a lawyer that has experience in defending sexual assault cases is crucial. A lawyer that regularly defends domestic sexual assault cases has experience with various defence strategies and will be able to find the best possible outcome for you.
There are many ways to approach defending a domestic sexual assault case. Mainly it depends on the particulars involved in your case. Your defence lawyer will be able to help you decide what the best line of defence is for your case.
Firstly, the Crown prosecutor has the burden to prove that the assault happened without consent. In some instances, we may argue that the complainant agreed to participate in the sexual intercourse. The judge may find that the Crown has failed to prove there was no consent in this case.
Self-Defence In Non-Sexual Assault Allegations
You can make a self-defence argument in certain non-sexual assault cases. However, you must meet the following criteria to make a successful self-defence case:
- The Complainant Used Force Against You. Or, You Had Reasonable Grounds To Believe That There Would Be Force Used Against You.
- You Responded To The Threat With The Intention/Purpose Of Protecting Yourself From Threat Or Force
- Your Response Was Reasonable In The Circumstances You Were Facing
When the court is considering what is reasonable during those circumstances, they will consider the following factors in their decision:
- What The History Is Between The Complainant & The Accused
- Was Either Party Under The Influence
- Size, Age, Gender & Physical Capabilities Of Both Parties.
- Were There Other Ways To Respond To This Situation
- Prior Force Events Within The Relationship
- What Was The Exact Nature Of The Force Against The Accused
- Was The Responding Force Proportional To The Initial Force
Your criminal defence lawyer will be able to determine the best defence to pursue depending on the specific circumstances of your case.
Criminal Charges For Domestic Assault
When you are charged in a case of domestic assault, the charges can range from fines to jail time depending on the specifics of the case. For cases that involve sexual assault or assault causing bodily harm, you can be facing a maximum of 10 years in prison. However, in cases where there is aggravated assault against the complainant, you can face up to a maximum of 14 years in prison.
If you are currently being charged for domestic assault, contact our qualified team of criminal defence lawyers today. We are serious lawyers that defend serious accusations. Don’t take chances with your freedom. Let us defend you.