Lesson Plan IX: Sexual Assault

Question 1

Actus Reus of Sexual Assault

Answer 1

The intentional, non-consensual application of force (directly or indirectly) PLUS the violation of the complainant’s sexual integrity.

Crown must prove the absence of consent BARD to prove sexual assault.

Question 2

Is there “implied consent”?

Answer 2

NO

Question 3

Where does consent exist and according to which case?

Answer 3

In the mind of the complainant –> (Ewanchuk)

Question 4

How can consent be vitiated?

Answer 4

1. fraud
2. incapacity
3. if a perpetrator abuses a position of trust or authority

Question 5

Why is the case of Ewanchuk so important?

Answer 5

1. teaches basics of sexual assault & consent
2. there is NO defence of implied consent
3. victim must communicate their consent (words/gesture)
4. breaks down myths/stereotypes

Question 6

What did McLachlin say in the dissent of R v JA?

Answer 6

1. surgical procedures + being unconscious = no consent –> NO because that’s a highly regulated and necessary activity
2. can’t take unconscious friend home from party then cause it’d be assault/kidnapping –> no violation of sexual integrity
3. spouse kisses their partner goodbye = sexual assault? –> does raise an issue there, but ruling would still benefit vast majority of cases

THERE IS NO LOOPHOLE FOR PEOPLE IN RELATIONSHIPS

Question 7

What is the significance of the Barton case?

Answer 7

1. made it so that not even the Crown can ask their own complainant about their sexual history unless they get permission to do so from the court (relates to the Twin Myths)
   - only time this is relevant is if trying to establish Mistaken Belief (were in a prior relationship and body language patterns suggest they would consent)
2. no such thing as broad advance consent –> ie: being a sex worker/on tinder/talked about sexual acts they wanted to do prior does NOT equal consent when you’re together