Sexual Assault Flashcards
R v Chase
Facts: D entered home of 15 y/o A, seized A around shoulders and arms, and grabbed her breasts. He tried to grab for her privates. A and A’s brother made telephone call and A left. D threatened to tell people that she raped him.
TEST: difference between simple assault and sexual assault is if the circumstances are of a nature that violate the SEXUAL INTEGRITY of the victim
Held: D guilty of SA. Viewed objectively, in light of all circumstances, it is clear that the conduct of the respondent in grabbing the complainant’s breasts constituted an assault of a sexual nature.
R v Pappajohn
Facts: Realtor and client went to lunch then back to his house; realtor claims she was raped completely against her will, appellant claims only coy objection. Jury accept victim’s facts.
Holding: Defence of mistaken belief in consent only available with evidence or support other than the appellant. Can’t be just he said she said.
R v Sansregret
Facts: Victim’s ex sneaks into her house and threatens her. She calms him down, has sex with him, then reports a rape, but backs down when his parole officer asks her to. He sneaks back in again, threatens again, she has sex again. Trial judge says ex holds unreasonable but sincere belief in consent.
Holding: Where the accused is deliberately ignorant the law presumes knowledge, there was no room for the operation of this defence.
R v Ewancuk
Facts: Trailer interview gone sexual
Held: Overturned, D guilty. No such thing as implied consent for sexual touching. Accused cannot say they thought they had consent unless she actively communicated consent
R v Darrach
Facts: Appellant submits that “ it is not a defence that the accused believed there was consent where the accused did NOT take reasonable steps to ascertain that the complainant was consenting “ should be void for vagueness is in breach of the Charter by:
o Creating an objective standard for the accused conduct contrary to PFJ s.7
o In breach of s11 by placing an onus on the accused to testify that he took reasonable steps
Holding: Not a breach of Charter to require accused to testify he took reasonable steps to obtain consent.
R v AJ
Facts: Man chokes woman sexually, she passes out and wakes up with a dildo in her ass.
Held: Conviction restored. An individual must be conscious throughout the sexual activity in order to provide the requisite consent. Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. Consent must be an ongoing state of mind.
R v Cuerrier
Facts: Lied to first partner about HIV status, she would not have consented had she known, but continued having unprotected sex after knowing. Failed to disclose status to second partner, she would not have consented had she known.
Cory Maj Holding: The existence of fraud should not vitiate consent unless there is a significant risk of serious harm.
Concur LHD: Any deception that would change consent is an act of fraud for 265
Concur McLachlin: Thinks Cory and LHD go too far, simply wants to reverse Clarence so deception about STDs giving rise to serious risk or probability of infecting the complainant. (Basically the three Cory categories before his holding). Open to other categories but that’s for another day
R v Mabior
Facts: D had sex with many women, sometimes without condoms, and lied: said he had no STDs. D is HIV positive but low viral count. 8 of 9 women would not have had sex with him if they knew HIV.
Held: Cuerrier affirmed, appeals allowed in part. Three charges of low load, no condom are returned. One charge of unsupressed (but still low) viral load and wearing condom remains acquitted (negates realistic risk). If the HIV-positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us.
