Sexual Assault

Question 1

Actus reus Sexual Assault

Answer 1

1. Application of force on another person.
   R v Chase: the application of force must violate the sexual integrity of the victim. Objective test: is the sexual or carnal context of the assault visible to the reasonable observer?
   considerations: body part touched, nature of contact, situation om which the assault occurred, words or gestures accompanying the act, all other relevant circumstances
2. Application of force without the consent of the victim.
   265(3)(c) - judicial interpretation of fraud is fraud as to the nature and quality of the act, identity, or where the risk of harm to the victim through sexual contact(e.g. a STD), the accused is under a duty to disclose the risk. the greater the risk the greater the duty.

Question 2

Mens Rea for Sexual assault

Answer 2

A. Accused intentionally applied force to the victim
General intent offence intoxication not applicable.
B. Knew the victim did not consent willful blindness will substitute for actual knowledge.
R v Ewanchuk: In order for accused to have honest belief in consent, the victim must affirmatively communicate by words or conduct an agreement to enter into sexual activity with the accused. When the victim says “no” it means no. cannot rely on lapse of time, subsequent equivocal conduct, or the victims silence to impute a change of heart on the part of the victim. neither can they test the waters with further sexual contact.

Question 3

Defense

Answer 3

Mistake of fact: must be reasonable.