Sexual Assault Charges In The Hamilton Area
Sex crimes such as sexual assault, internet child pornography charges, voyeurism, and a host of other related charges all carry with them a large amount of stigma, even greater than most alleged crimes. Even being accused can affect your life and the life of your family. If you are charged under the Criminal Code with these very serious charges, you need skilled and experienced representation by a sexual assault lawyer.
When your personal and professional reputation is at stake, it is important to have skillful and proper representation. At Bernstein Law Group, we don't assume anything about your guilt or your worth as a person because of the charge you are facing. We defend you and your rights and listen to your side of the story.
If you have been charged with sexual assault, you need to get an experienced defence lawyer to help navigate and make sense of this very complex legal system in Ontario, Canada. It is the duty of your sexual assault lawyer to protect your rights and achieve the best possible result. Sexual assault cases can be complex, and oftentimes these cases go all the way to trial, and the trial takes place in front of a jury.
Your lawyer should be skilled in cross-examination and have the ability to leverage the strength of your case to attempt negotiating a favorable resolution. Our lead lawyer, Stephen Bernstein, has been defending clients accused of sexual assault for over forty years and has successfully represented several clients against sexual assault allegations such as aggravated sexual assault, sexual exploitation, and other sexual offences of a sexual nature. Our strong track record is what has earned us a great reputation in the field.
Knowing What You're Facing
One of the first things our lawyers will discuss with you is the consequences facing you if you are convicted at trial, or plead guilty. On top of a criminal record, the penalties can include:
- Incarceration: Depending on the seriousness of the charge, you may be facing a lengthy time behind bars, especially if there are aggravating factors such as bodily harm or use of weapons. If the alleged victim is underage, elderly, disabled or vulnerable in some way, or if you had a position of trust or power such as teacher, parent, caregiver, or supervisor, the Crown may seek the maximum penalties available.
- Sex offender registry: You may have to register your name onto the registry, which could prevent you from holding certain jobs or living in certain areas, or being within a certain distance from children or schools.
- Being barred from certain jobs: These can include particularly jobs such as teaching, counseling, or caregiving, or certain professions.
- Family fallout: If your charge is part of a domestic assault case, or if you are in the middle of a divorce with custody proceedings, your charge could have long-lasting consequences on your familial relations.
- Social stigma: This can be severe, not only for you but for your family.
We will examine the details of the incident and the evidence against you, including evidence from witnesses. What you decide to do will depend on the strength of the case against you and your priorities. It's important for you to understand exactly what you are facing before making any decisions.
If we determine that your best chance is in going to trial, we will defend you and cross-examine witnesses. If you decide that what is best is to plead, we will protect you from excessive penalties and find any opportunities to minimize the penalties, such as counseling or programs. Our first goal and priority however will be to see if we can resolve the charges with the Crown and avoid a criminal record altogether, through a peace bond or withdrawal, and if that is not possible, consider a resolution to a lesser charge such as a simple assault. We will do whatever we can to avoid a criminal record.
What Is Sexual Assault?
Sexual assault is an act in which a person intentionally touches another person in a sexual manner and without consent. In that sense, it can range from rather subtle touching, to an extremely violent application of force. Therefore, it can range from unwanted kissing and fondling, up to full intercourse.
Sexual assault is an offence under section 271 of the Criminal Code of Canada and is a type of assault where the sexual integrity of the victim is violated. In order for the Crown to prove sexual assault by way of touching, they must prove that there was touching, it was sexual in nature, and that there was no consent to the touching. The touching must also have been intentional, or in other words, it could not have been simply by accident or involuntarily. It must be of a sexual nature as well, apparent to a reasonable observer.
Courts will generally look at a number of factors such as the credibility of the complainant, the body part that was touched, the nature of the contact, and any words exchanged.
What Is Consent?
If there is consent to the touching, then that would not make out the offence of sexual assault. Section 273.1 defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” The court will look at the complainant’s subjective state of mind when the sexual touching occurred. If the complainant testifies that he or she did not consent, but the circumstances surrounding the incident casts doubt on that testimony, the judge or judge may choose to not accept the testimony of the complainant.
It is not enough that the accused testify that there was implied consent. The accused cannot argue that the complainant’s silence constituted consent and if the complainant originally says “no” to the touching, there must be a clear “yes” before the touching can proceed. In that sense, consent has to be ongoing and any sexual activity must immediately stop if either party wants it to desist. In that sense, parties to sexual activity must take reasonable steps to ensure consent.
There is a sexual assault defence known as Mistaken Belief in Consent. This defence is when the accused honestly, but mistakenly, believed that there was consent to the touching and that the accused did not have the intention to touch the complainant without their consent. Courts over the years have limited this defence to only be used in exceptional circumstances. Courts require that there must be a good reason the accused believed there was consent and will not just accept that the complainant was silent or passive. Additionally, the accused cannot rely on a mistaken belief that arose because of self-induced intoxication or willful blindness or sexual history between the offender and the complainant.
The age of consent in Canada is 16, meaning, it is the age at which a person is legally allowed to give consent to sexual touching by another person. If a person is under 16 years old, the law deems them incapable of giving consent. There are exceptions to this rule depending on the age of the accused. The offender must take all reasonable steps to ascertain the age of the complainant and that they are a 16-year-old, or older, and it is not enough to simply say he or she believed the complainant was of legal age.
What Types of Sexual Assault Charges Are There?
There are several different types of sexual assault charges. For instance, sexual assault with a weapon has all of the other requirements of sexual assault, but an accused also uses or threatens to use a weapon or imitation weapon. The use of a weapon would be an aggravating factor and would call for a harsher sentence.
Penalties for sexual assault charges range depending on a number of factors. It depends on such things as whether it was a one-off or took place over a lengthy period of time, the degree of touching and whether there was full intercourse, and the characteristic of the offender.
For the most part, if an offender is convicted of sexual assault, he or she will likely face a penitentiary sentence if there is a presence of aggravating factors.
Sexual assault causing bodily harm includes the elements of sexual assault, and an additional element of bodily harm. Bodily harm includes any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature which could include personal injury such as significant bruising and cuts.
Aggravated Sexual Assault can only be prosecuted as an indictable offence, as opposed to allowing the Crown to choose between indictable and summary conviction. Aggravated sexual assault includes more serious injuries such as maiming, or when the conduct disfigures or endangers the life of the complainant.
Sexual interference is when the complainant is under the age of 16. Oftentimes these charges also include child luring charges and sexual assault charges. Sexual interference is a crime under section 151 of the Criminal Code. The touching must be for a sexual purpose. In order for touching to be for a sexual purpose, it requires that the accused intended sexual interaction of any kind and made contact with the body of a child or with an object. Sexual interference is a very serious charge and the Crown vigorously prosecutes these cases.
Invitation to sexual touching is committed when the accused, for a sexual purpose, invites, counsels, or incites a person under the age of 16 to touch the body of any person, including the accused or the complainant him or herself. The accused has to have intended that the child receive the communication as an invitation, incitement, or counseling to do the touching or at least know the risk it could be received that way.
Incest is defined under section 155 of the Criminal code and occurs when a person, knowing that the other person is by blood relationship his or her parent, child, brother, sister (including half brothers or half-sisters), grandparent or grandchild, has sexual intercourse with that person.
What Is the SOIRA Order?
SOIRA is an acronym for Sexual Offender Information Registration Act. It is an established national database that registers sexual offenders and is available to all accredited Canadian police agencies. The purpose of SOIRA is to assist police in future investigations and help the police identify possible suspects.
You Need a Skilled Sexual Assault Lawyer in Your Corner
The Canadian legal system is complex and the Crown takes these charges extremely seriously. The Crown takes these cases so seriously because of the public interest in eradicating sexual abuse and the outrage the public has with cases involving unwanted sexual activity and sexual interference. Sexual interference involves sexual contact and sexual touching of a young person. The Crown vigorously prosecutes these cases in an attempt to prove their case beyond a reasonable doubt, and you need a skilled criminal defence lawyer to level the playing field and protect your rights.
It is absolutely critical, that your lawyer specializes in criminal law and is an experienced sexual assault lawyer to help your chances at winning this case or negotiating the best resolution with the Crown.
Contact Bernstein Law Group
If you have been charged with any kind of sex crime under the Criminal Code of Canada, call our Hamilton office at 905-546-1990 for a free consultation or contact us online. Our law firm is proud to serve Hamilton, Toronto, Brantford, Oakville, Burlington, and the rest of Ontario. Call now and begin fighting your criminal charges. Our office will do everything in our power to attain the best result possible for your criminal case.