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Sexual Assault & the Criminal Justice System

There is certain information that someone who has been sexually assaulted may want to know before deciding to report the assault, as well as information they will want to have if there is going to be a court case.

If there is a criminal court case concerning the assault...

  • You have the right to know where and when any proceedings regarding the crime will be held.
  • You have the right to be informed about the progress of the case and the outcome.
  • You have the right to request that your identity be protected in proceedings relating to the offence.
  • You have the right to ask for testimonial aids when appearing as a witness.
  • You have the right to present a Victim Impact Statement and have it considered.
  • If the person is convicted and sent to jail you have the right to information about the status of the offender in the correctional system, including reviews concerning releases and the timing and conditions of the release if granted.

Police Involvement

Unless the assault involves someone under 18, it is up to you to decide whether to report the offence to the police. If you are under 18, anyone who knows or has reasonable grounds to think you have been sexually assaulted has a duty to report it to the police or a child protection worker.

If you do not wish to report to police, that is your right. You can always report the assault at a later date. There is no statute of limitations on reporting sexual assault. It never ceases to be a crime.

However, if you decide to call the police, the sooner you call the better. This gives the police a better chance of finding and catching the perpetrator of the assault. If you are considering reporting the assault to the police you will want to take steps to preserve evidence. You will also want to have a forensic examination.

If you do call the police, depending on the circumstances, they may come to where you are. Once they arrive they will protect anyone still in danger, look for evidence and preserve evidence. They may take you to the hospital for medical attention.

If you first report the sexual assault at the hospital the police will generally come to the hospital. You can also report the assault at a later time by calling the police.

Usually you will be asked to go to the police station to make a statement about what happened to you. If you are not well enough to go to the police station other arrangements will be made.

In addition to evidence collected at the forensic examination, the police may need to take photographs and may need to keep some of your clothing. The police may collect evidence from the scene of the crime. They may dust for fingerprints and take some property into custody.

You may want to look at the information about calling the police. If you report the crime to the police you can apply for Victim Compensation regardless of whether anyone is charged or convicted.

Remember you have the right to information about how the investigation is progressing including whether anyone has been charged.

Safety Issues

If the police investigate and decide to charge someone you may want to look at the information about release after charges if you have safety concerns.

If you fear for your safety because the person is not in custody you can consider applying for a peace bond. If you are being harassed or intimidated the person may be charged with another criminal offence such as criminal harassment, intimidation, uttering threats, indecent or harassing telephone calls or extortion.

Remember you have the right to have your safety considered by everyone involved in the criminal justice system.

Court Cases

If the police charge someone and they plead not guilty there will be a trial. As a sexual assault survivor you may have concerns and questions about the process. Remember you are entitled to information about how the criminal justice system works in general, as well as information about your specific case.

Testifying

If the case goes to court your testimony can be an important part of the case. You can be required to testify. You may want to look at information about being a witness and support for witnesses.

Q

Will I be asked about my sex life?

A

Many sexual assault survivors are concerned about being required to answer invasive personal questions, particularly questions about their sex life. The law protects the privacy of victims of sexual assault by prohibiting questions about the victim’s sexual activity with the accused or anyone else if the purpose of these questions is to show that the victim should not be believed or that the victim is more likely to have consented to sexual activity with the accused.

Evidence of any sexual activity, other than the assault itself, can only be admitted if it is…

  • not being introduced to try to show that you are more likely to have consented or less worthy of belief
  • relevant
  • about a specific instance of sexual activity
  • important enough to the case that its value outweighs the risk that admitting it would prejudice the proper administration of justice

In deciding whether to allow evidence of previous sexual activities judges must consider a number of things including…

  • the interests of justice including the right of the accused to defend themselves
  • society’s interest in encouraging the reporting of sexual assaults
  • whether there is a reasonable chance that the evidence will assist the court in coming to a just decision in the case
  • the potential harm to the victim’s personal dignity and rights to privacy

Q

Can texts, email etc. be introduced as evidence of my previous sexual activity?

A

Sexual activity includes any communication for a sexual purpose and any communication of a sexual nature. This means that these are covered by the same rules that restrict when evidence of previous sexual activity can be introduced.

Q

Can the defence access and use my personal records such as a diary or notes from a counselor I was treated by?

A

There are rules about when the defence can access or use your personal records in a criminal trial for sexual assault.

Personal records are any form of record that contains your personal information where you have a reasonable expectation that the record would be private. This includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, and social services records. It also includes personal journals, diaries and any record protected by privacy laws. Records made by the police or prosecutor when investigating the offence are not included in the definition of personal records. These rules apply to personal records in the hands of anyone, including the prosecutor.

Personal records can only be shared with the defence if they are likely relevant to the case and it is necessary in interests of justice to share the record with the defence.

Personal records can only be used as evidence if they are relevant and important enough to the case that their value outweighs the risk that admitting them would prejudice the proper administration of justice.

In deciding whether to allow a personal record to be shared with the defence or to be used as evidence judges must consider a number of things including…

  • if it is needed for the accused to be able to defend themselves against the charge
  • society’s interest in encouraging the reporting of sexual assaults
  • the potential harm to the victim’s personal dignity and rights to privacy
  • society’s interest in encouraging victims of sexual assault to seek treatment

Applications to produce evidence of prior sexual activity or personal records.

If the defence wants to introduce any evidence of prior sexual activity, whether through cross -examination or by introducing a communication of a sexual nature, or a personal record they must apply to the court. In the case of personal records an application must also be made by the defence if they want access to a personal record unless you agree to it.

As a victim of a sexual assault you have the right to be present and to be represented by a lawyer – at no cost - whether you choose to personally be there or not. You also have the right to get advice from a lawyer – at no cost – about the application process and your rights.

These applications are heard in private. The jury (if there is one) and the public cannot be present. The application and any evidence or arguments made when the application is being heard cannot be published. The judge’s decision and reasons for the decision also cannot be published unless the judge allows this after considering the interests of justice and the privacy of the person.

Privacy

You might also be concerned about your privacy. Court proceedings are generally open to the public. However, the Criminal Code does specify some situations where the court may order that the public be excluded. Contact the Crown prosecutor if you have concerns about privacy in court.

Q

Will my name be in the news?

A

Publication bans must be granted in sexual offence cases to protect the identity of the victim if the victim or Crown prosecutor requests the order. You can talk to the Crown prosecutor about requesting this order.

Sentencing

If the accused person is found guilty they will be sentenced by the court. You have the right to tell the court how the crime has affected you through a Victim Impact Statement.

There are a wide range of sentences that are possible when someone is convicted of sexual assault. The maximum sentence for sexual assault that does not involve things like a weapon or bodily harm is...

  • 18 months if it is prosecuted as a summary conviction offence
  • 10 years, if it is prosecuted as an indictable offence.

However, if the victim of the sexual assault is under 16 there is a minimum sentence of...

  • 90 days in jail if the offence is prosecuted as a summary conviction offence
  • one year in jail if the offence is prosecuted as an indictable offence.

The prosecutor decides whether to prosecute the offence as a summary conviction offence or an indictable offence depending on the circumstances of the assault.

If a person is convicted of sexual assault with a weapon, threats to a third party or causing bodily harm they can be sentenced to up to 14 years in prison.

If a person is convicted of aggravated sexual assault they can be sentenced to life in prison. If a firearm was used in the assault or if organized crime was involved there are minimum sentences ranging from 4 to 7 years in prison. It is important to remember that the maximum sentences are usually reserved for the worst offender who has committed the worst type of the offence.

The Crown Prosecutor or Victim Services can tell you the time, date and place of the sentencing hearing if you ask. If you are not there when the sentence is decided Victim Services can tell you what sentence the offender received.

Drug-Facilitated Sexual Assault

This segment discusses the impact that drugs or alcohol can have on consent.

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