Backgrounder: Sexual Assault Definition in Canada

by | January 9, 2012
filed under Can-Con, Feminism

Jasmine’s post on the new FBI definition of rape made me realize I only had a vague understanding of the law surrounding rape in Canada. For those of you in the same boat, here’s what I found out. Note, I’m not a lawyer and if I’ve got any nuances wrong, I hope more knowledgeable readers will correct me in the comments below.

The word “rape” is not used in the Canadian Criminal Code, which instead criminalizes “assault” including “sexual assault”. The basic definition of sexual assault in section 271 of the Criminal Code is an offense that occurs when somebody touches you in a sexual way on purpose, directly or indirectly, without your consent.

In 1983, Canada passed Bill C-127, which made changes to the laws of rape, attempted rape, and indecent assault. Bill C-127 abolished the offences of rape, attempted rape and indecent assault and introduced a three-tiered structure for sexual assault offences. According to StatsCan, “the Bill also eased the circumstances under which police could lay charges in incidents of sexual and non-sexual assault.”

Here are the 3 tiers of sexual assault offenses in Canada:

The most complicated aspect of the sexual assault law is how consent is determined. Even if someone gives consent, it may still be considered assault or another criminal sexual offense if the other person uses coercion, threats, or deception. You also can’t legally consent to have sex with a person in a position of power over you if the consent was obtained through an abuse of power, such as a high school student sleeping with a coach, a crime victim with an investigating police officer, or a patient with their psychologist.

Then there are the age restrictions. The age of consent in Canada is basically 16 (unless you’re gay – the age of consent for anal sex is 18). But if you’re 12 or 13 you can consent to have sex with someone less than 2 years older than you. And if you’re 14 or 15  you can consent to have sex with someone less than five years older for you.

Other sexual offenses in the Criminal Code include sexual exploitation of a minor or person with a disability, invitation to touching and indecent exposure of genitals to a person under 16, and sexual interference (for more info on these, check out this info from the Scarborough Hospital Sexual Assault Care Centre).

-Jarrah


  • Gaz

    Hi Jarrah,

    Nicely put – the use of the word “rape” is somewhat antiquated, gendered, and implies only one form of sexual assault (intercourse). However, there is a part of what you said that could use some clarification: “You also can’t legally consent to have sex with a person in a position of power over you, such as a coach, priest, boss, or police officer.”

    Consider the police officer, who is always in a position of power. As it reads, it sounds like wwe have a law in place that demands Canadian police officers be celibate, which is not the case. Also consider the coach with whom you may already have a relationship prior to the coaching position on your company’s baseball team, or the boss of an office of three where a relationship develops naturally over time. Canadian law is a bit more sophisticated, in that it must be proved the consent was obtained through an abuse of power, rather than just when that power differential exists.

    A power differential in one area (e.g., professionally) doesn’t mean it will be there in all areas (e.g., personally). However, the abuse of authority is a much less difficult thing to prove when one of the individuals involved is under the legal age of consent, as in the high school teacher-student relationship. As unethical as it may be, it is not necessarily illegal for the college/university student to have a sexual relationship with an instructor or a professor.

  • jarrahpenguin

    Hi Gaz – thanks for the clarification. I shouldn’t have assumed that was implied. I’ll make a couple of quick adjustments.

  • CarolineMorais

    The problem with Bill C-127 is that it only speaks of physical injury in level 1. I ask,”where is the protection for persons suffering from the negative mental health effects of sexualassult?

    MENTAL HEALTH PROBLEMS. Also known as rape trauma syndrome, post-traumatic stress disorder (PTSD) is a mental health disorder that describes a range of symptoms often experienced by someone who has undergone a severely traumatic event. Approximately 31% of rape victims develop PTSD as a result of their assault; victims are more than six times more likely to develop PTSD than women who have not been victimized.
    The symptoms of PTSD include:
    recurrent memories or flashbacks of the incident
    nightmares
    insomnia
    mood swings
    difficulty concentrating
    panic attacks
    emotional numbness
    depression
    anxiety
    Persons who have been sexually assaulted have also been noted to have increased risk for developing other mental health problems. Over those who have not been victimized, rape victims are:
    three times more likely to have a major depressive episode
    four times more likely to have contemplated suicide
    thirteen times more likely to develop alcohol dependency problems
    twenty-six times more likely to develop drug abuse problems

    http://medical-dictionary.thefreedictionary.com/Rape+and+Sexual+Assault

  • Andrew

    I have an issue with the phrase, “The age of consent in Canada is basically 16 (unless you’re gay – the age of consent for anal sex is 18). ”

    This is suggesting that homosexuals are the only people who would participate in anal sex, which is easy to assume, but hardly the case. I am assuming it would apply to everyone regardless of their sexual orientation. This could easily offend someone. You may wish to choose your words more carefully.

    • jarrahpenguin

      Good point – thanks for mentioning that oversight.