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).