The first thing to know about the difference between sexual assault and rape is that “rape” is not listed as a criminal offence in the Criminal Code of Canada. Sexual assault is listed as an offence, and it is contrary to section 271 of the Criminal Code.

 

Rape

What was the offence of rape?

Rape used to be a criminal act listed in the Criminal Code. Many changes were made to the wording of the offence over the years. The offence the Criminal Code said that a male committed rape when he had sexual intercourse with a female person who was not his wife. The sexual intercourse would have to have been without the female’s consent. If the female consented but she only consented because the male threatened to harm her if she did not do so, that male would be guilty of rape. If the male had pretended to be the female’s husband and got her consent that way, he would be guilty of raping that woman. Finally, if the man had lied about the nature of the sexual act and gotten the woman’s consent in that way, the man would be guilty of rape.

At what point did the activity become “rape”?

In the 1892 Criminal Code of Canada, “rape” was defined as a man having “carnal knowledge” of a woman who was not his wife. This was another way of saying “sexual intercourse”, and it is not used nearly as much today, if at all. The 1892 Criminal Code said that carnal knowledge was “complete” at the point of penetration. This was penetration to any degree, and it did not have to reach the point of orgasm. The exact wording of the Criminal Code at the time was “Carnal knowledge is complete upon penetration to any, even the slightest degree, and even without the emission of seed.”

While the Code said that sexual intercourse was “complete” at the point of penetration, it did not make it clear whether any other form of sexual touching would be enough to be considered rape.

What was the sentence for rape?

If a man was found guilty of committing rape, he could be punished by a maximum of life in prison. He could also be sentenced to being whipped. If a man was found guilty of attempting to rape a woman, he could be sentenced to a maximum of ten (10) years in jail and could be sentenced to whipping.

Before 1952, the Criminal Code said a person convicted of rape could be sentenced to death. Also before 1952, the maximum punishment for attempting to commit rape was seven (7) years in jail.

Interesting notes about the rape offence

Even though the provisions for rape changed over the years, some things stayed the same. For example, the offence would always talk about a man (or “male person”) committing the offence, not a woman. The offence would always speak of a woman (or “female person”) being the victim. It did not consider a situation where a woman had sexual intercourse with a man without the man’s consent. It also did not mention the case of a woman having sexual intercourse with another woman without her consent, nor the case of a man having sexual intercourse with another man without his consent. This does not mean that a man would be allowed to have sex with another man. At the time that the offence of rape was in the Criminal Code, there were other laws that banned sexual activity between two or more men. For example, earlier editions of the Criminal Code made “buggery”, a legal term for anal intercourse, a crime. Another offence made it illegal for a man to engage in an act of gross indecency with another man. The term “act of gross indecency” was understood to mean cases of sexual activity that were not anal intercourse. A man could be guilty of an act of gross indecency even if those acts were in private. These laws were changed in the late 1960’s, when Pierre Trudeau, the Justice Minister at the time, famously said “There is no place for the state in the bedrooms of the nation.” These changes to the Criminal Code made it legal for a husband and wife, or two consenting people 21 years-old or older, to privately perform anal intercourse or engage in other sexual acts in private. Even with these changes, however, the offence of rape could still only be committed by a man to a woman.

Another interesting note about the offence of rape was that it only talked about a man having intercourse with “a woman who is not his wife”. State laws were written so that it was not possible for a man to rape his wife. Spousal rape was not considered possible. Sexual intercourse within marriage was thought of as a right between a husband and wife, and no consent was thought necessary. There was a widespread belief for many years that by entering into a marriage with a man, a woman had given her consent to have sexual intercourse with him for the entire time they were married. This consent was also thought to be irrevocable, meaning she could not take it back at a later time. There was also a common view that when a woman married, her rights became her husband’s rights. Under that view, the man could not rape his wife just as he could not rape himself. In addition to this, many cultures saw a married woman as her husband’s property. So laws against rape were created to protect the man’s property interests, not to protect the woman’s right to be free from sexual violence or unwanted sexual contact.

Changes to the Criminal Code

In 1983, changes were made to the Criminal Code. There was no longer a listed offence of rape. The new crime of sexual assault was made. The changes to the laws of rape came as a result of how infrequently victims of rape would come forward to report what had been done to them. Many deep-rooted beliefs made women who were the victims of rape felt ashamed of their experiences. The laws were changed so that women who had been raped would be encouraged to come forward with their stories. The laws were also changed so as to shift the focus toward the violent nature of rape and away from the sexual aspects of it. There was also a widespread belief in there being a connection between someone not being a virgin and their believability as a witness. The laws were changed to address that as well.

Sexual Assault

The changes resulted in three new criminal offences. These were sexual assault (section 271 of the Criminal Code) sexual assault with a weapon, threats to a third party, or causing bodily harm (section 272 of the Criminal Code), and aggravated sexual assault (section 273 of the Criminal Code). The most basic of these is sexual assault. We will first briefly consider what sexual assault is before comparing it to rape, but for a more complete answer to what sexual assault is, see our article on sexual assault (hyperlink to “What is sexual assault?” article).

What is “assault”?

A sexual assault is, of course, an assault. An assault happens when a person intentionally applies force to another person without that other person’s consent. The force can be applied either directly (such as punching a person) or indirectly (such as hitting someone with a weapon). An assault can also happen when a person threatens to apply force to another person without that person’s consent. In those situations, the person making the threat will have to have the ability to actually apply that force or cause the victim to believe he can actually apply that force. Finally, a person can commit an assault if he impedes another person while openly carrying a weapon or imitation weapon. Even though most people think of a violent attack when they hear the word “assault”, an assault can technically be as simple as unwanted touching.

What makes the assault sexual in nature?

The difference between assault and sexual assault is that in a sexual assault, the victim’s sexual integrity is violated. In order to determine if the victim’s sexual integrity was violated or if the assault was of a sexual nature, the courts will look to many factors. These factors include the part of the body that was touched, the situation in which the contact occurred, and any words and gestures that happened along with the act. It is not necessary for the accused to receive sexual gratification from the assault for the assault to be sexual. This means that an assault that is sexual in nature that was done for the purpose of disciplining someone can still be sexual assault.

The difference between sexual assault and rape

The offence of sexual assault is much broader than the offence of rape ever was. The wording used to describe a sexual assault is more general. Some people might hear that there is no Criminal Code offence called “rape” and think that that means it is technically not illegal to rape someone. That could not be further from the truth. Because rape was defined as sexual intercourse involving penetration, that would be considered an application of force. Therefore, rape is today considered an example of sexual assault. If a person rapes somebody else, that person will be charged with sexual assault.

An assault can be committed by a man to a woman, by a woman to a man, or it can take place between two people of the same gender. Therefore, unlike the offence of rape, sexual assault is not something that can be committed only by a man to a woman who is not his wife. State laws also now recognize that spousal rape can occur, and a man who has sexual intercourse with his wife without her consent will be guilty of sexual assault.

The maximum and minimum sentences for sexual assault are also different from those of rape. In certain cases of sexual assault (such as when the victim is a child), there will be a mandatory minimum sentence of either one year in jail (when the Crown proceeds by indictment) or 6 months in jail (when the Crown proceeds by summary conviction). The sentence for sexual assault also depends on what type of sexual assault the person is charged with (sexual assault, sexual assault with a weapon, aggravated sexual assault, etc.). For more information, see our article on sentencing in sexual assault cases (hyperlink to “What is the minimum sentence for sexual assault in Canada?”)

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Though the term “rape” is no longer listed in the Criminal Code, it is still an example of sexual assault. In the same way that “punching” is not a listed offence in the Code, “assault” is, and punching someone would be an example of an assault and would lead to a criminal charge. The offence of “sexual assault” is broader and captures many more activities, whereas “rape” was much narrower in its definition. Changes in attitudes toward sex and victims of rape have led to changes in the laws, and it is now all the more important to know your legal rights and responsibilities.

If you have been charged with sexual assault, you should not face the charges alone. Lakin Afolabi is an experienced criminal defence lawyer working in the Ontario area. He has helped countless individuals facing serious criminal charges. Call him today for a consultation.

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Lakin Afolabi Law criminal lawyers london ontario
472 Ridout St N, London, ON N6A 2P7 Phone: (519) 645-6969