What Kind of Sexual Assault Are You Charged With?
It is important to know from the very start what kind of sexual assault you are charged with. The type of sexual assault you are charged with will change the minimum possible sentence. Some crimes are considered sexual, but they are not technically sexual assault. An example of this would be invitation to sexual touching, which is where a person, for a sexual purpose, tells or asks a person younger than 16 years-old to touch someone’s body. Some crimes are more serious examples of sexual assault, such as sexual assault causing bodily harm or aggravated sexual assault. The type of sexual assault this article will mainly focus on is simple sexual assault (sometimes called “sexual assault simpliciter”), and it is contrary to section 271 of the Criminal Code of Canada. We will consider other types of sexual assault later in this article.
Mandatory Minimum Sentence
What is a Mandatory Minimum Sentence?
For some crimes, a judge might be restricted in what he sentences a person to. A mandatory minimum sentence is a sentence that the judge is not allowed to go under. For example, if a person is being sentenced for a crime that has a mandatory minimum of one year in jail, the judge would not be allowed to sentence that person to 90 days in jail. A judge can give a sentence that is higher than the mandatory minimum sentence, but not lower.
Sexual Assault with a Victim Younger than 16 Years-Old
The minimum sentence for sexual assault in Canada is different depending on the situation. First of all, there is only a mandatory minimum sentence for sexual assault if the victim was under the age of 16 years-old. If the victim was 16 years-old or older, there is no mandatory minimum sentence.
The mandatory minimum sentence also depends on how the Crown Attorney is prosecuting the case. The Crown Attorney can either proceed by indictment (used for more serious offences) or by summary conviction (used for less serious situations where a faster procedure is appropriate). If the Crown Attorney is prosecuting the case by indictment and the victim is under 16 years old, the mandatory minimum punishment is 1 year in jail. The maximum punishment in that case is 14 years in jail.
Sexual Assault with a Victim 16 Years-Old or Older
When the victim of sexual assault is 16 years of age or older, there are still maximum sentences, but there are no mandatory minimum sentences. The maximum sentence in an indictable case is 10 years. The maximum sentence in a summary case is 18 months. The judge has more options with sentences in these cases. The lowest sentence a judge can give is called a discharge.
What is a Discharge?
When a person is given a discharge, the person is found guilty of the offence but they are not convicted of the offence. Even though many people think that a person is convicted once the judge finds that person guilty, that is not true. A person who is given a discharge will not have a criminal record. That person can honestly say that they have not been convicted of the offence, even though they have been found guilty of the offence.
There are two types of discharges – absolute discharges and conditional discharges. When a person is given an absolute discharge, they are free to go. They do not have a criminal record, and any record of the discharge will be removed after one year from the day that person received the discharge.
When a person is given a conditional discharge, the judge finds that person guilty of the offence. But that person is not convicted of the offence. The difference between a conditional discharge and an absolute discharge is that a conditional discharge includes probation. Probation is a period of time when the convicted person will have to perform certain actions or make sure to not do certain things. For example, a part of a probation order may require a person to attend counselling. Or the person may have to complete a number of community service hours. Some of the probation orders are orders that a court has to make. People on probation will have to keep the peace and be of good behaviour. In a sex assault case, the judge will almost always order that the accused person not communicate with the victim. When the probation is completed, the conditional discharge becomes an absolute discharge.
National Sex Offender Registry
What is the National Sex Offender Registry?
If a person is convicted of sexual assault, they will be put on the National Sex Offender Registry. The Sex Offender Registry requires people to tell the police where they live, their phone number, and even the car they drive. If a person on the Sex Offender Registry makes travel plans, they will have to tell the police the details of those plans.
How long the person will be on the Registry changes from case to case. It depends on whether the Crown Attorney prosecuted the case by indictment or summary conviction. If it was by indictment, the person will be on the Registry for 20 years. If it was by summary conviction, the person will be on the Registry for 10 years. In some cases, a person will be put on the Registry for the rest of his life. This will only happen in specific circumstances.
Getting Taken Off the Registry
A person who is on the Sex Offender Registry can apply to be taken off the Registry before the order ends. If the order is for 10 years, the person can make that application after 5 years of being on the Registry. If the order is for 20 years, the person can make that application after 10 years of being on the Registry. If the order is for life, the person can usually make that application after 20 years of being on the Registry. Just because a person applies to be taken off the Registry early does not mean that person will be taken off the Registry. This process can be very complicated. A person who wants to make that application should hire a lawyer to assist them.
Other Types of Sexual Assault
Sexual Assault Causing Bodily Harm
If a person commits a sexual assault and causes bodily harm to the victim, that person will be charged with sexual assault causing bodily harm. This is contrary to section 272(1)(c) of the Criminal Code. This is a different offence from simple sexual assault, and it is treated as much more serious.
The maximum sentence for sexual assault causing bodily harm is fourteen years in jail. Even though there are some cases where there is no mandatory minimum for sexual assault causing bodily harm, in many cases there are. For example, the use of a gun during the offence means that there will be a mandatory minimum punishment for the crime. If the gun that is used is called a “restricted firearm” or a “prohibited firearm”, the minimum sentence will be five years in jail. But if the person using the restricted firearm has committed the offence before, the mandatory minimum punishment is seven years in jail. If a gun other than a “restricted firearm” or “prohibited firearm” is used, the minimum punishment will be four years in jail.
There is a mandatory minimum punishment if a person uses any type of gun while committing a sexual assault and that person is committing that sexual assault for the benefit of or because they have been directed to do so by a criminal organization. If this is the first time the person has committed that offence, that person will face a minimum sentence of five years in jail. If that person has committed that type of offence before, he will face at least seven years in jail.
If the victim of the assault causing bodily harm is younger than 16 years-old, the minimum punishment is five years in jail. The maximum sentence in that case is life in prison.
A person cannot say that they were drunk as a defence to a charge of sexual assault causing bodily harm.
Sexual Assault With a Weapon
Another offence is sexual assault with a weapon, contrary to section 272(1)(a) of the Criminal Code. This includes situations when a person carries a weapon, uses a weapon, or threatens to use a weapon. The weapon can be a knife, a gun, or any other thing designed to injure or kill someone. If a person ties up a victim during a sexual assault, the thing used to tie up the person will count as a weapon. It will be considered a weapon even if the victim is not injured.
The same minimum sentences for sexual assault causing bodily harm will apply for sexual assault with a weapon.
Aggravated Sexual Assault
Some injuries are more serious than others. If a victim receives an injury that impacts their comfort, the offender will almost always be charged with sexual assault causing bodily harm. If the injuries are more serious, the person may be charged with aggravated sexual assault, contrary to section 273 of the Criminal Code. Aggravated sexual assault is a sexual assault that causes the victim to be permanently injured, disfigured, or results in the victim’s life being put in danger. If the victim receives broken bones or scars, the offender will probably be charged with aggravated sexual assault.
The minimum sentences for aggravated sexual assault are the same as the minimum sentences for sexual assault causing bodily harm. The difference is that the maximum punishment for aggravated sexual assault is always life in jail. Sexual assault causing bodily harm has a maximum punishment of 14 years in jail, unless the victim is under 16 years old.
What Do You Mean By a Second Offence?
Earlier, we said that a person can face a higher minimum punishment if that person has committed that offence before. But what you should know is that the earlier offence does not have to be the exact same offence as the later one. A person can still face a higher minimum sentence even if they were convicted of a different offence before. For example, a person has been convicted of sexual assault causing bodily harm. That person has never been convicted of sexual assault causing bodily harm before. You might think that person’s minimum punishment is 5 years in jail. But if that person had been convicted of sexual assault with a weapon in the past, that person would be facing a 7-year minimum jail sentence. Just because a person has not been convicted of a specific offence before does not mean that person is not being convicted of their second offence.
Whether or not a person might be convicted of a second offence can be complicated. It is best to ask a legal professional about the specific circumstances of your case to find out if you might be convicted of a second offence.
Not Being Allowed to Be Near Children
If a person is convicted of sexually assaulting a person who is under the age of 16, the judge might order that that person not go near children. More specifically, the person might not be allowed to go to public parks or public swimming pools. They might also not be banned from going to daycare centres, schools, playgrounds, or community centres. The court might also order that the person not be employed or volunteer in any way that would involve being in a position of trust to a person younger than 16. This includes teaching jobs and coaching jobs, even if the person had been employed in that way before the conviction.
No Internet Access
The court can also make an order that a person not use the Internet unless that person does so under certain conditions. This will only be appropriate in certain situations. Courts also recognize that a person’s access to the Internet should not be so restricted that the person is unable to find a job or become rehabilitated.
If a person is convicted of certain sexual assault offences, that person might be ordered to not possess any weapons. Examples of offences that would result in a no-weapons order are sexual assault with a weapon, sexual assault with threats to a third party, sexual assault causing bodily harm, and aggravated sexual assault. A conviction of simple sexual assault might result in a no-weapons order, but not always. If the victim of the sexual assault is the offender’s husband/wife, boyfriend/girlfriend, child, or parent, the court will impose a no-weapons order.
The word “weapon” includes a firearm, a cross-bow, and ammunition, among other things. This no-weapons order will be in force for at least ten years. If the person has been convicted of that same offence before, the order will be for life.
These Orders Are Possible Even With a Discharge
It is important to note that the court can make these other orders even if the person is given a conditional discharge. Remember that a conditional discharge includes a period of probation. The court can make these orders as part of that probation period.
Can I Cross the Border to the United States?
Having a conviction for sexual assault makes it very unlikely that you will be allowed to cross the border into the United States. It is very difficult to cross the border when you have been convicted of what the United States calls a “crime of moral turpitude”. This is a difficult idea to define, and most border guards will not know the definition themselves. A crime of moral turpitude usually relates to fraud, drugs, or violence. A conviction for sexual assault is almost always a barrier to getting across the border.
Even if you think that your circumstances were not so bad that you should be denied entry, you will still probably not be allowed to cross the border. Border guards have a lot of discretion over who is let into the country, and the fact that there is a conviction for sexual assault will usually stop you from entering.
Even if you have been given a discharge for sexual assault, the guards at the border might still be able to see a record of the discharge. Even though you should technically be allowed to enter the United States, the guards might still turn you away. The best practice is to get a U.S Entry Waiver.
A sexual assault charge can have a serious impact on your life, even if you are not convicted. It is important to take these charges seriously. Lakin Afolabi is an experienced criminal defence lawyer in the London area, and has successfully defended people facing sexual assault charges. Call him today for a consultation.