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CRIMES AGAINST THE PERSON AND REPUTATION: VIOLENT CRIMES

CRIMES AGAINST THE PERSON AND REPUTATION: VIOLENT CRIMES. Assault and Sexual Assault. ASSAULT. Assault is threatened or actual physical contact without consent. In 2007, assault accounted for the most common form of violent crime – 82% of all cases reported.

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CRIMES AGAINST THE PERSON AND REPUTATION: VIOLENT CRIMES

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  1. CRIMES AGAINST THE PERSON AND REPUTATION: VIOLENT CRIMES Assault and Sexual Assault

  2. ASSAULT • Assault is threatened or actual physical contact without consent. • In 2007, assault accounted for the most common form of violent crime – 82% of all cases reported. • Assault is categorized into 3 levels of severity • All assaults have 2 common elements: • The accused must have the intent to carry out the attack and cause harm. • There must be no consent by the victim (i.e. A boxing match)

  3. Level 1 Assault • Hybrid offence, max. 5 years imprisonment; • i.e. Pushing someone, threatening someone with violence; • Words must be accompanied by an act or gesture, i.e. Saying “I’m going to hit you” must be accompanied by waving a fist ; • includes one of the following: • Intentionally applying force to another person, either directly or indirectly, without that person’s consent; • Attempting or threatening by an act or gesture, to apply force, or • Accosting or impeding another person, or begging, while openly wearing or carrying a weapon or an imitation weapon.

  4. Level 2: Assault with a weapon or causing bodily harm • Hybrid offence; max. 10 years in prison • Injuring a person in a way that has serious consequences to the victim’s health or comfort; • May also involve carrying, using, or threatening to use a weapon, i.e. Baseball bat, knife.

  5. Level 3: Aggravated Assault • Indictable offence, max. sentence of 14 years in prison; • Wounding, maiming, disfiguring, or endangering the life of the victim; • Mensrea is only to commit bodily harm.

  6. SEXUAL ASSAULT • Reflect the 3 levels of regular assault. • A specific form of assault that involves any form of unwanted sexual activity; • A sexual assault occurs when no consent is given

  7. Level One Sexual Assault • Touching of a sexual nature that is not invited or consensual; • Occurs in relation to sexual conduct or when the victim’s sexual integrity is violated; • Does not have to involve any physical injury to the victim; • Hybrid offence, max. 10 years in prison. • If summary – max. 18 months. • According to Stats Canada, 97% of reported sexual assaults fall into this category.

  8. Level Two Sexual Assault – Sexual Assault with a weapon, threats to a third party, or causing bodily harm • Involves sexual assault with in combination with threats or the use of weapons, or that results in bodily harm. • Indictable offence, max. 14 years in prison

  9. Level Three Sexual Assault – Aggravated Sexual Assault • Wounding, maiming, disfiguring, or endangering the life of the victim of sexual assault. • Indictable Offence, max. life in prison. • If a firearm is used, a minimum of 4 years.

  10. Consent and Sexual Assault • Consent is the voluntary agreement of the accuser to engage in the sexual activity in question. • Actusreusof assault is the sexual touching to which the victim does NOT consent. • Mensreais knowledge that the victim gave no consent, recklessness, or willful blindness. • Frequently an issue in sexual assault trials. • Implied consent is not allowed as a defence, no means no or yes means yes, but it has to be clearly indicated.

  11. Age of Consent • The legal age that a person can consent to sexual activity. • Where there is a relationship of trust (i.e. An authority figure is involved), the age of consent is 18. • “close in age” or “peer group” exception – consent can exist when the accused is less than 2 years older than the victim.

  12. What do you think? R. v. Daviault – Intoxication as a Defence for Sexual Assault • The complainant in this case, a 65-year-old woman, was partially paralyzed and confined to a wheelchair. Henri Daviault knew the complainant through his wife: she was the complainant’s dressmaker and often ran errands for her. On May 30, 1989, the complainant asked Daviault to deliver her some alcohol. At 6:00 pm Daviault arrived at the complainant's residence with a 40-ounce bottle of brandy. The complainant consumed half a glass of brandy and then fell asleep in her wheelchair. While she slept, Daviault consumed the rest of the bottle. During the night, the complainant woke to use the bathroom. At that time, Daviault appeared, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. Daviault left the residence at approximately 4:00 am. He was later charged with one count of sexual assault. • Daviault was a chronic alcoholic. At trial, he testified that prior to being at the complainant’s residence, he had consumed seven or eight bottles of beer at a bar. Furthermore, he recalled having a glass of brandy with the complainant but did not remember what had happened between then and when he awoke nude in the complainant’s bed. This being the case, he denied that he had committed any sexual assault. • At trial, the defence called a pharmacologist as an expert witness. He hypothesized that, by consuming seven or eight beers and 35-ounces of brandy, Deviault may have experienced ”amnesie-automatisme”, otherwise known as a black-out. In such a state, Daviault’s brain would not have functioned normally. He would have lost touch with reality and would have no awareness or memory of his actions.

  13. Court of Quebec • The trial judge acquitted Deviault of the sexual assault charge. For him, the testimony of the pharmacologist created a reasonable doubt as to the existence within Deviault of minimal intent to commit the act. This minimal intent was a requirement for conviction for the offence of sexual assault. The Crown appealed the trial judge’s decision to the Quebec Court of Appeal. • Quebec Court of Appeal • The Quebec Court of Appeal allowed the Crown's appeal and overturned the trial judge's decision and entered a verdict of guilty. The court asserted that intoxication akin to insanity or automatism could not negate the mensrea for offences of general intent such as sexual assault. This being the case, the defence of insanity was not available to the accused. Deviault appealed the Court of Appeals decision to the Supreme Court of Canada.

  14. Intoxication cannot be used as a defence to sexual assault if the accused drank so much that the loss of self-control was bound to occur • R. v. Daviault – 1994 – the court held that drunkenness can be a defence in a sexual assault case if there is reasonable doubt that the accused could make a clear decision to act with intent. • The public was outraged by this decision, and as a result the Criminal Code was amended to reflect that drunkenness cannot be used in those cases involving the bodily integrity of a person.

  15. Rape Shield • This is a law that limits the defendant’s ability to cross-examine sexual assault complainants about their past sexual behaviour and sexual history (can’t put their past on trial to challenge their credibility). • The courts have ruled that this information can be used if the judge determines it will add value to the fairness of the trial.

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