Sexual assault defined by effect and not cause

Sexual assault is not defined by the purpose of the attack but rather by the nature of the assault. Hence, the question is not "what was the purpose of the assault" but rather was "the sexual integrity of the victim is violated?"

This point was clarified by the Court of Appeal yesterday in R. v. Lutoslawski, 2010 ONCA 207:

[36]     Sexual assault does not require proof of an improper or ulterior purpose.  In R. v. Chase (1987), 37 C.C.C. (3d) 97 at 103 (S.C.C.), the court held:

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.  The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?" The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant.  The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual.  If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual.  It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.  [Emphasis added, citations omitted.]

[37]     The trial judge accepted the evidence of the complainants concerning the incidents giving rise to the allegations.  He should have considered whether, on an objective view of the entirety of the circumstances revealed by that evidence, the respondent's conduct was of a sexual nature.  The respondent's purpose in touching the complainants was not an element of the offence, but was instead evidence that could be considered along with the other circumstances.  The trial judge's finding of fact that the respondent was motivated by a sexual purpose could assist the Crown only in proving the allegation of sexual assault.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
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