Interpreting Sexual Assault Laws in Canada

1. In this case, the legal issue to be debated is whether Vanessa’s conduct constitutes sexual assault? If her conduct is not sexual, does her conduct constitute common assault? According to s. 265 of the Criminal Code, a sexual assault occurs when there is a non-consensual application of force that violates the complainant’s sexual integrity (Chase, para. 1). This section, which is cited in the Chase case as s. 244, is now s. 265. According to R. v. Chase (1987), there is a flexible checklist of factors for determining whether the reasonable observer would view the assault to be sexual in nature. This checklist includes elements such as the part of the body touched, the nature of the contact, the situation in which the act occurred, the words

For File 1, the legal issue is whether the accused, A, can be convicted of sexual assault. Is complainant’s consent to engage in unprotected sexual intercourse vitiated by fraud when her partner knows that he has gonorrhea and fails to disclose this information? According to s. 265, specifically s. 265(1)(c) of the Criminal Code, a person commits sexual assault through an act of intentionally applied force that is sexual in nature where there is a lack of consent by reason of fraud (Cuerrier, para. 94). There is always force applied during sexual intercourse, so the first requirement of sexual assault is fulfilled. For the requirement that there be a lack of consent, in R. v. Cuerrier, the court said that the common law requirement that fraud must relate to the nature and quality of the act was a much too rigid definition of fraud. In this case, if that requirement for fraud still stood, the accused’s failure to disclose his gonorrhea status would be insufficient to vitiate the complainant’s consent because it did not change the nature or the quality of the sexual act(R. v. Cuerrier, 105). Instead, the Court tied fraud committed in a criminal context to fraud as it is treated in a commercial context (Cuerrier, para. 103) and defined fraud based on the presence of two conditions: dishonesty and deprivation resulting from the dishonesty (Cuerrier, para. 126-128). In this case, the dishonesty requirement, which was the non-disclosure of gonorrhea status, is definitely present. In addition, the second requirement of fraud is also satisfied in this case. In the Cuerrier case, failure to disclose the presence of HIV was found to put the victims at a significant risk of serious bodily harm (Cuerrier, para. 128). Since gonorrhea is even more infectious than HIV and can cause serious and permanent, possibly even life threatening, health problems if left untreated, failure to disclose this status definitely put the complainant at a significant risk of serious bodily harm.