The Issue of Consent in Calgary Sexual and Non-Sexual Assault Cases: Part 1
No criminal defence case is simple. Though the law often seems straightforward from the outside looking in, any criminal defence lawyer in Calgary can tell you that this is far from the case. The unique circumstances surrounding every criminal charge demands each case and every single person accused of a crime deserves independent attention and analysis, and a defence strategy designed specifically to suit their best interests.
This is true of assault cases as well. Though assault might seem clear as a concept, determining what constitutes a criminal assault under the law, and determining whether a true criminal assault has taken place in any given situation, can be more complex than it may seem. And in cases of sexual assault, the issue of consent can complicate matters still further.
Why Consent Is Rarely An Issue in Non-Sexual Assaults
The laws defining assault in Calgary and throughout Canada are quite broad in many ways. All forms of criminal assault include one primary consideration: whether or not there was physical contact, or the threat of physical contact, without the consent of the person being touched (or threatened). The two key facts that law enforcement and Crown prosecutors will try to establish when laying assault charges are the physical contact (or threat of contact) itself, and the lack of consent.
In many cases of common or simple assault and aggravated assault, the lack of consent is considered self-evident due to the nature of the physical contact and/or injuries caused. Someone suffering from significant injuries after allegedly being attacked is assumed not to have consented to the physical contact that caused their injuries; all that remains to be established is how the contact occurred (e.g. whether the injured party is partially responsible for instigating the altercation, whether the attack was purposeful, etc.) and who, in fact, took part in the altercation.
Being violently punched or kicked, in short, isn't something anyone consents to in normal situations, so without some very out of the ordinary circumstances a punch or kick would most likely be considered assault if reported to the Calgary Police and Court officials. Though a punch or a kick might take place within complex circumstances that can affect an assault charge and defence, there will likely not be a question of consent.
Questions of consent in cases of alleged sexual assault, however, are relatively common. Unlike a punch or a kick, the type of physical contact that occurs in many cases of alleged sexual assault is a type of physical contact that adults frequently consent to. Sexual contact, in other words, is a normal part of being human, whereas punches, kicks, and other acts of violent are not, thus someone is far more likely to consent to sexual contact than they are to being punched or kicked.
Contact a Calgary Defence Lawyer for Your Assault Case
We'll look deeper at the issue of consent in Calgary sexual assault cases in Part 2 of this article. If you or a family member has been charged with a sexual assault, or any kind of assault, and would like answers suited to your specific case, please contact an experienced Calgary criminal defence lawyer immediately.