Sexual assault crimes are one of the most controversial areas in modern society. However, both parties in all sexual assault cases have rights. On one hand, the defendant has the right to be presumed innocent. And on the other hand, the victim has the right to security and privacy.
In addition to being controversial, sexual assault cases are legally complex. This is so because the elements of sexual assault are multi faceted. Every crime has two elements. The first element is the guilty act. The second element is the guilty mind.
The Objective Element
In sexual assault cases, the guilty act requires proof of three things: (i) touching; (ii) of an objectively sexual nature; and, (iii) to which the complainant did not consent. At this stage, consent means that the complainant, in their own mind, agreed to the sexual act. Furthermore, the complainant must consent to each sexual act in a particular encounter.
This is where capacity to consent comes in to play. The complainant must be capable of providing consent in order to do so. To this end, there are four requirements to capacity. The complainant must be able to understand: (i) the physical act; (ii) that the act is sexual in nature; (iii) the specific identity of the complainant’s partner or partners; and (iv) that they have a choice to refuse to participate in the sexual activity.
Furthermore, subjective consent by the complainant can be vitiated. In other words, it can be deemed to be of no force or effect. For example, where consent is a product of force or threats.
The Mental Element
Meanwhile, the mental element of sexual assault requires: (i) the accused intentionally touched the complainant; and, (ii) the accused knew that the complainant was not consenting or was reckless or willfully blind as to the absence of consent.
At this stage, the court will examine the defendant’s perception of consent. For example, the defendant can argue honest but mistaken belief in communicated consent.
As mentioned, sexual assault cases are particularly controversial in society. The stakes are high because the outcome will change your life. In addition, the complicated legal process can leave you confused. If you are involved in a sexual case there is nothing more important than having an experienced criminal lawyer on your side. Call Deniz Sarikaya at 647-282-5777 to book your free consultation.