Definitions

This media kit will discuss four different perspectives on sexual assault, i.e., political, legal, clinical and scientific perspectives, and the different definitions of sexual assault associated with each one.

1. The Québec government has provided a definition of sexual assault from a political perspective in a policy document entitled Orientations gouvernementales en matière d’agressions sexuelles [government directions on sexual assault]. This definition demonstrates the wide array of sexual assault situations that exist, and describes this type of assault as an act of power and domination that is criminal in nature.¹
   [TRANSLATION]
   • “Sexual assault is a sexual act, with our without physical contact, committed by an individual without the consent of the victim or, in some cases, and especially when children are involved, through emotional manipulation or blackmail. It is an act that subjects another person to the perpetrator’s desires through an abuse of power, the use of force or coercion, or implicit or explicit threats. Sexual assault violates the victim’s fundamental rights, including the right to physical and psychological integrity and security of the person (p. 22).
   • This definition applies regardless of the age, sex, culture, religion or sexual orientation of the victim or of the perpetrator of the assault, regardless of the type of sexual act committed or the place or life setting in which it is committed, and regardless of the relationship between the victim and the perpetrator.
   • Certain other terms are also used to refer to sexual assault, including “rape,” sexual abuse,” “sexual offence,” “sexual contact,” “incest,” “prostitution” and “child pornography.”

2. From a legal standpoint in Canada, sexual assault is defined as a form of assault that is sexual in nature.²
   • The law makes certain distinctions based on the age of victims, by providing for specific criminal offences (see the Sexual offences tab) in the case of sexual abuse committed against minors.²
   • In order for there to be sexual assault within the meaning of the law, three conditions must be present:²

     1. The use of “force” against a person

        The use of force does not necessarily involve the use of physical violence or coercion. It occurs as soon as a person touches or threatens to touch another person.

     2. A sexual context

        A sexual context is deemed to exist if the sexual integrity of the victim has been damaged. The sexual nature of an assault is determined on the basis of all the circumstances surrounding the assault, on the part(s) of the body that are touched, the words that are said, the acts that are committed and the intention of the perpetrator. However, the latter’s intention is not always a good indicator of the presence of a sexual context, particularly because touching sexual parts of a person’s body is by its very nature a sexual act, regardless of the intention of the person who commits the act (except in caregiving or medical contexts).

     3. Lack of consent

        Consent is what makes the difference between sexual contact and sexual assault within the meaning of the law. Consent is the voluntary agreement of any person who participates in a sexual activity, and it must be clearly expressed by words or conduct. A person cannot give consent, particularly if he or she is incapable of expressing it (e.g., because of a disability or intoxication); if he or she is in a situation where a position of trust, power or authority is being abused (e.g., by the use of threats); if he or she is in a relationship of dependency; or if he or she is under 16 years of age, except in certain specific cases. In addition, consent must be expressed by the person concerned; it is not valid when given by a third party.

3. The Association des centres jeunesse du Québec³ proposes a definition of sexual abuse against children that reflects a clinical perspective.

   [TRANSLATION]

   “Any act providing or seeking sexual stimulation that is inappropriate because of the age or development of the child or the young person concerned and that thus violates his or her bodily or mental integrity, and where the perpetrator is related to the victim by blood or is in a position of responsibility, authority or power towards the child or the young person”³ (p. 15)

4. The definitions of sexual assault used in scientific studies vary widely. Generally speaking, they refer to sexual assault with physical contact. Therefore, it is necessary to consider the specific definition used in a study when it comes to interpreting the study’s results.

Types of sexual assault

There are several types of sexual assault depending not only on the nature of the acts committed, but also on the relationship between the victim and the person who commits the sexual assault. The Criminal Code provides for a number of sexual offences (see the Sexual offences tab), which can take various forms.

Types of sexual assault according to the nature of the acts committed

Sexual assault can occur with or without physical contact. The seriousness of the assault varies depending on the acts committed.^4,5,6

Sexual assault with physical contact

• Rape/sexual relations with penetration

  • Act of penetrating, however slightly, the vulva or anus using a part of the body (penis, finger, tongue) or an object; or
  • Act of penetrating, however slightly, the mouth with the penis.

  Manifestations:

  • Oral-genital contact (e.g., cunnilingus, fellatio),
  • Oral, vaginal or anal penetration,
  • Gang rape,
  • Sexual murder.

• Attempt to commit sexual assault with penetration (attempted rape)

  • Attempted, but not completed, sexual assault with penetration. Generally, this involves sexual touching.

  Manifestations:

  • Sexual kissing,
  • Sexual touching* of the genitalia (e.g., penis or vulva), anus, groin, breasts, thighs or buttocks.

  *Sexual touching is committed with the intent to commit penetration.

• Sexual touching/sexual contact

  • Sexual contact* that includes intentional sexual touching, either directly or through the victim’s clothing.

  Manifestations:

  • Sexual kissing,
  • Sexual touching* of the genitalia (e.g., penis or vulva), anus, groin, breasts, thighs or buttocks,
  • Frotteurism.

  *Does not include touching required for the normal care of a child or for attending to his or her day-to-day needs.

Sexual assault without physical contact

• Sexual assault without physical contact

  • Sexual assault that does not include physical contact of a sexual nature.

  Manifestations:

  • Sexual harassment
  • Forced exposure to sexual acts (pornography or actual sexual activity),
  • Exhibition or exposure of the genitalia,
  • Inciting a child to touch his or her body or to masturbate,
  • Making a visual recording of a sexual nature of a child

Types of sexual assault according to the victim-perpetrator relationship

Various types of sexual assault can be identified on the basis of the relationship between the victim and the perpetrator. Assaults can thus be described according to whether they occur within the victim’s immediate or extended family, outside his or her family or in a therapeutic context. However, the Canadian Criminal Code does not take into account the victim-perpetrator relationship, except in the case of incest offences (see the Sexual offences tab) and sexual abuse of minors.

• Intrafamilial sexual abuse

  The term “intrafamilial sexual abuse” is used when the perpetrator is a member of the immediate or extended family. In the case of minors, in particular, the perpetrator can be the victim’s father or mother, the father’s or the mother’s spouse, a sibling, a grandparent, an uncle, aunt or cousin. It should be noted that within the framework of the Youth Protection Act (YPA) and interventions by the Directeur de la protection de la jeunesse (DPJ) [director of youth protection], the term “intrafamilial sexual abuse” is used solely to refer to situations where the perpetrator is the victim’s natural or adoptive mother or father.³

• Extrafamilial sexual abuse

  The term “extrafamilial sexual abuse” is used when the perpetrator is not a member of the victim’s immediate or extended family. Extrafamilial sexual abuse includes assault by an acquaintance (i.e., a person from the victim’s network of social and other contacts, such as a teacher, caregiver, family friend or neighbour) and assault by a stranger.

• Sexual assault in a conjugal context

  Sexual assault can be committed in conjugal relationships, between partners of all ages. It is a criminal form of spousal violence. Spousal rape has been an indictable offence since 1983, together with all forms of sexual assault between spouses. The perpetrator and the victim of a sexual assault may thus be married or in a civil or de facto union, or be dating partners.

• Sexual misconduct

  If a physical or mental health professional takes advantage of his or her professional relationship with a person to whom he or she is providing services in order to have sexual relations with that person or to make improper gestures or remarks of a sexual nature during that relationship, the professional commits an act that is derogatory to the dignity of his or her profession and strictly prohibited by the relevant professional code. In addition, the professional may be found guilty of sexual assault within the meaning of the Canadian Criminel Code.^7,8 Therefore, even intimate relationships that are egalitarian and mutually desired between a health professional and a client are not acceptable because of the power imbalance between the two individuals.

Sexual offences provided for in the Canadian Criminal Code

The Criminal Code provides for a number of sexual offences for which criminal charges may be laid.

• Aggravated sexual assault (level 3) (s. 273)

  Sexual assault in which the victim is wounded, maimed or disfigured, or his or her life is endangered by the perpetrator.⁶

• Agreement or arrangement by a means of telecommunication to commit a sexual offence against a child (s. 172.2)

  Making an agreement or arrangement with another person by any means of telecommunication to commit a sexual offence against a person under 14, 16 or 18 years of age.

• Anal intercourse (s. 159)

  Anal intercourse is an indictable offence except if it is engaged in, in private, between a husband and a wife or any two people aged 18 or over both of whom consent to the act.^6,9 This section of the Criminal Code has been declared unconstitutional by the Québec Court of Appeal and the Ontario Court of Appeal.

• Bestiality (s.160)

  Sexual activity with an animal, or engaging in this type of activity in front of a child or inciting a child to engage in it.¹⁰

• Child pornography (s. 163.1)

  The definition of child pornography under the Criminal Code is very broad and refers to any  photographic, film, video or other visual representation that shows a person who either is or is depicted as being under 18 years of age and is engaged or is depicted as being engaged in explicit sexual activity or who shows his or her sexual organs or anal region for sexual purposes. It also includes any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under 18 years of age that would be a criminal offence or whose dominant characteristic is the description, presentation or representation, for sexual purposes, of sexual activity with a person under the age of 18 that would be an offence. Child pornography offences pertain to the making, distribution, transmission, sale, importing, exporting, possession or accessing of child pornography.^11,6,10

• Common sexual assault (level 1) (s. 271)

  Any physical contact of a sexual nature without the person’s consent, from touching to complete sexual intercourse.^2,6 This type of assault does not cause bodily harm to the victim.⁹

• Corrupting children (s. 172)

  Endangering the morals of a child or rendering his or her home an unfit place for the child, through an immoral attitude^6,9.

• Exposure (subs. 173(2))

  A criminal offence where a person exposes, in any place and for sexual purposes, his or her genital organs to a child under the age of 16.⁶ Being nude in public corresponds to the offence of nudity (s. 174).

  • Note: Exposing oneself is also considered a form of sexual deviance.

• Householder permitting sexual activity by or in the presence of a child (s. 171)

  A person who has control of premises and knowingly permits a minor to be in or on the premises for the purpose of engaging in unlawful sexual activity.

• Incest (s. 155)

  A situation where a person engages in sexual intercourse with a person that he or she knows is related to him or her by blood, i.e., parent, child, brother, sister, grandparent or grandchild.⁶ In this context, “brother” and “sister” include “half-brother” and “half-sister”, i.e., a person with whom the brother or sister shares a biological parent.²

• Indecent act (subs. 173(1))

  An indecent gesture committed in a public place in the presence of one or more people, or in any place with the intent to insult or offend a person.

• Invitation to sexual touching (s. 152)

  A situation where a person, for sexual purposes, invites, counsels or incites a person under the age of 16 to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16.⁶

• Luring a child by a means of telecommunication (s. 172.1) or Internet luring

  Using a computer or other means of telecommunication, particularly the Internet, to communicate with a minor (by email, chatting or instant messaging) for the purpose of committing a sexual offence against or kidnapping  the minor.^6,10

• Making sexually explicit material available to a child (s. 171.1)

  Making sexually explicit material available to a person who is under the age of 14, 16 or 18 for the purpose of facilitating the commission of a sexual offence.

• Parent or guardian procuring sexual activity or procurer or householder permitting sexual activity by or in the presence of a child (ss. 170 and 171)

  A parent or guardian of a child under the age of 18 who procures the child for the purpose of engaging in an unlawful sexual activity with a person other than the parent or guardian; or any person who has control of premises and knowingly permits a minor to be in or on the premises for the purpose of engaging in unlawful sexual activity.⁶

• Procuring of an adult (subs. 212(1)) or a minor (subs. 212(2)) / prostitution of a minor (subss. 212(2.1) and 212(4))

  A situation where a person offers, attempts to obtain or obtains for consideration the sexual services of a person or of a child under the age of 18 (i.e., prostitution), lives wholly or in part on the avails of juvenile prostitution, or encourages, compels or coerces another person to engage in prostitution.^6,10

• Sexual assault committed outside Canada and child sex tourism (subss. 7(4.1) to 7(4.3))

  Travel outside Canada for the purpose of engaging in sexual activities with children that would be unlawful in Canada. Any person who engages in such activities would face criminal charges in Canada, as if they had committed the offence on Canadian soil, and would be liable to the penalties applicable in Canada.^6,10 The same conditions apply to trafficking-in-person offences committed outside Canada

• Sexual assault with a weapon (level 2) (s. 272)

  Sexual assault in which the perpetrator carries, uses or threatens to use a weapon or an imitation thereof, threatens to cause bodily harm to a person other than the victim or causes bodily harm to the victim, or in which several people commit sexual assault against a person.⁶ The psychological damage resulting from sexual assault can be considered bodily harm.

• Sexual exploitation (ss. 153 and 153.1)

  A situation where a person commits sexual interference or an invitation-to-sexual-touching offence when he or she is in a position of trust or authority towards a young person 16 or 17 years of age, is a person with whom the young person is in a relationship of dependency, or is in a relationship with the young person that is exploitative in any way.⁹ Section 153.1 also provides for a sexual exploitation offence when sexual interference or an invitation-to-sexual-touching offence is committed against a person with a mental or physical disability.^6,10

• Sexual interference (s. 151)

  Touching, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16, for sexual purposes.⁶

• Trafficking in persons/Trafficking of children (ss. 279.01 and 279.011)

  A situation where a person recruits, transports, transfers, receives, holds, conceals or harbours a person or a child, or exercises control, direction or influence over the movements of a person or a child for the purpose of exploiting the person or the child or facilitating his or her exploitation (sexual or non-sexual).⁶ It may therefore include prostitution or sexual slavery. Trafficking in persons or children can occur within Canada (between provinces and territories or within a province or territory) or involve other countries.⁶

• Voyeurism (s. 162)

  Secretly observing a person ― including by mechanical or electronic means ― or making a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy.⁶

  • Note: Voyeurism is also a form of sexual deviance.