CAN SEXUAL ASSAULT CHARGES BE DROPPED EASILY?
When determining whether or not to prosecute a sexual assault case, the Crown must consider two questions; whether there is a reasonable prospect of conviction, and whether there is a public interest in prosecuting the individual. The question of whether there is a reasonable prospect of conviction rests on whether the Crown believes they have enough evidence to secure a conviction. The question of whether it is in the public interest to prosecute the individual rests on whether the Crown believes it would be in everyone’s best interest to punish the individual for their conduct.
In cases of sexual assault, the Crown will rarely withdrawal a charge because it is not in the public interest to prosecute the individual. Sexual violence is a very serious offence and is treated as such by the Court.
There are situations however, where the Crown may decide to withdrawal a sexual assault charge due to a lack of reasonable prospect of conviction. This can occur in many different circumstances. In some situations, a sexual assault complainant will change their mind and withdrawal their allegation. This may occur because the complainant does not wish to participate in the criminal proceedings, or because the accused is known to the complainant and the complainant does not wish for the accused to get into trouble. In some situations, the complainant may feel as though they will be revictimized by being forced to participate in the trial process.
In cases where the complainant recants and does not wish to proceed with the charge(s) because they do not want the individual to get into trouble, or simply do not want to deal with the situation, the Crown is unlikely to withdrawal the charge(s) and will try to proceed using the evidence already collected.
In some cases, the Crown may rely on KGB statements, which are videotaped statements taken by the police when the complainant initially reports the sexual assault. The Supreme Court of Canada has ruled that these statements may be played in court as evidence in cases where the complainant has recanted their statement. Where the Crown utilizes a KGB statement as evidence, an accused may be convicted even where the complainant testifies that no assault occurred. In situations where the complainant wishes not to proceed because it would be psychologically damaging to them, the Crown is more likely to consider withdrawing the charge(s).
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Can I get a Peace Bond for my Sexual Assault Charge(s)?
The Crown may agree to drop charges against an accused if the accused agrees to sign a peace bond in certain cases. Peace bonds are generally only available in the most minor of sexual assault cases. The offence of sexual assault is defined very broadly by the Criminal Code and encompasses everything from an unwanted touch on someone’s behind at a bar, to forced intercourse.
In cases involving minor allegations, the Crown may agree to a withdrawal the charge(s). This may occur where it would not be in the interest of justice to give the accused a criminal record, and where the accused agrees to keep the peace and be of good behaviour as well as abide by any other conditions imposed by the Court for a period of time as set by the Court. Additionally, the Court will generally set a monetary amount to be associated with the peace bond that the accused must pay to the Court if they violate the conditions of the peace bond. Should the accused violate the conditions of the peace bond, they may also be charged with an additional breach offence as well as be required to pay out the money associated with the peace bond. It is important to note that a peace bond is not a criminal finding of guilt.
Can I get an Absolute or Conditional Discharge for my Sexual Assault Charge(s)?
Another option in some sexual assault cases is for the accused to attempt to get the charge(s) against them discharged, either absolutely or conditionally. An absolute discharge is the lowest level of sentencing an adult offender can receive. It essentially means that the Court has made a finding of guilt but does not register the conviction. This means the accused will not have a criminal record, despite the Court finding that the individual committed the offence.
An absolute discharge may be granted in situations where the Court does not feel as though it is in the best interest of justice to give the accused a criminal record. This will generally only be available where the accused has no prior criminal history, where the allegations are not of a serious nature and where such a conviction would have disproportionately negative consequences on the accused. There are no conditions attached to an absolute discharge. The accused will be free to go about their life with no restrictions.
A conditional discharge is similar to an absolute discharge, except with a conditional discharge there are conditions that the accused must abide by for the duration of the time period imposed by the Court. Being granted a conditional discharge is similar to being place on probation, as the accused must agree to follow certain rules. If the accused successfully completes their probationary period, the conviction will be discharged after the time period set by the Court has elapsed. If the accused violates the terms of their probation or fails to do anything else prescribed by the Court, the discharge may be revoked, and the charge(s) will return and be registered as a conviction against the accused.
Due to the serious nature of sexual assault allegations, the Crown will generally only offer a discharge in cases where the allegations are less serious, and the accused does not have a criminal history. Often, the Crown will require the accused to complete some sort of counselling prior to agreeing to a discharge.
If you have been charged with sexual assault it is important to contact experienced legal counsel immediately. Our Firm can help guide you through the process. It is imperative to consult legal counsel prior to making any decisions to ensure you do not do anything that may inadvertently damage your case later. Our Firm has experience dealing with sexual assault allegations of all types and can assist in making the correct strategic decisions to ensure the best possible outcome.