Answers to Questions About Sexual Assault That You Might Be Afraid to Ask
With the media’s recent attention on the sexual assaults at the University of Western Ontario, you may fully support the survivors and the calls for reform on campus but still have many questions. You may have begun to realize that some of your friends have likely experienced sexual assault. You might find the news hard to hear because you are a survivor of sexual assault. Maybe you are not sure if you were sexually assaulted, or if you sexually assaulted someone.
You might also wonder why survivors of sexual assault do not report to the police.
This article can help answer common questions about sexual assault that you may be too afraid to ask:
What qualifies as sexual assault?
Sexual assault is a violation of an individual’s sexual integrity without that individual’s valid communicated consent (see more detailed definition here). ‘Rape’ used to be a specific criminal offense, but no longer exists in Canada. Now, sexual assault encompasses a wide spectrum of non-consensual sexual activity: it can go from a very minor sexual touching over clothing to a very serious penetration with violence.
The complexity in sexual assault law comes from the meaning of consent. For consent to be valid, it must be both communicated and voluntary.
- While the expression ‘no means no’ is popular, that is not the law. In fact, no means no, but silence can also mean no.
- For example, you cannot consent when you are asleep or unconscious even if the other person involved is your partner or spouse.
- There is no such thing as implied or assumed consent.
- If someone assumed you consented because you were flirting earlier, that does not mean you consented. If someone assumed you consented because you had consented to something sexual with that person a previous time or because you consented to another type of sexual activity beforehand, that does not mean you consented to other sexual activity.
- If there is force involved and you submit to that force, you did not consent. You must have voluntarily consented. You cannot consent as a result of a threat, real or perceived.
- If you did not fight back when someone forced you to engage in sexual activity, that is not consent.
Is it still sexual assault if either person involved was intoxicated?
If you were intoxicated and lost consciousness prior to being touched sexually, you did not consent. If you were so intoxicated that it was obvious to anyone that you did not have the capacity to consent, then that was not valid consent. However, the courts have been inconsistent in determining how intoxicated one has to be before one is incapable of providing valid consent. Until the courts have provided more clear guidance on this issue, your case will be assessed on the facts, and you should not be deterred from seeking help on the basis of having experienced a sexual assault.
If the perpetrator was intoxicated, the perpetrator cannot rely on this fact as a defence. The Criminal Code specifically prohibits a defence of ‘honest but mistaken belief’ that you consented if that belief comes from self-induced intoxication. If the perpetrator was so intoxicated that he was in a state of ‘automatism’ then this may be a defence. However, it is incredibly unusual for someone to reach the extreme level of intoxication to qualify for a defence involving automatism. Typical partying and partying involving binge drinking will not be a defence to someone who is charged with sexual assault.
What should I do if I was sexually assaulted?
Sexual assault, no matter how minor, can be incredibly traumatizing. Addressing and processing this trauma through the help of a mental health professional is highly recommended. You may also want to confide in a person you trust, like a friend or family member. Despite pressures to report, you do not have an obligation to disclose the sexual assault. You should choose to heal from this traumatic event in whichever way is best for you.
If you are in danger, or you require immediate medical attention, call 911. You may be asked to consider having a Sexual Assault Evidence Kit (SAEK) done at the hospital. A SAEK is voluntary and your consent is required. You do not necessarily have to report the sexual assault if you choose to have the SAEK done. You can refuse to have a SAEK done and still report the sexual assault.
If you were sexually assaulted, understand it was not your fault. It is important to try to resist believing in common sexual assault myths or engaging in a ‘victim-blaming’ mindset. Buying into this rhetoric can lead to feelings of shame, embarrassment and have serious consequences on a survivor’s mental health. By understanding that this rhetoric is based on myths and stereotypes, you can take the essential step in your healing process: practicing self-compassion.
It is recommended that you speak with a lawyer specialized in sexual assault, particularly one who is trauma-informed and familiar with working with survivors so that you fully understand your legal options. For more information on accessing free legal advice, click here. To learn how a trauma-informed lawyer specialized in sexual assault can help you before and during the criminal justice process, click here.
Can I get free legal advice?
Yes! If you are a survivor of sexual assault, you can receive up to four hours of free legal advice through the Independent Legal Advice (ILA) program. ILA is available to survivors who are at least 16 years old and who live in Ontario. You can receive ILA before disclosing it to the police. You do not have to disclose your sexual assault to the police if you obtain free legal advice through ILA.
Should I call the police?
It is your choice. Sexual assault is a crime that you may want to report to the police. This is your personal decision. The criminal justice process is not always conducive to a survivor’s healing and can result in survivors experiencing further psychological harm. You are not obligated to report a sexual assault to the police, despite any pressure you are feeling to do so. It is most important that you get informed on your options and choose what is best for your healing. We recommend you seek legal advice before reporting a sexual assault to the police.
There are multiple avenues for seeking legal recourse for a sexual assault. A lawyer can help explain this in greater detail so you understand your rights and the options available to you.
What are Sexual Assault Myths?
Sexual assault myths are common but harmful misconceptions about how survivors of sexual assault should act during, before, and after the sexual assault. Do not believe these myths.
People often unknowingly embrace the myth of ‘the perfect victim.’ It is important that everyone understands the ‘perfect victim’ myth and acknowledge that these are unfair and unrealistic expectations placed on survivors of sexual violence. These myths do not account for how trauma affects survivors, and they are based on misconceptions, false beliefs, and stereotypes.
The perfect victim myth assumes that if you were really sexually assaulted, you would:
- Physically fight back during the sexual assault
- Run from the sexual assault
- Scream in protest during and after the sexual assault
- Immediately tell someone
- Report it to the police
- Never speak to the person who sexually assaulted you again
- Cut all ties with the person who sexually assaulted you
- Appear outwardly traumatized
- Be so traumatized that you are unable to help yourself
- Recite the events of the sexual assault in chronological order with particular attention to detail, despite the ways in which trauma impacts memory
- Act in the stereotypical ways survivors of trauma are depicted in popular culture
If you are a survivor of sexual assault and did not react the way the ‘perfect victim’ would react, you are a part of the vast majority of survivors of sexual assault. No matter what your reaction is to your sexual assault, it is perfectly valid – there is no right way to react.
What is ‘Victim-Blaming?’
People also often engage in ‘victim-blaming’, which is another common rhetoric around sexual assault. ‘Victim-blaming’ is the blaming of a survivor for her actions before, during, and/or after the sexual assault. They are based on the ‘perfect victim’ myths. There are many examples of ‘victim-blaming’, including blaming the survivor for:
- not having covered her drink to prevent being drugged and assaulted
- putting herself in a vulnerable situation (e.g. “Why didn’t you leave his house earlier?” “Why did you go home with him?”)
- dressing provocatively
- being flirtatious
- not running away or standing up for themselves (e.g. “Did you tell him to stop?” “Why did you not push him off of you?”)
- not disclosing the assault to the police
- drinking too much that night
Why are so few sexual assaults reported to the police?
Some may believe that if a crime occurs, it should be reported to the police. However, there are many reasons that survivors of sexual violence would justifiably choose to not report to the police or any other person. If you can relate to any of these, you are a part of the majority of survivors of sexual assault. Only 5% of survivors of sexual assault in Canada report to the police. The following are some of those reasons:
- Survivors have absorbed the ‘victim-blaming’ rhetoric and as a result, falsely blame themselves for being sexually assaulted.
- Survivors do not understand what sexual assault is, and therefore do not realize until later, if ever, that they were sexually assaulted.
- Survivors are sexually assaulted by someone beloved in their community and do not want to face the denigration of that person’s supporters
- Survivors do not want the attention that may come with disclosing
- Survivors feel shame or embarrassment for not having acted as a ‘perfect victim’
- Survivors fear social repercussions by friends or family members
- Survivors are dependent on the perpetrator and fear the loss of support
- The perpetrator is the parent to the survivor’s child, and the survivor does not want the child to be harmed by learning that one parent has sexually assaulted the other
- The perpetrator is the survivor’s spouse or current partner
- Survivors hope to suppress or escape traumatic memories by rejecting or minimizing the sexual assault
- The perpetrator is one of the few people the survivor knows in the country or in the community
- The perpetrator is a person that wields authority over the survivor
- Survivors may feel overwhelmed by the requirement to share in detail painful memories when disclosing the sexual assault to the police
- Disclosing sexual assault to the police is not conducive to the survivor’s healing process:
- They do not wish to actively remember or share the experiences that cause them significant psychological and emotional damage
- They do not trust the criminal justice system to take care of their needs throughout the process and fear re-traumatization
- They do not seek to put the perpetrator in prison
- They are aware of the process for complainants of sexual assault in the criminal justice system and do not wish to be consumed by this process for what may be years before a conviction.
- They are aware of the low rate of conviction in sexual assault matters and do not see the criminal justice system as one that protects their interests.
- They are a racialized person, or a person experiencing poverty or homelessness with anecdotal or personal accounts that cause them to distrust the police’s willingness to treat them with care
- They wish to hold their perpetrator accountable through other formal or informal processes
- They wish to regain control over their lives but the criminal justice system does not afford them the ability to control what is done with the information they disclosed to the police.
If you are a survivor of sexual assault, know that you are not alone. It is most important that you choose a healing process that is best for you.
For information on what happens after you disclose a sexual assault to the police, click here.
For other helpful resources, click here.