The Legal System and Sexual Assault

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Below is a collection of bits of information about criminal court and civil court as it relates to sexual assault.

What is a bail hearing?

A bail hearing is used to determine whether or not an accused should stay in jail or be released after being charged.  The Crown Attorney will give the Justice of the Peace reasons why they think the accused should be held in jail and the Defense will give reasons why they think the accused should be released.  Sometimes the accused needs to have a ‘surety’ in order to be released.  This is someone who is willing to pay money (bail) and be prepared to be responsible for the accused once they are released.  Most times, the accused will be released but there will be conditions that the accused must agree to abide by.  These conditions almost always include no contact with you or anyone close to you.  If the accused breaks any of the conditions s/he agrees to, you should call the police immediately.

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What is a publication ban?

Before the trial, you may be asked if you want a publication ban.  This means that no information that could identify who you are can be released or made public.  The accused’s name may be kept secret if revealing it can identify you.  If you want privacy, the Crown will request a publication ban from the judge.  It is the judge who makes the final decision about a ban.  A publication ban is almost always put into place if a woman requests it.

What is a Preliminary Inquiry?

A preliminary inquiry is held to determine if there is enough evidence to proceed to trial and is only held when the Crown proceeds by way of an indictment (seeking a more serious charge).  You will most likely need to testify at this inquiry and you will be cross-examined by the defence.  Two things can happen;

  • The judge can determine that there is not enough evidence and there is no trial.
  • The judge can determine that there is enough evidence and the accused can plead not guilty and then choose the type of trial s/he wishes (trial by judge and jury or trial by judge only) or can plead guilty and be sentenced.

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What is a Victim Impact Statement?

If the accused is found guilty, you can provide a written account of how the sexual assault has affected you physically, emotionally, psychologically and financially.  It is to be given to the crown before the sentencing.  It should NOT be given to the crown before or during the trial as it can be used as evidence.  These statements are very helpful in letting the judge know how the sexual assault has affected you and the impact it has had on your life.  The defence is given a copy of the statement and it is shown to the accused.  The defence has the right to cross-examine you on your statement.

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Criminal Court
The police will charge the person who sexually assaulted you.  They will need evidence (proof) for this. Even a person who sexually assaulted you long ago can be charged if there is proof.
You will not have to hire a lawyer.  You will be a witness for the Crown Attorney.
The Crown will have to prove ‘beyond a reasonable doubt’ that the sexual assault happened.  This can be very hard to do.
The Crown will have to prove that you did not ‘give consent’ (agree to) the sexual act.  You do not have to have said ‘NO’.  Some women ‘agree’ to have sex because they are scared into it.
Your perpetrator may say that you agreed to sex or that he thought you agreed to sex.  He may say that he was so drunk or drugged that he didn’t know what he was doing.  He may say that it didn’t happen at all.
The law says that your sexual history or reputation shouldn’t be asked about unless it is important to the case.  However, if this happens you may feel like you are the one on trial.
Penalties for sexual assault are sometimes not very tough.  Often, when the assailant and victim know each other and there are no physical injuries, he will not even go to jail.  You must be prepared in case this happens.
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Civil Court
You can sue your perpetrator for hurting you.  You can also sue other people if they let the assault happen (for example, the school board if you were hurt by a teacher)
If you win, your perpetrator will have to pay you, so civil court is only useful if your perpetrator has money.
It is a little easier to prove a case in civil court than in criminal court.
You will have to hire a lawyer.  It can be expensive and take a long time. Legal Aid does not pay for these cases.
Some lawyers might take your case on a contingency basis (for example, if you win, your lawyer will get a percentage of the award).  This will depend on their opinion of your case once they look at all the facts.
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Categories: Dating Violence, Domestic Violence, Sexual assault, Trauma, Victimization

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