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What is a ‘Prior Sexual Act?’

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Neuberger & Partners LLP

When discussing defending a sexual assault charge, there are often many nuances held within the intimate moments that are extremely important after allegations are made and taken to court.

This was particularly evident in a recent conflict between the Crown and the Court of Appeal in Alberta over the definition of a “prior sexual act.”

But what is a “prior sexual act?”

Consider kissing on the couch and then holding hands on your way to the bedroom, where the sexual activity of a sexual assault charge occurs. Does the sexual activity of the charge start when the bedroom door closes – or does it include the kissing?

Under current Criminal Code provisions and case law, everything that happens before the sexual activity of the charge is not automatically interpreted as part of the act as a whole. Now, that may not be the case. As stated by Joseph Neuberger, “One would think [the kissing and hand holding] are all part of the general flow of the evening, the subject matter of the allegation”, but by “parsing it out” and labelling parts of the interaction, we are creating extremely artificial circumstances and considerations instead. In fact, many judges agree – calling this separation of events “ridiculous.”

Previously, the Crown promoted this “parsing out” by considering only non-consensual activity as the subject matter of sexual assault charges. However, in light of the McKnight case, Goldfinch and J.J., any sexual activity outside the specific act in question is a prior sexual act and although part of the events leading to the sexual interaction that is the subject matter of the sex assault charge, there must be a formal application to admit activities leading up to the alleged assault and only if the evidence is relevant to an issue at trial or grounded in the evidence.

For example, an allegation of sexual assault in a bedroom after a night home during which there was dinner and cuddling on the couch prior to going to the bedroom.  And sexual contact, including cuddling, kissing, or other sexual contact are prior sexual acts and are not part of the transaction of the sexual assault, even if the other sexual contact only happened minutes prior to the alleged sexual assault.  This can even include walking hand in hand to the bedroom where the act of sexual assault is alleged to have occurred.

What happens prior to the bedroom is considered a “prior sexual act.” This distinction requires the use of a motion to evaluate the relevance, breaking up what is authentically considered “human interaction” and ultimately sanitizing the truth and the truth-seeking process in law in my opinion.  Nevertheless, these motions are necessary to admit relevant evidence providing context, narrative and a coherence to the defence evidence.

Though this conflict of interpretation between the Crown and the Court of Appeal in Alberta is subtle, it is incredibly important to stay updated on distinctions such as this. They are an important basis of law in Canada and signal a fundamental shift in evidence law – which will inevitably impact other jurisdictions.Interested in learning more? Check out our YouTube channel and podcast for further discussions.

Have you or someone you love been accused of a criminal offence? Neuberger & Partners LLP offers 30+ years of experience in criminal defence with a track record of success. Book a consultation here.

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