The motive of sexual gratification is not required for an act to constitute sexual assault. *
R. v. V. (K.B.), 1992
* Legal information provided by the Mothers’ Aid Society of Canada does not constitute professional legal advice.
(bolding added:)
I do not propose to attempt to set out a definition of the term “sexual assault.” What elevates an assault to a sexual assault will depend on the circumstances of each case. A sexual assault does not require sexuality and, indeed, may not even involve sexuality. It is an act of power, aggression and control. In general, sexual gratification, if present, is at best a footnote.
In my opinion, once it is established that the conduct in issue constitutes an assault, the effect of the application of force on the victim is significant. Just as Parliament criminalized assault because certain conduct represents an unacceptable interference with the victim’s physical integrity, Parliament has criminalized sexual assault because it represents an unacceptable intrusion upon, or violation of, the victim’s sexual privacy or integrity. See R. v. Chase , supra, R. v. Cook (1985), 1985 CanLII 641 (BC CA), 20 C.C.C. (3d) 18, 46 C.R. (3d) 128 (B.C. C.A.). The determination whether the appellant’s conduct constitutes a sexual assault requires an assessment of all aspects of the impugned conduct.
Although sexual assault is a crime of general intent (see R. v. Chase, supra), the appellant’s purpose in attacking his son is important in these circumstances, as is the part of the child’s anatomy which was involved in the assault.
The appellant’s alleged purpose was to discipline his son for touching certain body areas of others. He considered his son’s behaviour to be inappropriate because of the private and sexual nature of the anatomy involved. He chose to modify what he viewed as inappropriate sexual intrusions by his son by doing to the child what the child had allegedly done to others.
In my view, the appellant’s misguided and primitive disciplinary exercise was an aggressive act of domination which violated the sexual integrity of his son and constituted an assault which can properly be viewed as a sexual assault. The attack is no less a sexual assault than would have been the case had the appellant attempted to discipline his three-year- old daughter in a generally similar manner.
I share the trial judge’s view that it is not important that some of the appellant’s assaultive behaviour took place in front of others. In addition, the presence or absence of sexual gratification is merely one of the factors to be considered in determining whether a sexual assault has occurred (see Chase, supra ). Sexual assault, an act of power, aggression and control, does not require sexual gratification. In some cases, it is inimical to it. In my view, its absence in these circumstances does not detract from the finding that the assault here was sexual in its overall context.
In my opinion, the trial judge was correct in convicting the appellant of sexual assault.
Source: R. v. V. (K.B.), 1992