Understanding sexual violence

Sexual violence and sexual assault: What is it?

Definitions of sexual violence

The concept of sexual violence is broader than that of sexual assault. It encompasses a continuum of physical or psychological acts of violence that are manifested sexually or target sexuality, committed against another person without their consent and with no respect for that person^1,2. In addition to sexual assault, sexual violence includes sexual harassment, sexual exploitation, and sexual cyberviolence.

According to the Quebec government, sexual violence can take many forms and manifest itself in varying degrees of severity. In the most recent Integrated Government Strategy to Counteract Sexual Violence, Domestic Violence and to Rebuild Trust 2022-2027, the concept of sexual violence refers in particular to the issues of sexual assault, sexual exploitation, and sexual harassment, including their various manifestations. All these manifestations are rooted in a dynamic of power relations, exposing the victims to multiple consequences and undermining their fundamental rights³.

In law, the term sexual violence is mainly used in the context of higher education institutions, due to the legislation to that effect. Under the Act to prevent and fight sexual violence in higher education institutions (c. P-22.1), the concept of sexual violence is defined as any form of violence committed through sexual practices or targeting sexuality, including sexual assault. It also includes any other misconduct manifested by unwanted sexual gestures, comments, behaviour or attitudes, including those related to sexual or gender diversity, expressed directly or indirectly, including by technological means. According to this definition, manifestations of sexual harassment also constitute sexual violence.⁴ The Ministère de l'Enseignement supérieur, in its Plan d’action visant à prévenir et à contrer les violences à caractère sexuel en enseignement supérieur 2022-2027 (2022-2027 action plan to prevent and counter sexual violence in higher education), also adopts this definition of sexual violence.⁵

The WHO defines sexual violence as:

“any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.”⁶

In addition to sexual assault, the WHO definition includes a wide variety of types of coercion, such as rape, forced marriage or forced cohabitation, sexual slavery, acts of violence against the sexual integrity of women, and sexual harassment⁶.

Definitions of sexual assault

From the government's perspective

In the Orientations gouvernementales en matière d’agression sexuelle (hereafter, Orientations) published by the Quebec government in 2001, sexual assault is defined as follows:

“Sexual assault is defined as an act of a sexual nature, with or without physical contact, committed by an individual without the consent of the victim or, in some cases, particularly in the case of children, through emotional manipulation or blackmail. It is an act intended to subject another person to the perpetrator’s desires through an abuse of power, the use of force or coercion, or implicit or explicit threats. Sexual assault violates the victim’s fundamental rights, including the right to physical and psychological integrity and security of the person.”⁷

This definition, proposed in the government guidelines, is broader than the sections of the Criminal Code that refer to sexual assault, and includes other sexual offences (e.g., sexual interference, incitement to sexual touching, luring, non-consensual publication of intimate images).⁷

From a legal perspective

In Canada, under the Criminal Code, sexual assault is an assault of a sexual nature that occurs when there is contact of a sexual nature in the absence of consent. It is an offence under the Criminal Code(8). Sexual assault is classified according to three degrees of severity: sexual assault (ss. 271), sexual assault with a weapon, threats to a third party or infliction of bodily harm (ss. 272), and aggravated sexual assault (ss. 273). For there to be a sexual assault, three elements must be present:

• Contact: Physical contact can constitute sexual assault, even if it is over the clothes.
• Sexual nature: The sexual nature of the assault is objectively determined by the circumstances surrounding it, such as the part or parts of the body touched, the words exchanged, and the acts committed. Therefore, in a criminal prosecution, the state does not need to prove that the accused person intended their conduct to be of a sexual nature.
• Lack of consent: Lack of consent occurs (1) when the victim does not consent to sexual contact or (2) when the law provides that the consent is not valid. There is consent when a person expresses, by words or conduct, consent to contact of a sexual nature. It is therefore not necessary for a person to refuse sexual contact through words or actions; it is sufficient that they have not expressed consent for there to be a lack of consent. Consent must also be present at the time the sexual activity takes place, and can be withdrawn at any time. Moreover, the law considers that a person cannot give consent if they are unable to express it (disability, intoxication) or if they are unconscious, if they are incited or counselled to engage in the activity through an abuse of trust, power or authority (e.g., by the use of threats), if they are in situation of dependency, or if they are under 16 years of age, except in cases specifically provided for.  
• Criminal intent: In addition to these elements of the criminal act (actus reus), the person committing the act must also have criminal intent (mens rea) for it to be considered sexual assault. Thus, the perpetrator of non-consensual sexual contact may not have criminal intent if they had a sincere but mistaken belief that the other person had consented to the act.

According to scientific studies and population surveys

In addition, the definitions of sexual assault used in scientific studies or population surveys vary from one study to another. They generally refer to sexual assaults involving physical contact only, which include, for example, sexual contact or acts of penetration. For example, in the two major Canadian surveys documenting sexual assault, i.e., the General Social Survey on Victimization and the Survey of Safety in Public and Private Spaces (SSPPS), sexual abuse experienced in childhood refers to “forced or attempted forced sexual activities” and “unwanted sexual contact” committed solely by adults. For sexual assaults experienced in adulthood, the types included are a little more exhaustive, and include having "sexual intercourse without being able to consent", such as being under the effect of drugs or alcohol".

For more information on the methodologies used in these surveys, see Sources and methodological considerations.

The results of studies and surveys, such as those reporting the prevalence of sexual assaults committed and experienced in a given population, must therefore be interpreted according to the definition they use.

Other commonly used terms

It can be difficult to navigate all the terms used to describe violent acts of a sexual nature. In addition to commonly used terms such as sexual violence and sexual assault, other terms are also used in the media and public space to refer to such violence. These terms are mainly taken from old or current laws and should sometimes be used with caution.  

Rape

Since 1983, in Canada, the offence of rape has been replaced by sexual assault offences in the Criminal Code (ss. 271, 272, and 273)⁸. The offence of rape required proof that a man aged 14 and over had engaged in penetrative sexual intercourse with a woman other than his wife, without her consent. Therefore, in law, the current use of the term “rape” is outdated and inaccurate, and should instead be replaced by “sexual assault involving penetration.” However, the word “rape” is commonly used by the World Health Organization (WHO) to refer to penetrative sexual assault. In everyday language, some people use the term “rape” to more accurately represent the violence they have experienced.

Sexual abuse

The term sexual abuse is mainly used when referring to sexual assault committed against a child (person under 18 years of age). In Quebec, the Youth Protection Act uses the term “sexual abuse” to refer to a situation in which a person under the age of 18 is subjected to or runs a serious risk of being subjected to gestures of a sexual nature by their parents or another person, with or without physical contact, and their parents fail to take the necessary steps to put an end to the situation (s. 38, subpar. 2, par. d)⁹.

Sexual offences

The term sexual offences refers to a sexual act committed without the person’s consent and prohibited by law, and it can include different offences depending on the definition used. For example, Statistics Canada and Quebec’s Ministère de la Sécurité, while both presenting data on sexual offences according to the Incident-based Uniform Crime Reporting (UCR) Survey, include different offences in their respective definitions.

Sexual offence is also commonly used as an umbrella term to refer to both sexual assault and other sexual offences under the Criminal Code. In Canada, under the Criminal Code, sexual offences include various crimes of a sexual nature committed against people of different ages, depending on the provisions in question. Sexual interference, incest, voyeurism, sexual exploitation, and publication of an intimate image without consent are examples of sexual offences. Other sexual crimes, although categorized as offences tending to corrupt morals, such as child pornography and luring, are generally understood, colloquially, as sexual offences.