We recently saw this news item regarding what certainly seems like a sexual assault case that occurred in Alaska: Link to the Source Article.
Make no mistake, the alleged sexual act in this case would clearly be a chargeable offence in Canada.
Under section 265(1)(b) of the Criminal Code of Canada, a person commits an “assault” when he attempt or threatens, by any act or gesture, to apply force to another person, if he has, or causes that other person to believe that he has the present ability to affect that purpose. This section applies to all forms of assault, including sexual assault.
Under Canadian law, there is no requirement that actual contact be made for an assault, or sexual assault, to have occurred. Rather, it is enough to threaten an assault by an act or gesture. This means, for example, that a person in Canada could be convicted of assault for merely clenching his fist and threatening to punch another person. There is no need for the Crown to prove that any contact was made. An intentionally threatening act or gesture itself is all that that the Crown needs to prove in an assault case, including a sexual assault case.
Unlike the Alaska case, Canadian prosecutors would have no difficulty approving a sex assault charge against somebody alleged to have committed an act such as Mr. Schneider. Clearly, the complainant, Lauren, was not consenting. Because Canadian law does not require actual touching for an assault conviction, even the threat of ejaculating onto an unwilling participant could lead to a sexual assault conviction.
Under the Criminal Code of Canada, sexual assault is an assault which is committed in “circumstances of a sexual nature such that the sexual integrity of the victim is violated”. The legal test amounts to whether viewed objectively, the sexual context of the assault is apparent to a reasonable observer. It is hard to imagine that the actions of Mr. Schneider could amount to anything less than a sexual assault under Canadian law. The “Schneider loophole” is already closed north of the border.