INTRODUCTION AND BRIEF DESCRIPTION
This section states that an accused cannot be found guilty of a sexual offence if they were under restraint, duress, or fear during the sexual activity.
SECTION WORDING
155(3) No accused shall be determined by a court to be guilty of an offence under this section if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.
EXPLANATION
Section 155(3) of the Criminal Code of Canada provides an exemption under certain circumstances where an accused cannot be found guilty of an offense under this particular section. The section relates to sexual intercourse that is non-consensual or where there is a lack of capacity to consent. Specifically, it applies to situations where the accused engaged in sexual intercourse under duress, restraint or fear of the other person involved. The section acknowledges the fact that there may be situations where an individual engages in sexual intercourse because they feel threatened, intimidated or in danger. This could occur in a variety of circumstances such as a coerced sexual encounter with a spouse or partner, being blackmailed into sexual activity, or being forced to engage in sexual activity under threat of physical harm. By granting this exemption, the law recognizes that individuals who engage in sexual activity under duress or fear of violence should not be held criminally liable for their actions. It is important to note that this exemption applies only to the offense related to non-consensual sexual activity and not to other forms of sexual offenses. Overall, section 155(3) of the Criminal Code of Canada provides an important exemption for those who engage in non-consensual sexual activity under duress, restraint, or fear of violence. This exemption ensures that individuals who experience these traumatic and emotionally difficult situations are not further victimized by being held criminally liable for their actions.
COMMENTARY
Section 155(3) of the Criminal Code of Canada provides an exemption to individuals who have sexual intercourse while under restraint, duress, or fear of the other person involved. Essentially, the provision highlights the significance of consent and the importance of a person's ability to provide it freely. The regulation is aimed to protect individuals who are forced into sexual activities against their will by their partner, thus being the first and foremost premise of the Canadian Criminal Justice System. In recent years, the #MeToo movement has brought a transformative change in the way people have perceived and held accountable the perpetrators involved in sexual assault cases. The section 155(3) of the Criminal Code creates an important exception to the concept of consent, which is at the center of the laws governing sexual assault in the country. The section recognizes that sex without consent is not only unacceptable but is also a crime. Consent needs to be given explicitly and must have been conducted without emotional or mental coercion. The concept of consent stipulates that individuals must provide free and voluntary agreement to engage in sexual activities. If the accused can prove that he or she was under restraint, duress, or fear, this exemption can help them escape prosecution under section 155 of the Criminal Code of Canada. The provision serves as a safeguard for individuals who are forced into a sexual relationship or feel threatened into participating in sexual activities, on the fear of retaliation or abandonment. The provision is crucial in protecting people from potential violence, abuse, or exploitation in the Canadian justice system. However, the critics of this provision argue that it can lead to significant difficulties in probing whether consent was given freely or not, especially in situations where there is no physical proof of restraint or duress. Besides, the term 'fear' is broad enough to include any level of coercion, and it can thus be difficult to prove by the prosecution. In conclusion, Section 155(3) of the Criminal Code is an essential provision in recognizing that consent in any sexual activity is vital. The laws that govern sexual assault in Canada ensure that individuals provide free and voluntary agreement to engage in sexual activities. This provision offers a way for individuals who have been exploited or abused in sexual relationships to come forward without fear of prosecution. However, the provision needs to be updated to ensure that coercive tactics or emotional pressure used for obtaining sex against the will of the other person is appropriately recognized and penalized.
STRATEGY
Section 155(3) of the Criminal Code of Canada provides a defence to those accused of sexual assault who were under restraint, duress, or fear at the time the sexual activity took place. This provision is important because it recognizes the power dynamics at play in sexual relationships, particularly those between individuals in positions of authority, and seeks to protect victims from being coerced into sexual activity against their will. Strategic considerations when dealing with this section of the Criminal Code of Canada will depend on the specific circumstances of the case, but they may include the following: 1. Evidence of restraint, duress or fear: In order to argue that the accused was under restraint, duress or fear at the time of the sexual activity, the defence will need to produce evidence to support this claim. This may include witness testimony, physical evidence such as bruises or injuries, or evidence of similar behaviour by the alleged perpetrator in other situations. 2. Credibility of the accuser: Given that the defence will likely argue that the sexual activity was consensual and that the victim only claimed fear or duress after the fact, it is important to carefully consider the credibility of the accuser. This may involve investigating their criminal history, their relationship with the accused, and any history of substance abuse or mental health issues. 3. Alternative defences: It is important to note that this section of the Criminal Code of Canada is not the only possible defence to a sexual assault charge. Other defences may include mistaken belief in consent or a lack of intent to commit the offence. Strategies that could be employed to defend against a sexual assault charge under section 155(3) of the Criminal Code of Canada may include: 1. Challenging the credibility of the accuser: As mentioned above, a key part of the defence strategy may involve presenting evidence to challenge the credibility of the accuser. This could include calling into question their motivation for making the accusation, their prior behaviour or statements, or inconsistencies in their testimony. 2. Providing evidence of consent: The defence may also seek to provide evidence that the sexual activity was consensual, such as witness testimony or text messages exchanged between the parties. 3. Arguing that the accused was also fearful or under duress: In some cases, it may be possible to argue that the accused was also fearful or under duress at the time of the sexual activity, which would negate the intent required for a sexual assault charge. 4. Seeking a plea bargain: Depending on the strength of the prosecution's case, it may be possible to negotiate a plea bargain that reduces the charges or results in a lesser sentence. Ultimately, the key to successfully navigating section 155(3) of the Criminal Code of Canada is to carefully evaluate the specific circumstances of the case, identify the key elements that will need to be proven to support the defence, and develop a strategy that is tailored to the individual needs of the accused.