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97 Can. B. Rev. 1 (2019)

handle is hein.journals/canbarev97 and id is 1 raw text is: 










VoL. 97                         2019                           No. 1



       CONFRONTING THE SEXUAL ASSAULT OF
  TEENAGE GIRLS: THE MISTAKE OF AGE DEFENCE
         IN CANADIAN SEXUAL ASSAULT LAW

                 Isabel Grant and Janine Benedet*


 Teenage girls experience high rates of sexual assault. The Criminal Code
 permits the Crown to substitute proof of young age for proof of non-consent
for sexual assault and related offences applicable to young complainants.
This paper focuses on the defence of mistaken belief in age. It provides a
defence where the accused honestly believed that the complainant was at or
above the age of consent and where the accused took all reasonable steps to
ascertain her age. A review of the cases considering the defence indicates that
it is often applied incorrectly, where the accused does not have any belief as
to the complainant's age, or where he has not taken any steps to ascertain her
age beyond a visual observation. These cases are vulnerable to stereotypical
reasoning that girls are old enough based on appearance, dress, alcohol
consumption and prior sexual experience. Even in cases where the accused
has little reliable information about the complainant, he may be entitled to
proceed with the information available at the time, rather than being required
to refrain from sexual activity. The paper argues for a reconsideration of how
the defence is applied to bring it more in line with other developments in
sexual assault law.


Les adolescentes sont tr&s nombreuses tre victimes d'agressions sexuelles.
En cas d'agression sexuelle et d'infractions connexes concernant de jeunes
plaignantes, le Code criminel autorise la Couronne   remplacer la preuve de

    I   Professors of Law, Allard School of Law, University of British Columbia. This
paper benefited from the diligent research assistance of JD students Hannah Roche and
Allison Sharkey and from funding from the Law Foundation of British Columbia and the
Social Sciences and Humanities Research Council.


THE CANADIAN BAR REVIEW

   LA REVUE DU BARREAU
          CANADIEN

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