A person does not need to fight back or resist in order to prove that she or he did not consent to unwanted sex.

In Canada, the terms "sexual abuse" and "sexual assault" are often used interchangeably, but they have distinct meanings.

Sexual assault is any non-consensual activity that interferes with a person’s sexual integrity. This can include a range of physical acts such as unwanted kissing, touching, vaginal penetration, anal penetration, and oral sex. 

Sexual assault is a criminal offence and is considered a form of sexual violence. The key element of sexual assault is the absence of consent.

Consent must be given freely and enthusiastically, without any form of pressure or coercion. It can be withdrawn at any time and must be specific to each activity.

Sexual abuse is a broader term that encompasses any form of unwanted sexual activity, including sexual assault. It can also include non-physical acts such as being forced to look at pictures or being exposed to sexual acts. Sexual abuse can occur in various contexts, including within families, within sports teams, within relationships or by strangers.

For sexual activity to be consensual, it must be freely and enthusiastically given. Consent must be communicated and it must be voluntary.  If a person was forced to participate in sexual activity or if a person did not say no to the sexual activity, the sexual activity was not consensual. 

Silence does not equal consent.

Sadly, only 45% of people in Canada fully understand what it means to give consent to sexual activity.

A person must be 16 years of age to legally consent to sexual activity.

However, a person who is 16 years of age cannot consent to sexual activity if:

• their sexual partner is in position of trust or authority towards them, for example their teacher or coach;
• the young person is dependent on their sexual partner, for example for care or support; or
• the relationship between the young person and their sexual partner is exploitative.

A 14 or 15 year old can consent to sexual activity as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person.

This means that if the partner is five years or older than the 14 or 15 year old, any sexual activity is a criminal offence.

Sexual assault is unfortunately quite common in Canada. 

Approximately 4.7 million women – or 30% of all women aged 15 and older – have been sexually assaulted outside of an intimate relationships at least once since age 15.

In over half (52%) of sexual assault incidents, the perpetrator was a friend, acquaintance, or neighbour of the victim.

Sexual assault is a gendered crime. Women are victimized at a higher rate (37 incidents per 1,000 women) than men (5 incidents per 1,000 men).

Bisexual people are sexually assaulted at a high rate. People who are bisexual experienced a rate of 541 sexual assault incidents per 1,000 population––nearly 29 times higher than the rate among heterosexual Canadians (19 per 1,000).

Women with a disability are sexually assaulted at a high rate. There were 94 incidents of sexual assault for every 1,000 women with a disability in 2019, a rate over four times higher than that among women without a disability (22), and well above the rates among men with (15) or without (7) a disability.

The rate of sexual assault against indigenous women is approximately three times higher than among non-Indigenous women.

People, especially women, who are sexually victimized in childhood are more likely to be victimized in the future. Those who experienced sexual abuse as children report sexual and physical assault at rates three times higher than those who did not experience childhood sexual abuse.

Studies indicate that those who have experienced sexual violence are not confident in the police, the court process, or the criminal justice system in general.

Other reasons include victims thinking that the sexual violence was not serious enough, they feared not being believed, they had feelings of shame or embarassment, and even uncertainty if the sexual violence was actually sexual violence due to knowing the perpetrator or other factors. In circumstances where the victim knows the perperator, she or he may struggle to comprehend how someone they know could hurt them, and they may not want to get that person into "trouble". 

Cultural norms can result in many girls being socialized to “be nice” and to "be good", particularly in response to stress or conflict. This pressure can be so entrenched in a girl or woman's thinking that it can make speaking up about sexual abuse or sexual assault very difficult.

The traumatic impact of  sexual abuse or sexual assault depends on many factors, including but not limited to the following:

• the nature of the assault itself;
• how long it lasted;
• the extent of the physical harm;
• the victim’s relationship to the perpetrator;
• whether the victim has had an earlier childhood history of abuse or neglect; and
• how family, friends and others respond to what the victim says about the assault.

Victims may experience the impact of a sexual assault physically and psychologically over both the short and long term.

These impacts can result in any one of or combination of the following experiences:

• shock and anger;
• fear and anxiety;
• hyper-alertness and hypervigilance;
• irritability and anger;
• disrupted sleep, nightmares;
• rumination and other reliving responses;
• increased need for control;
• tendency to minimize or deny the experience as a way of coping;
• tendency to isolate oneself;
• feelings of detachment;
• emotional constriction;
• feelings of betrayal; and
• a sense of shame.

Trauma-informed lawyering is an approach that puts the realities of a client's traumatic experiences at the forefront of their engagement with the client. 

Trauma-informed lawyering requires lawyers to engage with their clients in such a way that recognizes and responds to the impact of trauma on clients. This approach involves understanding that a person’s behavior is likely or will be influenced by past traumatic experiences.

Trauma-informed lawyers understand how trauma can affect behaviours and decision-making and will work to create a supportive and safe environment for their clients, to minimize the trauma that the legal process can create.

Only trauma-informed lawyers should be representing victims of sexual abuse and sexual assault.