Sexual assault is a creation of statute designed to capture those unwanted sexual advances which fall short of rape or which, while bereft of violence or even contact, nonetheless offend the recipient and are clearly sexual in nature.
Where such an inclusive definition is set out, even sexual acts of which the victim is unaware would be punishable, such as voyeurism.
Yet other jurisdictions use the term to capture sexual offences which include contact between the offender and the victim. The Penal Code of Texas, circa 2009, at §22.011 defines sexual assault as requiring sexual contact and the use of compulsion or force.
In R v Chase, the Canadian Supreme Court, per Justice McIntyre, wrote:
"Sexual assault is an assault within any one of the definitions of that concept in ... the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.
"The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual."
In relation to the tort of sexual assault, Justice Klebuc of Saskatchewan wrote, in LH v Canada:
"Assault should be distinguished from battery, although the two are often blurred together and called assault. This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.
"The addition of the word sexual as a descriptor to the aforementioned torts contemplates conduct of a sexual nature that threatens or actually violates the plaintiff's sexual integrity ..... Therefore, an assault by means of menacing threats of a sexual nature may occur without any touching... "
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