Chapter 4: Assault

Introduction

A trend in society is a much greater readiness to use the legal system both to seek redress for wrongs and to use the force of the law as a means for revenge, ego gratification or even titillation. Obviously, the legal system is appropriately used for the former; unfortunately, the very provisions that exist for this use also permit abuse. There has been an enormous increase in the number of teachers charged with assault and with a variety of sexual offences. While it is possible that there has actually been an increase in the incidence of such criminal behaviour, it is much more likely that the increased number of charges stems from two other factors. First, in society in general and in the schools in particular, there has been a disappearance of the stigma that used to be attached to the victim, the preconception that victims must have been at least partly responsible for being victimized; as a result, victims are much more likely to complain than they were in the past. Second, because such cases are now far more common, more accusations against innocent persons are also being laid, either maliciously or because of mental instability on the part of the accusers. Thus teachers are increasingly at risk of trumped-up or grossly exaggerated accusations. The mere fact that there may be little or no substance to such accusations is of scant comfort. The anguish of a criminal trial is substantial and the risk of conviction of an innocent person is not negligible.

Nonsexual Assault Offences

Common assault

The charge that is often laid against a teacher in the employment context is common assault. It is defined by section 265 (1) of the Criminal Code (see box that follows). There are three elements of common assault: (a) lack of consent by the victim, (b) intention and (c) an application of force to the victim (or the threat of force that the victim believes will be carried out).

If a person consents to the application of force, any subsequent touching within the scope of that consent cannot amount to an assault. Such consent must be freely given, not coerced by the use of authority or by fraud. Provocation, such as insulting words or gestures, is not a defence. The application of force must be intentional. Accidental contact does not amount to an assault, whether or not it produces injury. By the same token, if there was any intent at all to make contact, the fact that injury was far more severe than intended is of no significance. It is not strictly necessary that there be an application of force. Mere touching can amount to an assault. 

Criminal Code

265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Other

The Criminal Code provides for other forms of assault. Each involves all of the elements of common assault plus additional aggravating factors. It is an offence to assault someone with a weapon or cause bodily harm. It is an offence to commit assault resulting in wounding (aggravated assault). It is an offence to assault a peace officer in the execution of the officer’s duty.

Sexual Assaults

Sexual assault

Sexual assault is defined as conduct that includes all of the elements of common assault plus one additional element. This is that the assault is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated and/or so that the accused may gain some sexual gratification thereby. The sexual nature of the assault must be detectable by an objective standard. It is not necessary that contact be made with the victim’s sexual organs or that the assaulting party’s sexual organs be involved. Even a “pat on the behind’’ can be a sexual assault if it is done to obtain sexual gratification or if it violates the sexual integrity of the victim.

The court will consider several factors in determining whether or not an assault has been sexual, including

  • the parts of each of the bodies involved, 
  • the nature of the contact, 
  • the surrounding circumstances, 
  • any gesture or comments (including threats or the use of force) accompanying the assault, and 
  • the intent of the assaulting party. 

As in the case of common assault, the lack of consent on the part of the victim is an element of sexual assault. However, consent is no defence in a sexual assault charge where the victim is less than 16 years old, nor if it has been obtained by the imposition of authority.

Sexual interference

This is a specific form of sexual assault where a person touches a part of the body of a person under 16 years old with a part of the body or an object for a sexual purpose.

Invitation to sexual touching

This also applies to persons under 16 who are “invited, counselled or incited’’ to touch the body of another person. It differs from sexual assault in that only the invitation, not actual touching, need occur.

Sexual exploitation

This offence is very similar to the two preceding ones, but applies specifically to any person who is in a position of trust or authority toward a young person. This would certainly include teachers.

Knowingly permitting prohibited sexual activity

This applies to an “owner, occupier or manager of premises’’ permitting such activity involving a person under 18. This opens up many areas where teachers may be at risk but particularly in cocurricular activities such as school dances and extended field trips.

Indecent exposure or act

A person doing an indecent act in public or exposing his or her genitals for a sexual purpose to a person under 16 in any place is guilty of an offence.

Implications for Teachers

These offences are very broadly defined. It is easy to see how false allegations could be made in a wide variety of innocent student–teacher interactions. This is particularly so where the students and/or parents involved are mentally or emotionally unstable or have some axe to grind with a teacher. Innocence alone will not save one from accusations, nor even necessarily from conviction. Judges trying such cases are human beings and frequently must make a best guess as to which party is lying and which is telling the truth. They will not always be right.

Children are human. They have been known to make up stories to keep themselves out of trouble with their parents or to shift the blame in a situation to a teacher. Some children are unstable. Some have difficulty coming to grips with their own developing sexuality. Often a child who has to face his or her parents with the fact of having been in trouble at school will try to cause the parents to become more interested in the teacher’s conduct. In such scenarios, an accusation that “she hit me’’ or “he touched me’’ is made to parents in response to inquiries as to why the pupil is in trouble at school or is not performing up to his or her ability. Once the parents respond with horror and call the police (a response that is often totally unexpected by the untruthful child), children find it difficult to admit their fabrication. They feel they must continue to maintain their story for fear of getting into trouble if they do not.

Parents are also human. They can be expected to react strongly to assertions of teacher assault raised by their children. Any suggestion of sexual assault is bound to be treated quite seriously by a responsible parent. In some cases, parents have a quarrel with a teacher that is unrelated to school, but will stoop to using any ammunition against the teacher that is available, even unfounded rumours of inappropriate conduct.

Advice

How can teachers avoid the sorts of problems that have been dealt with here? Obviously, they should studiously avoid behaviour that would give rise to legitimate charges. Teachers who feel strong urges to commit assault, sexual or not, should seek professional counselling.

Many authorities, particularly those who frequently deal with cases of this nature, suggest that teachers should refrain from all physical contact with students. This runs counter to the beliefs of many teachers and some educational theorists that hugs and pats are important positive acts. Each individual teacher will have to decide what is the best course of action. This is one case where it seems that one extreme or the other is preferable to some middle ground. That is to say that it is better to do a lot of hugging and patting than to hug or pat only on rare occasions.

Other prudent and useful tips are as follows:

  • Be completely familiar with the school board’s and the school’s policies with respect to student discipline. 
  • Document your discipline of students. Such documentation should be retained in your permanent personal files as many cases of accusations have been made years later. 
  • Avoid being alone with individual students, particularly those in the early years of puberty. If you must be alone with an individual student, ensure that the door and window blinds or drapes are open and that the time is kept to a minimum. 
  • Unless you have special training or assignment in counselling, avoid counselling students who display signs of sexual, emotional or mental instability. At the very least, consult regularly with the teacher counsellor in the school or with someone else with expertise in this area and keep a record of such consultations. 

What to Do If You Are Accused

The primary rule in dealing with allegations of assault or sexual assault is remain silent. You have the right to do this under the Canadian Charter of Rights and Freedoms. That right is the best available protection for the individual. Do not waive this right until after you have seen a lawyer. You are required to identify yourself (name, address and birthdate) to the police. Beyond that you should not volunteer any information or respond to any questions until you have sought and received legal advice.

As a teacher, you have access to necessary legal advice on matters relating to your work. To get it, contact the Association as soon as possible. In the meantime, avoid discussing the situation with anyone else (other than your legal spouse). Discussing it with other persons may put them in the position of being called to testify against you.

Do not panic. While this may be a terrible experience, staying calm, listening to advice and taking the situation one step at a time will at least avoid making it worse.

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