sexual-assault sexual-offences defense
In an opposite-sex sexual assault case, is &quot;I&#39;m homosexual&quot; a valid defense?
<p>Let's say Alice is sexually assaulted by a man, and circumstantial evidence pinpoints Bob as the attacker. Can Bob claim that, because he is homosexual/asexual, he does not find Alice sexually desirable and so cannot be the attacker?</p>
<p>I'm unable to find anything on this via Google. The closest is the <a href="https://en.wikipedia.org/wiki/Gay_panic_defense" rel="nofollow noreferrer">gay panic defense</a> which is still not what this question is about.</p>

<p>This is not a true defense. It would only go to the credibility of the defendant's account claiming that he was not the perpetrator.</p>
<p>Nothing prevents someone who is homosexual or asexual from sexually assaulting someone of the opposite sex within the meaning of the law. Sexual assault is often motivated by reasons other than sexual attraction in any case. Also, some people who publicly hold themselves out as being homosexual are actually bisexual.</p>
<p>It is probably relevant evidence, but ultimately, it is up to the jury to decide who to believe and what happened based upon all of the facts and circumstances.</p>

<p>Bob's argument that you describe is simply an evidentiary argument about identity. If identity and the elements of sexual assault are proved beyond a reasonable doubt, Bob's argument is no defence.</p>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>In Canada, one of the elements of sexual assault is that the touching be of a sexual nature. This is an <em>objective</em> test (see <em>R. v. Chase</em>, <a href="https://canlii.ca/t/1ftlr#par11" rel="nofollow noreferrer">[1987] 2 SCR 293, at para 11</a>:</p>
<blockquote>
<p>The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: &quot;Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer.&quot;</p>
</blockquote>
<p>Touching with the motivation of punishment or humiliation can meet this test, regardless of the lack of sexual motivation of the accused. See e.g. <em>R. v. S. (V. C. A.)</em>, <a href="https://www.canlii.org/en/mb/mbca/doc/2001/2001mbca85/2001mbca85.html" rel="nofollow noreferrer">2001 MBCA 85</a>.</p>
<p>Depending on the circumstances, this could even render Bob's argument wholly irrelevant.</p>
