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What are sexual interference and invitation to sexual touching?

Region: Ontario Answer # 1846

Sexual interference and invitation to sexual touching (sections 151 and 152 of the Criminal Code, respectively) are offences that relate to sexual offences against any person under the age of consent which, usually is 16 years of age. In most cases, a person under the age of 16 cannot, in law, consent to sexual activity. Because consent is not a defence to sexual interference in many cases, honest but mistaken belief in consent is not a defence either.

If the alleged victim (often referred to as the complainant) is over 16 years of age but under 18, the accused may still be charged with sexual interference if, at the time of the assault, he or she was in a position of trust and authority with the alleged victim.

Sexual interference involves the touching of any part of the body of a young person for a sexual purpose. Invitation to sexual touching involves inviting, counselling or inciting a young person to touch the body of any person for a sexual purpose. To prove that the accused was guilty, the touching must be intentional and sexual. To show that touching was sexual, evidence such as the part of the body touched or any words or gestures accompanying the touching may be used.

“Consent” defence

It is not a defence to sexual interference that the accused simply believed that the complainant was 16 years of age or older. An accused person can only rely on the consent of the young person as a defence, if the accused can prove that he or she took all reasonable steps to ascertain the age of the complainant, such as asking the complainant how old they are, or checking their identification.

If the complainant is 12 or 13 years of age, and has consented to the activity, consent can only be a defence to the charge if the accused is:

  1. Less than two years older than the complainant, and
  2. Not in a position of trust or authority toward the complainant, and
  3. Not in a relationship of dependency, and
  4. Not in an exploitative relationship with the complainant.

 

A similar defence applies if the complainant is 14 or 15 years of age, if the accused is:

  1. Less than five years older than the complainant, and
  2. Not in a position of trust or authority toward the complainant, and
  3. Not in a relationship of dependency, and is not in an exploitative relationship with the complainant.

 

If the complainant is 14 or 15, and the accused is more than five years older than the complainant, the victim’s consent will count if the accused is:

  1. The common law partner or married partner of the complainant, and
  2. Not in a position of trust or a relationship of dependency over the complainant.

A relationship of trust and dependency can be a teacher-student relationship, a family relationship (like a parent, aunt or uncle, or grandparent), or any other situation where the complainant should have been able to trust and rely on the accused to protect them.

 

Punishment

Sexual interference and invitation to sexual touching are both hybrid offences.

The minimum sentence of imprisonment for both offences under the Criminal Code is as follows:

  • 90 days if the case proceeds by summary conviction (less serious),
  • 1 year if the case proceeds by indictment.

The maximum punishment for both offences is 14 years in prison.

Under the Sex Offender Information Registration Act (SOIRA), if you are found guilty, you will be registered on the federal sex offender registry. You will also be registered on the provincial registry where you live. Only the police have access to these registries. The registry will contain your name, your address, photographs of you, and a description of the crime you have been found guilty of. You must report any change of address or other relevant information (such as changing your last name) to keep the registry up-to-date. You can be fined or put in prison for not complying with these requirements.

A court may also make a prohibition order, which prevents you from being in contact with people under the age of 16. This order is discretionary, which means that it is up-to the judge if he or she will make such an order, and if so, for how long it will last. Prohibition orders can be for a short time or can last for the rest of your life.

Prohibition orders may include many restrictions, such as:

  • preventing you from going to public parks where people under the age of 16 would be expected to be, and/or
  • preventing you from having a job that involves working with young people, and/or
  • having your Internet use restricted or monitored.

If you do not comply with the order, you may be charged and found guilty of another criminal offence, which has a maximum penalty of imprisonment for eight years.

If you have a criminal record and want to erase it, call toll-free 1-877-219-1644 or learn more at Federal Pardon Waiver Services. It’s easier than you think.

If you have been charged with a crime, a criminal defence lawyer experienced in representing people charged with a sexual offence will understand how best to defend you. The penalties for sexual offences vary widely. If you have been charged with a criminal offence, and need to hire a criminal defence lawyer, contact one of our preferred criminal law experts:

The Criminal Law Team

Calvin Barry Criminal Lawyers


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