Definition of Sexual Interference
Sexual interference is an offence under the Criminal Code (s.151). It occurs when someone "directly or indirectly" touches another person under 16.
Elements of a Sexual Interference Charge
To prove this charge, the Crown must show that three elements were present:
- The person being touched was under 16 years of age.
- The touching was done with a part of the accused's body or an object.
- The touching was performed for a sexual purpose.
All three elements must be present to prove a sexual interference charge.
Definition of Invitation to Sexual Touching
Invitation to sexual touching is an offence under s. 152 of the Criminal Code. It occurs when a person "invites, counsels, or incites" someone under 16 to touch them (directly or indirectly) with their body or an object for sexual purposes. Sexual touching also occurs if someone "invites, counsels, or incites" two people under 16 to touch each other for sexual purposes.
Penalties for Sexual Interference and Invitation to Sexual Touching
The Crown can treat these charges as either summary or indictable offences. The charges are always indictable offences (the more serious type) unless the Crown proceeds on a summary offence basis. On conviction, the mandatory minimum sentences are:
- Summary conviction: Minimum of 90 days in jail, up to two years less a day in prison.
- Indictable conviction: Minimum of one year in jail up to 14 years in prison.
Other Penalties for Sexual Interference and Invitation to Sexual Touching
The court can order these additional penalties, along with any jail sentences for sexual interference and invitation to sexual touching:
- An order requiring you to provide a DNA sample to the national DNA databank
- An order prohibiting you from owning weapons
- An order prohibiting you from frequenting specific types of places where people under age 16 congregate (swimming pools, schoolyards, public parks, etc.)
- An order requiring you to register your personal information with the National Sex Offender Registry per the provisions of the National Sex Offender Information Registry Act (SOIRA)
Under a SOIRA order, you must report to the Sex Offender Registry when you:
- Move from one address to another
- Change jobs (paid or volunteer positions)
- Travel internationally (more than seven days)
A sexual interference conviction means the court will impose a minimum 10-year SOIRA order. After the SOIRA order is lifted, your personal information remains in the Sex Offender Registry database permanently.
Defences to Sexual Interference and Sexual Touching Charges
Each case is unique, and your criminal defence lawyer will discuss the best way to defend you against the charges you face. Two possible defences include the following.
Touching Not Intentional/Not Done for a Sexual Purpose
Generally, a common way to defend a sexual interference or sexual touching charge is to argue that the touching was not intentional or done for a sexual purpose. Your lawyer could argue that you could not have the intent required under the law to be guilty if you were intoxicated.
Both sexual interference and sexual touching require an accused person to possess a specific amount of foresight, planning, and calculation to commit the criminal act. If you were too intoxicated to appreciate the nature of your actions at the time of the offence, you could not form the mental intent required to be convicted of these offences.
Mistaken Belief in Consent
Another way to defend this type of charge is to argue that you legitimately believed the complainant was old enough to consent. In this instance, the accused person doesn't have the mental intent necessary to be found guilty.
To successfully raise this defence, the accused will have to prove they took all reasonable steps to find out the complainant's age and that the complainant consented. These could include asking the complainant their age and requesting to see their ID. The accused would be expected to do more than assume the complainant was over 16 by their appearance or mannerisms.
Why You Need an Experienced Criminal Defence Lawyer
If you have been charged with sexual interference or invitation to sexual touching, you need the services of a skilled criminal defence lawyer. First, it's your right to seek legal counsel and get their advice. Even if the police appear friendly, they are not on your side, and their job is to gather evidence that can be used against you.
Your best bet is to say nothing until you have had an opportunity to consult with a criminal defence lawyer. You may inadvertently say something that may hurt your case. Your criminal defence lawyer will review the facts of your case and your version of events and advise you about the best way to proceed.
The experienced and knowledgeable sexual assault defence lawyers at Kruse Law will work diligently to ensure your case has the best possible defence. Schedule a free meeting and quote, or call us toll-free at 1-800-699-0806 to speak with one of our professionals today.