You may be charged with sexual interference and confused about what the difference is from sexual assault. Sexual interference is a type of sexual assault with a specific purpose. It occurs when sexual assault is committed against a victim under the age of 16 years for a sexual purpose. The age of 16 is an important age as it signifies the age of consent in Ontario.
Under section 151 of the Criminal Code, sexual interference is defined. Sexual interference occurs when someone touches, with a part of the body or an object, any part of another person’s body under the age of 16, either directly or indirectly, with a sexual purpose. A person under the age of 16 is unable to consent to Ontario.
Invitation to sexual touching is covered by section 152 of the Criminal Code. The charge is defined as inviting, with part of the body or with an object, anyone under the age of 16 to touch the body of another person, directly or indirectly, with a sexual purpose.
To both offences, both consent and mistake of age are not defences that are applicable because minors are not capable of consenting.
There are several things the Crown must prove for a sexual interference conviction. This includes proving the following:
To do this, the Crown may have the witness testify. Testimonies provided by witnesses in sexual interference cases have special rules attached to them because of the age of the victim. The Crown can have the witness testify from outside the courtroom via video either live or pre-recorded. The victim can also have a support person with them throughout the trial. The Crown can prohibit the accused from speaking directly to the victim.
The biggest difference between a sexual assault and sexual interference charge is touching. A sexual assault charge is touching of a sexual nature. This means it does not need to have the aim of any sexual gratification. Whereas for a sexual interference charge the touching is for a sexual purpose. In other words, the touching is aimed toward the sexual gratification of the accused. If a sexual assault is committed against a victim under the age of 16, the Crown may lay a charge of sexual assault against a minor rather than sexual interference if it is not done for a sexual purpose.
A charge of sexual interference can result in serious penalties. Sexual interference is a hybrid offence. If the case proceeds as a summary conviction, the minimum charge is 90 days. However, if the Crown proceeds by indictment, the minimum penalty is 1 year. Importantly, the maximum sentence is up to 14 years in prison.
A sexual interference charge can also result in your name being listed under the sex offenders list. The Sex Offender Information Registration Act states that if someone is found guilty of a sexual interference charge they will be listed under the National Sex Offender Registry. In addition, your name will be registered under the provincial registry. Registration under these registries includes: name, address, photo, and a description of the crime.
In addition to jail time, the court may also order additional penalties prohibiting you from certain activities or areas. Courts decide whether the prohibition is short-term or lifelong. Prohibitions include:
Consent is not a common defence for sexual interference charges. This is because someone under the age of 16 cannot consent. Therefore, arguing the victim consented is not available. There is one circumstance where the argument can be made. If reasonable steps were taken by the defendant to ascertain the age of the complainant, then an argument can be made. If the defendant asked for proof of ID or clearly asked their age, both could be used as evidence towards a consent defence.
In situations where the complainant is 12 or 13 years old, consent is only available to other minors in very restricted situations. The accused must be: (a) less than two years older than the victim, (b) not be in a position of authority; for example, a camp counsellor, (c) not be in a dependency relationship, and (d) cannot be in any sort of exploitative relationship with the defendant. All of these criteria must be met for a consent defence to apply. The criteria remain the same for complainants 14 to 15 years old, but the accused must be less than five years older than the complainant in those cases.
A common statement is “I genuinely thought they were of age.” For the defence of mistaken belief of age to apply, there are several factors that can support the defence. The accused must prove to the court that they took all the reasonable steps to learn what age the complainant was. What constitutes reasonable steps is case-dependent and there is no clear-cut answer. However, courts tend to look at the following pieces of evidence:
Importantly, mistaken belief in age cannot just be a subjective belief you had. It must be a belief a reasonable observer in those circumstances would also come to.
Unintentional touching is a common defence in sexual interference cases. If, for example, the accused accidentally touched the complainant at a crowded concert, it would not have been for a sexual purpose. If the touching was not done with any intention and had no sexual purpose, the court will likely not find the accused guilty of sexual interference.
A sexual interference charge can alter your life and put you at risk of a public permanent record as a sex offender. A successful criminal defence lawyer can help you save your reputation and get the best possible outcome. At Pyzer Criminal Lawyers, we have great expertise in defending sexual interference charges. If you are looking for an experienced lawyer and a successful outcome, contact us today at (416) 658-1818.