How to Defend Sexual Interference Charges?

Sexual interference and invitation to sexual touching, like all sexual offences involving children, are considered very serious offences by the Courts in Ontario and all over Canada. Those who are convicted are prosecuted aggressively and those who are convicted are regularly sentenced to periods of incarceration and forced to register as sex offenders. These offences can be difficult to prosecute and difficult to defend. This is due to the general lack of evidence in cases of this sort. In many cases involving sexual offences, the only evidence in the possession of the Crown is statements made by the complainant and the accused. In some cases, there are third party statements. Beyond this however, there is often very little real physical evidence. This is due to the fact that these types of offences generally occur within the privacy of someone’s home and are not always reported immediately.

Often, those who are accused of sexual interference or invitation to sexual touching have been accused by a family member, close family friend or someone else known to the accused. Individuals accused of molesting family members are commonly charged with these offences.

In many cases, accusations are historical, sometimes dating back years or even decades. It is not uncommon for victims of sexual abuse to take years to feel comfortable speaking about their experience. As a result, many sexual abuse survivors do not go to the police for significant periods of time. In Canada, there is no statute of limitations on sexual offences. This means that an individual may be prosecuted for sexual interference or invitation to sexual touching even decades after the alleged incident occurred.

Sexual interference is outlined in section 151 of the Criminal Code. The Code states that it is a criminal offence for an adult to touch, for a sexual purpose, either directly or indirectly, with a part of their body or an object, any part of the body of a person under the age of sixteen. Essentially, section 151 makes it a crime for an adult to touch a person under the age of sixteen for a sexual purpose.

Those under the age of sixteen are legally incapable of consenting to sexual activity with an adult. This means that if an adult engages in sexual activity with a person under the age of consent, even if the minor is agreeable to the sexual activity, the adult is guilty of sexual interference. To be guilty of the offence the accused must have had knowledge that the complainant was a minor at the time the sexual activity occurred. The accused must not have been reckless or willfully blind regarding the complainant’s true age and must have taken reasonable steps to ascertain the true age of the complainant prior to engaging in sexual activity.

Invitation to sexual touching is outlined in section 152 of the Criminal Code. The Code states that it is a criminal offence for an adult to, for a sexual purpose, incite, counsel or invite a person under the age of sixteen to touch, directly or indirectly, with an object or with a part of the body, the body of any person, including the body of the person who so incites, counsels or invites and the body of the person under the age of sixteen. This means that it is a criminal offence for an adult to invite a person under the age of sixteen to engage in sexual activity of any kind.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

Click here for more information on defending sexual assault allegations including common defences and the law of consent in Canada or here if you have been falsely accused.

CP24: Civil Sexual Assault Lawsuit at St. Michael’s in Toronto.

Global News Radio: Two Lawsuits against Harvey Weinstein are being settled.

Global News: Historical Sexual Assault Charges and Bill Cosby.

Global News Radio: Justin Bieber facing allegations of Sexual Assault.

CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto.

CityNews: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution.

Legal Information

Frequently Asked Questions

What are the Best Defences to Sexual Interference?
-Honest but Mistaken Belief
-Lack of Intent
Charter Challenges
-False Allegations
What are the Best Defences to Invitation to Sexual Touching?

Sexual Assault Resources

Assault
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What are the Best Defences to Sexual Interference?

Sexual interference offences can be both difficult to prosecute and difficult to defend. In many cases, there is little evidence other than the statements of the complainant and in some cases the statements of third-party witnesses. As a result, these offences often result in he-said-she-said arguments.

In addition to the general lack of real evidence, it is not uncommon for victims of sexual offences to take years and sometimes even decades to report their allegations to authorities. This in many cases results in charges being laid for historical offences. In Canada, there is no statute of limitations on sexual offences, allowing law enforcement to lay sexual interference charges even decades after the alleged incident. This often results in the added complication of memory breakdown.

When developing a strategy to defend a sexual interference allegation it is important to have a full understanding of the allegations being made and the evidence in the possession of the Crown. In some cases, an accused may argue honest but mistaken belief and in other cases an accused may argue that they lacked the necessary intent to be guilty of the offence. Other common ways to defend sexual interference charges include launching Charter challenges where possible and in the case of wrongful allegations, arguing that the complainant has fabricated their story.

Honest but Mistaken Belief

Where an accused had an honest but mistaken belief that the complainant was over the age of consent, they may beat their charges. To prove their case, the Crown must prove that the accused had knowledge of the complainant’s true age. In cases where the complainant took proactive steps to conceal their true age and appear older, the accused may put forth the defence of honest but mistaken belief. This defence will only be successful where the accused took reasonable steps to ascertain the true age of the complainant prior to engaging in any sexual activity. Further, the accused must not have been reckless or willfully blind as to the true age of the complainant. This means that if there were signs indicating that the complainant was underage and the defendant ignored them, the defendant will likely be found guilty.

Lack of Intent

In other instances, an accused person may argue that they lacked the necessary intent to be guilty of sexual interference. To gain a conviction for sexual interference, the Crown must prove that the accused touched the complainant for a sexual purpose. If there was no sexual purpose for the physical touch, the accused may be found not guilty. For example, a parent who touches their child’s genitals while bathing them is making physical contact with the child’s sexual organs, but not for a sexual purpose. In this instance, the parent has a legitimate, non-sexual purpose for the physical contact and is thus not guilty of an offence.

Charter Challenges

In other cases, where the evidence against the accused is more substantial, a defendant’s best chance of beating the charges may be to launch various Charter challenges. For example, if police collected incriminating evidence against the accused in violation of his or her s. 8 Charter right against unreasonable search and seizure, the evidence collected may be inadmissible. Inadmissible evidence may not be used against the accused. Where evidence is collected through a clear breach in an accused’s section 8 Charter right, the evidence may be deemed inadmissible. In some cases, this can be fatal to the Crown’s case.

False Allegations

As with most criminal offences, there are individuals who make false allegations of sexual interference for various reasons. Where an accused has been charged with a crime they did not commit, there is often little evidence other than the statement of the complainant. Sometimes, where the complainant is not credible, the Crown will not have enough evidence to prove beyond a reasonable doubt that the accused is guilty. In these cases, the defendant may simply argue that the Crown has not met its burden. In other cases, the accused may wish to testify and tell their side of the story. Due to the high burden of proof in Canadian criminal trials, it is unlikely that an accused will be convicted of sexual interference if the allegations have been fabricated.

Defending sexual interference allegations can be complicated, regardless of which defence is being put forth. If you have been charged with sexual interference it is important to protect your rights. Experienced legal counsel can assist you in developing the correct strategy for your case to ensure the best possible outcome.

What are the Best Defences to Invitation to Sexual Touching?

Invitation to sexual touching is a serious offence and those who are charged are prosecuted aggressively and sentenced harshly upon conviction. Invitation to sexual touching charges can be difficult to defend as well as difficult to prosecute, due to the lack of evidence often present in such cases. Generally, sexual offences against children are perpetrated behind closed doors where there are often no third-party witnesses. Further, the majority of accused individuals have personal relationships with the complainant. In many cases, the accused is a family member of the complainant or friend of the family. This means that in many cases the only evidence is the statements of the complainant.

In some cases, the allegations against the accused have been fabricated. Where there is little to no evidence it may be possible to resolve the matter and have the charges withdrawn prior to trial. However, in many cases the Crown will not agree to this due to the serious nature of invitation to sexual touching allegations. Where the matter goes to trial, an accused may testify and explain their version of events.

Regardless of the defence being advanced, if you have been charged with invitation to sexual touching it is important to have experienced legal counsel on your side. Those who are convicted of such offences are routinely sentenced to lengthy periods of incarceration and forced to register as sex offenders. Experienced legal counsel can help protect your rights. Donich Law has experience defending an array of individuals charged with invitation to sexual touching, among other sexual offences, and regularly obtain favourable results for our clients. We combine risk management and litigation to ensure our clients receive the best possible defence.

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