How to Defend Sexual Interference Charges

Sexual interference is a crime that is defined by the Criminal Code as the act of touching a victim’s body, either directly or indirectly, or using an object on any part of the victim’s body for sexual purposes. It is a serious offence that is usually only applicable to individuals who are under 16 years of age.

Sexual interference is a specific sexual offence that occurs when there is a sexual purpose, as opposed to sexual assault against a minor. In this case, a minor is defined as someone under the age of 16. The touching must be of a sexual nature or for a sexual purpose/intent in order to be considered a sexual offence.

The distinctions between sexual assault and sexual interference affect how the prosecutor might present the case and specify the defences that are appropriate in each situation.

What is Sexual Interference?

The sexual offence of sexual interference involves an individual who touches someone under the legal age of consent for sex for a sexual purpose or intent. The reasoning behind that is that even if someone agrees to touching them, they cannot consent at that age, so no touching of a sexual nature is permissible in any case.

What are the penalties for sexual interference?

The Criminal Code’s Sections 271-273 specify sexual assault punishments, which differ depending on the nature and seriousness of the offence. When a minor is involved in a sexual assault case, as is the case in sexual interference cases, the Court must impose minimum prison sentences of six months in summarily prosecuted cases or a year if the Crown is prosecuting by indictment.

On the other hand, the maximum sentence for sexual interference is two years for a summary conviction and up to 14 years for an indictment. The maximum punishment for sexual assault is exacerbated by the use of a firearm, injured someone, or put the minor’s life in jeopardy is life in prison.

If found guilty of sexual interference, a minimum sentence of 90 days may be imposed in summary judgment and for a maximum of one year if the Crown proceeds by indictment. If sexual interference is found guilty on a summary basis, the maximum sentence is two years; if an indictment is filed by the Crown, the maximum sentence is fourteen years.

The distinctions between sexual assault and sexual interference dictate how the prosecution will present the case and specify the defences that are appropriate in each situation.

A multifaceted strategy that concentrates on numerous important areas is necessary to defend against accusations of sexual interference.

Credibility

First and foremost, it is imperative to successfully use the rules of evidence to cast doubt on the defendant’s dependability and credibility. Challenging the credibility or reliability of the defendant was a more effective strategy prior to the MeToo movement. Now, this approach is less likely to be effective as the defence requires a more robust defence strategy that often involves building a “Defence Theory”, as opposed to a serial review of the evidence or simply raising doubt in the prosecutor’s case.

A “Defence Theory”

Creating a compelling theory of defence is important, but it should not only entail a series of reviews or casting doubt on the complainant’s motives—especially in the post-MeToo era, when doing so is not an effective strategy and could even be detrimental or considered unethical.

Defence tactics that were employed prior to the MeToo movement may have included a character attack on the complainant’s truthfulness or credibility. These strategies, however, are out of date and might undermine the defense’s position. Instead, it might be an effective strategy for the defence counsel to develop a strong defence theory. This includes laying out reasons as to why the complainant might have hidden animosity towards the accused and have a motive to fabricate the details of the sexual interference.

A “defence theory” might be defined as a strategy for rationalizing an argument advanced by the defence in a sexual interference case, in a manner that refutes the accusations and supporting evidence provided by the prosecution. It might be viewed akin to painting a narrative or setting a background as to why the prosecutor’s case does not meet the standard of proof beyond a reasonable doubt. It might involve things like explaining why the complainant would have a motive to fabricate the allegations and provides a fuller picture of the situation at hand.

Charter Challenges

Their defence also might involve constitutional challenges and procedural defences like those outlined in Section 11(b) for unjustified delay or contesting the legality of search warrants. Some other Charter challenges might involve contesting the consent of the accused to a DNA sample that was used as evidence, arguing that the case should be thrown out because it was not tried in a timely manner, and more.

Consent is Not a Valid Defence in Sexual Interference Cases

It is highly important to note that consent or a mistaken belief of consent are inadmissible defences when contesting accusations of sexual interference. Procedural defences therefore become highly important in defending the accused’s rights to the presumption of innocence. Some defences might include pointing out reasons for fabrication, noting inconsistencies in the complainant’s stories, contesting the inquiry process, and demonstrating the fabrication through painstaking defence investigation effort. Outside of the courtroom, public relations initiatives can also influence the narrative.

Mistake of Age

One defence is mistake of age. The defendant might make the argument that they had a legitimate belief the complaint was of legal age. This defence depends on proving the belief was sincere and rational in light of the situation.

The Intent was not Sexual

The defendant might argue that the touching was unintentional or had a lack of sexual intent. They might say that the interaction in question was not sexual in nature.

The defence may contend that the complainant made up the accusations and that they are untrue. To set up a defence theory, they might point out reasons as to why the complainant might want to fabricate allegations against the defendant; for example, because of hidden animosity and a desire to ruin the defendant’s reputation.

There are situations in which a Gardiner hearing might be necessary. Here, the defendant enters a guilty plea to some counts but not all of them, setting up a trial for the unproven charges. This might be used as a thoughtful strategy to lessen the overall effect of the defendant’s allegations.

Ultimately, fighting against accusations of sexual interference necessitates a calculated combination of refuting the prosecution’s evidence, making use of procedural defences, and developing a cogent and convincing defence theory that corresponds with today’s legal and social norms.