Invitation to Sexual Touching

Invitation to Sexual Touching

The offence of invitation to sexual touching is outlined in section 152 of the Criminal Code.

An individual commits the offence of invitation to sexual touching when they ask or encourage a person under the age of 16 to sexually touch themselves or any other person. The sexual touch may be direct or indirect and may be with a part of the body or with an object.

Examples

Person A is an adult and person B is a child. Person A asks person B to touch his penis.

Person A is an adult and person B is a 15 year old teenager. Person A tells person B to touch themselves in a sexual manner.

Person A is an adult and person B is a child. Person A encourages person B to engage in sexual activity with a sex toy.

Cases

R. v A.S., [2021] ONSC 8549

In R. v A.S., the offender was charged with invitation to sexual touching after a family member reported historical sexual abuse to law enforcement. The offender was found to have, on one occasion, pulled his penis out and invited the young girl to touch it.

R. v. T.J., [2021] ONCA 392

In R. v. T.J., the offender was charged with invitation to sexual touching after counselling his child’s young friend to touch his penis during a sleepover hosted at his home.

Offence Specific Defences

Honest but Mistaken Belief

An individual who has been charged with invitation to sexual touching may use the defence of honest but mistaken belief if they genuinely believed the young person was an adult. The accused must demonstrate that they took reasonable steps to ascertain the age of the young person prior to engaging in sexual activity. An accused who was reckless or willfully blind as to whether the young person was old enough to consent to engage in sexual activity cannot use this defence.

Invitation Non-Sexual

To gain a conviction for invitation to sexual touching, the Crown must prove that the accused encouraged the young person to engage in sexual touching. If the touching encouraged by the accused was not sexual in nature, the accused cannot be convicted.

For example, an adult who encouraged a child to hold their hand while crossing the street for safety purposes is not guilty of sexual interference because the physical contact they encouraged with the child is non-sexual.

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