Frequently Asked Questions
What is Indecent Exposure?
Indecent exposure is a criminal offence similar to indecent act. It is contained under s. 173(2) of the Code. That section states, “Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years.” It is important to note that the person committing indecent exposure and the young victim do not have to be in the same physical space for this offence to occur. It is possible for the offence to be committed electronically if both parties are on a video call.
As another example consider, Person A is an adult who meets a 13-year-old child in a public park in Toronto. If A approaches B, pulls down their pants and begins to masturbate, A will have committed indecent exposure. This is because of the clear sexual purpose of the masturbation coupled with the exposure of A’s genitals.
What is the Legal Definition of an Indecent Act?
Committing an indecent act is an offence under s. 173(1) of the Criminal Code. The section states, “Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person…” This offence captures a wide variety of behaviour. Essentially, anyone is guilty of indecent acts if they do something in public in the view of someone else that could reasonably offend or insult someone. The indecent act could include something like urinating in public or having sex or masturbating in public.
For example, consider a couple in a car parked at a store in Toronto. The couple decide to start engaging in sexual activity. The windows to their car are un-tinted and several pedestrians walk by who notice the couple’s behaviour. Because the couple has chosen to engage in sexual activity in public, while in the view of others and it is reasonable to conclude that someone maybe offended by this, the couple will have committed an indecent act.
What is the Difference Between Indecent Act and Indecent Exposure?
There are two main differences between indecent acts and indecent exposure. The first difference is the age of the complainants. In an indecent act case, the complainant can be any age. In an indecent exposure case however, the complainant must be under the age of 16.
The second difference is the requirement of sexual purpose. That element is not present in the indecent act offence. There are some indecent acts that do not involve a sexual purpose, depending on the facts of a case. A common example of this is public urination. With indecent exposure cases on the other hand, the exposure must have been for a sexual purpose.
What are the Defences to Indecent Act and Indecent Exposure?
There are two main defences to indecent act that an accused may use to avoid criminal liability if charged. The first defence involves arguing that the indecent act was not committed intentionally. The offence requires that an accused willfully commits an indecent act. If a person can satisfy a court that they accidentally exposed their genitals or committed some other indecent act they may be found not guilty.
The second defence is a reasonable expectation of privacy. Indecent acts are committed in the public eye. If an accused can demonstrate that they were somewhere they thought was private, before exposing themselves and being seen, they may not be found guilty. A common example of this would be if someone walked in on a person using a changing room in a clothing store.
There are four common defences to indecent exposure. Firstly, an accused may argue that they did not expose their genitals. To gain a conviction the Crown must prove that the accused exposed their genitals. If they can present the court with evidence to show that their genitals were in fact not exposed, they cannot be convicted of indecent exposure.
Secondly, an accused can argue that they did not intend to expose themselves. Again, the Crown must prove that the accused exposed themselves intentionally. If this is not the case, the accused cannot be convicted.
The third defence is a lack of sexual purpose. This may be commonly seen in cases where nudity around children is intentional but innocent. For example, if a child barges into the bathroom to ask their parent a question just as the parent has stepped out of the shower. There is no sexual purpose here, so no offence occurred.
Finally, an accused charged with indecent exposure may argue that they had a mistaken belief in the age of the complainant. To gain a conviction the Crown must prove that the accused was aware that the complainant was 16 or younger. If the accused genuinely believed the complainant was over 16, they may not be guilty of an offence. To successfully advance this defence the accused must show that they took reasonable steps to ascertain the true age of the complainant, and that a reasonable person in their shoes would have mistaken the age as well.
What Ancillary Orders are Associated with These Offences?
Ancillary orders are additional measures a court can impose during sentencing aside from the main punishment. There are a number that can apply to both indecent act and indecent exposure cases. The most common applicable to both is a Sex Offender Information Registration Act, or SOIRA order. Under this order an offender would have to provide certain identifying information to a government registry that keeps a database of sex offenders for the use of law enforcement only. It is important to note that the order is mandatory in indecent exposure cases because that offence is listed as a primary designated offence under s. 490.011(1) of the Code. Whereas indecent act is a secondary designated offence which means a Crown must ask a court to impose the order and demonstrate that it is necessary in each case.
Another order common to both offences is offenders may be ordered not to visit the place where the offence occurred or contact any victims as a term of an ordered period of probation.
Due to of indecent exposure’s status as a primary designated offence, offenders must comply with other ancillary orders on a mandatory basis. Offenders must comply with a DNA order that requires them to provide a bodily sample to be included in the national database. Offenders will also be issued a mandatory 10-year weapon ban. Finally, given that this offence victimizes children, a court will issue an order restricting the offender’s access to children under the authority of s. 161 of the Code. This order prevents an offender from contacting anyone under the age of 16, holding a volunteer or employment position where they are in a position of trust or authority over a minor, and they may not attend places where someone could reasonably expect to find a child. This includes parks, schools, and community centres. This order may last up to the lifetime of the offender. These ancillary orders may also be imposed in indecent act cases, though they are not mandatory.