What’s the best defence against a charge of sexual interference?

Under Canadian law, sexual interference is a sexual assault where the victim is under 16 years of age. Sixteen is the age of consent.

Definition of Sexual Interference

Section 151 of the Criminal Code of Canada defines sexual interference as:
Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years.

Penalties for Sexual Interference

The penalties for a sexual interference conviction include:

• A minimum sentence of 90 days and a maximum of two years less a day imprisonment if the Crown elects to proceed summarily.
• A minimum sentence of 1 year and a maximum of 14 years imprisonment if the Crown elects by indictment.
• Being automatically placed on the sex offender registry.

Upon conviction, you will have a criminal record. Sex crimes carry a particular negative stigma which will affect all aspects of your life. It may be challenging, if not impossible, to get a job, and some landlords may not be willing to rent to you long after you have completed your sentence. The ability to travel outside of Canada will also be compromised.

Why Consent Is NOT a Defence in These Cases

In Canada, a person who is at least 16 years or older is legally capable of consenting to sexual activity. In a sexual assault case, the defence lawyer may consider whether consent is an appropriate defence as long as the alleged victim (i.e., the complainant) is at least 16 years old. For a sexual interference case, consent is not a viable defence, and it’s due to the complainant’s young age. Since the complainant in a sexual interference case is under the age of legal consent, they can’t consent to any sexual activity with one exception, which is described below.

For example, a person who is 15 years old might verbally “agree” to have sex with a 20-year-old adult, but the 15-year-old cannot legally consent to sexual activity with the adult. The 20-year-old could then be charged with sexual interference if they touched the young person for a sexual purpose. They could also be charged with sexual assault. However, if the complainant is 14 years of age or older but under the age of 16, it is a defence to the sexual activity in question if the accused is less than 5 years older than the complainant. For example, a 14-year-old girl is capable of legally consenting to have sex with an 18-year-old man.

Defences to Sexual Interference That May Apply

Depending on the specifics of your case, the following defences to sexual interference may apply:

• Mistaken belief that the complainant was 16 or older. This defence arises where the accused honestly believed the complainant was at least 16 years of age. For example, this type of defence may be successful if the complainant informed the accused that they were over 16, appeared to be over 16, and produced identification indicating they were at least 16 years of age. An honest but mistaken belief defence that the complainant was at least 16 years old will only be valid if the accused took all reasonable steps to confirm that the complainant was, in fact, 16 or over.
• There was less than a 5-year age difference. A defence lawyer might be able to establish that the complainant has the date(s) of the sexual activity mixed up or wrong and that same occurred when the parties were, in fact, less than 5 years apart in age.
• No sexual activity occurred. The complainant is mistaken in their allegations, or they are making false allegations against the accused. Defence counsel will consider if there is any reason why the complainant would be angry at or wish to cause trouble for the accused and is lying about the allegations. Did the complainant and the accused know each other before the incident? How well? What is the history of their prior dealings? Are there any apparent motives to lie?
• The touching was accidental. The two people involved may have bumped into each other or had some other type of casual and unintentional contact. There was no intent to engage in sexual activity.
• There was contact, but it was not sexual. The burden of proof is on the Crown to prove beyond a reasonable doubt that the accused committed the crime. The Crown must prove that the contact between the complainant and the accused was for a sexual purpose. Not all types of touching are for a sexual purpose, and the complainant may have misinterpreted the intent.

What Is the Best Defence Against a Sexual Interference Charge?

The best defence against a sexual interference charge is the defence that fits the facts of the case. A good defence lawyer will always strategize to determine how to properly defend any criminal charge based on carefully analyzing the fact of the Crown’s case, coupled with their client’s version of events.

Why You Need to Hire a Good Criminal Defence Lawyer

Since the penalties and consequences of any sexually-based offence are very severe and life-altering, you don’t want to plead guilty to the charges “to just get them over with.”  A good criminal defence lawyer will examine the facts of the case and the evidence gathered by the police to determine the best way to proceed.

A criminal defence lawyer will consider the complainant’s statement to see if it contains any discrepancies, improbabilities, and matters that do not accord with logic and common sense. Your lawyer will also ensure that your legal and constitutional rights were protected when you were arrested. Your lawyer will interview you at length on many occasions to review your version of the events. Are there any witnesses who can confirm your statements? The lawyer will consider the entire picture before formulating the best strategic defence possible based on the facts of your case.

Do not jeopardize your future if you face charges of sexual interference or any other sexually-based crime. The experienced and knowledgeable sexual assault defence lawyers at Kruse Law will work diligently to ensure your case has the best possible defence or obtain the best possible outcome for you if your case is not defendable. Schedule a free meeting and quote, or call us toll-free at 1-800-699-0806 to speak with one of our professionals today.