What are defences to sexual interference?
Like any other criminal offence, defences to a charge of sexual interference are based heavily on the circumstances of your individual case. Sexual interference is the intentional touching of a person under the age of 16 for a sexual purpose. In order to be convicted, the prosecutor must prove each of the essential elements of the offence beyond a reasonable doubt.
Depending on the allegations, potential defenses to sexual interference are:
- The sexual act did not occur;
- The sexual act occurred but the complainant was not under the age of 16 at the time;
- The sexual act occurred but the complaint lied about his or her age causing the accused to have an honest but mistaken belief that the complainant was over the age of 16;
- Touching occurred to a person under the age of 16, but it was not for a sexual purpose;
The sexual act did not occur
Sexual offences have been described as the most under-reported and most over-reported of all criminal offences. This means that many victims of sexual offences never report the offence to police for a multitude of reasons. It is also over-reported in that complainants either make a false report or as is often the case with very young children, a complainant has come to believe the sexual act occurred when it in fact did not. Unless an accused has a solid alibi on the exact day of the alleged offence, it is very likely that the accused will have to testify in his or her own defence that the act was not committed.
The sexual act occurred but the complainant was not under the age of 16 at the time
In some circumstances, questions arise as to the actual date of the alleged sexual act. If the Crown Prosecutor cannot prove the complainant was under 16 at the time of the alleged offence, you cannot be convicted. In some circumstances, issues arise about the actual age of the complainant. In some countries, such as Ethiopia, a different calendar is used than that in Canada. This makes proving the actual legal birthday of the complainant very difficult and a skilled defence lawyer can raise a reasonable doubt as to the actual age of the complainant.
Mistaken belief in age
The defence of mistaken belief in age most often occurs in situations where the complainant lies about his or her age. In such situations, the court will look to see if the accused took all reasonable steps to ascertain the actual age of the complainant despite the deception.
Touching was not for a sexual purpose
It is a full defence to the charge if the accused can demonstrate that the touching was not for a sexual purpose. Examples of this are in situations of medical examinations or accidental or inadvertent touching.
The offence is sexual interference is one of specific intent, which means that intoxication is a defence. It is not simply a defence to say that the accused was intoxicated, but that as a result of the intoxication, the accused could not form the specific intent to touch the complainant for a sexual purpose.
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