What is sexual interference and invitation to sexual touching?
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What is sexual interference and invitation to sexual touching?
Sexual interference and invitation to sexual touching are sexual crimes against children. Sexual interference is touching a person under the age of 16 for a sexual purpose. Invitation to sexual touching is inviting, for a sexual purpose, a person under the age of 16 to touch someone (including them or you).
Those definitions are somewhat oversimplified, and they leave a lot of questions.
What is sexual Interference?
According to section 151 of the Criminal Code, every person is guilty of sexual interference 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.”
For sexual interference, the crown prosecutor must prove each of the following elements of the offence beyond a reasonable doubt:
- You touched the complainant (with a part of the body or an object).
- You intended the touch.
- The complainant was under the age of 16 years when you touched them.
- The touch was for a sexual purpose.
- You intended for the touch to be for a sexual purpose.
This raises the question of what it means to touch someone “for a sexual purpose.” This question is also relevant to invitation to sexual touching.
What is Invitation to Sexual Touching?
According to section 152 of the Criminal Code, every person is guilty of invitation to sexual touching who, “for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years.”
For you to be found guilty of invitation to sexual touching, the crown must prove each of the following elements of the offence beyond a reasonable doubt:
- You invited the complainant to touch someone (with a part of the body or an object).
- The invitation was intentional.
- The invitation was for a sexual purpose.
- You intended for the invitation to be for a sexual purpose.
References to invitation or “invite” also include counselling and incitement which are explained below.
Even if there is no touching – for example, if you change your mind, or if the child runs away –you could still be found guilty of invitation to sexual touching if the elements of the offence are proven.
What does invite, counsel, and incite mean?
The Criminal Code provides no definition of any of these words, except to say that “counsel” includes procuring, soliciting, and inciting. These terms are not defined in the Criminal Code and are defined in slightly different ways in caselaw and legal dictionaries. Courts have found that:
- Actions, not just words, can be invitations. For example, the act of being naked and touching a child’s private areas is an invitation.
- To counsel is to advise or recommend; to procure, solicit, or incite.
- To incite is to urge, “stir up,” encourage, or provoke someone to do something. Incitement requires an action; passively allowing something to happen is not incitement.
- To solicit is to ask for something for the purpose of receiving it, using words and/or actions.
- To procure is to get, obtain, acquire, purchase, or buy, for oneself or for another.
Clearly a lot of conduct fits the definition of “invite, counsel, or incite.” Courts have consistently found that determining whether this element of the offence is made out requires a “purposive” approach: courts must look at the content and context of the act or words to learn or infer their purpose, which will determine whether there was an invitation, counselling, or incitement.
When is a touch or invitation for a sexual purpose?
In sexual interference and invitation to sexual touching cases, the crown must prove that the touching or invitation was “for a sexual purpose.” Touching for a sexual purpose is touching any part of the body, with a part of the body or an object, with the intent of “sexual interaction of any kind.” For example, the sexual arousal or release of yourself, the child, or someone else is a sexual purpose.
Touching as (part or all of) a sexual act – like intercourse, oral sex, or digital penetration – is always found to be done for a sexual purpose. Invitation to one of those acts will almost always be found to be for a sexual purpose. In one case, a man who emailed his ten-year-old niece to use her mother’s vibrator and her hand to masturbate was acquitted of invitation to sexual touching because the judge was left with a reasonable doubt that he did so for a sexual purpose, based on his explanation that he had found the vibrator and some condoms in her room, and was making a misguided attempt to teach his niece the lesson that she should not have those things. Cases like this are extremely rare.
Courts almost always find that an adult who touches a child in a private area, or invites a child to touch them in a child area, did so for a sexual purpose – especially when there is nudity – unless the adult can provide a reasonable alternative explanation for what happened, such as changing a diaper or addressing a medical concern. This seems contrary to the right to be presumed innocent until proven guilty; it is not stated in the Criminal Code, and I have not found it stated explicitly in any caselaw – but I think it is the reality of the situation: If you are accused of sexual interference or invitation to touching, and you did touch or invite the child to touch you, especially in a private or sexual area of the body, you will probably have to have a good reason for doing so to at least raise a reasonable doubt in the mind(s) of the judge or jurors. Otherwise, the judge or jury will almost always rely on the context – where on the body you touched them or invited them to touch you, for example – to find that you acted for a sexual purpose.