When is sexual exposure a crime?

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When is sexual exposure a crime?

It is a crime under section 173(2) of the Criminal Code to expose your genital organs for a sexual purpose to a person who is under the age of 16 years. 

This means that you can be convicted of the crime of genital exposure if the crown prosecution can prove each of the following elements of the offence:

  1. You exposed your genital organs.
  2. The person you exposed your genital organs to was under the age of 16 years at the time.
  3. You exposed your organs to the person for a sexual purpose.

This raises the following questions:

  • What are genital organs?
  • What does “exposing” your genital organs mean?
  • How can the crown prosecutor prove the sexual purpose?
  • What if you did not know that the person you exposed your genitals to was under 16 at the time?

What are genital organs?

The term “genital organs” is not defined in the Criminal Code nor by Canada’s courts. However, caselaw sheds light on it by describing genital organs to mean “genitals”: below-the-waist reproductive organs that represent “primary sexual characteristics.” Other offences in the Criminal Code use the term “sexual organs,” which has a broader meaning and may include breasts, depending on the context. Breasts are not genital organs.

What does “exposing” your genital organs mean?

To expose your genital organs is to make them uncovered or visible willfully. For example, deliberately removing your clothing and showing your vulva is exposure; so is recklessly allowing your naked penis to be visible to others by relying only on a loose newspaper to cover it on a windy day. The crown prosecution does not have to prove that the complainant saw your genitals; proving that you exposed your genitals to the complainant is enough.

How can the crown prosecutor prove the sexual purpose?

The crown prosecutor can prove that the sexual exposure was for a sexual purpose using “circumstantial evidence.” A judge can infer that the exposure was for a sexual purpose based on all the evidence. For example, if you were charged with sexual exposure because of a time when you got out of the shower in front of a child and the child saw your penis, the judge may infer whether or not this exposure was for a sexual purpose based on the circumstances. A judge may infer that the exposure was not for a sexual purpose if you were showering in your own home and had no reason to expect the child to be standing outside of your shower, and you immediately covered up your penis when you noticed the child. 

What if I did not know that the person was under 16 years old?

Unless you “took all reasonable steps to ascertain the age of the complainant,” it does not matter that you did not know that they were under 16 years old. In other words, it is your responsibility to do everything you reasonably can to know how old the person is.

Is urinating in public indecent exposure?

It can be. Public peeing may or may not be indecent exposure, depending on the context. This is best illustrated with an example. Consider two hypothetical men charged with indecent exposure: Tom and Bill. Both urinated in public places and had their penis seen by someone under 16 years old. 

Tom was leaving a bar in downtown Calgary at about 3:00am after having drank heavily for most of the evening when he decided to urinate in an alley behind the bar. A fifteen-year-old came around the corner and saw Tom’s penis as Tom was urinating. Tom was acquitted of indecent exposure because the judge was not convinced that his exposure was for a sexual purpose.

Bill was in a residential community at 3:00pm when he parked his car near a school, walked up to the uncovered ground-level window of a first-grade classroom, pulled down his pants exposing his penis and testicles, and urinated. There were about 25 children in the classroom. Bill could see them when he exposed himself, and several of the children saw Bill’s penis. Bill was convicted of sexual exposure. The judge inferred that Bill exposed his penis to the children for a sexual purpose.

These are hypothetical examples based partially on real cases, and they may or may not reflect how a judge would actually decide in these situations. Every situation is different, and the ultimate outcome is up to the court. Also, it is important to keep in mind that, even though Tom in the hypothetical example above may not have committed the criminal offence of sexual exposure, he may be guilty of another criminal offence, such as causing a disturbance, or of a bylaw offence, such as public urination.