COMMON DEFENCES TO SEXUAL OFFENCE CHARGES
SEXUAL ASSAULT DEFENCES
Under s. 271 of the Criminal Code, the Crown can charge you with sexual assault if you have touched another person in a sexual way without their consent. Common defences to this charge often include:
- actual consent, where the complainant (the person claiming sexual assault against you) consented at the time of the sexual assault, but has, for some reason, decided afterward to go to the police. Often, this is where the complainant is not credible or is lying.
- mistaken belief in consent, where you believed that you had consent to have sexual contact with the complainant. Often, the complainant is not reliable, meaning that the complainant for some reason can't be relied on by the court.
- no sexual contact, where the complainant has made up the allegations or is mistaken about who he or she had sexual contact with.
SEXUAL INTERFERENCE, EXPLOITATION OR SEXUAL TOUCHING
Under s. 151 or 153 of the Criminal Code, if you are an adult who sexually touches, invites a child to touch you, or has any sexualized contact with a child, you will be charged with Sexual Interference or Sexual Touching. Common defences include:
- no sexual touching: where the conduct accused of is not sexual or simply didn't happen.
- no intent: where there was no intent to have sexual contact.
- reasonable attempt to find out age: where the complainant represented themselves to be over 16 or there was no way of knowing that the sexual contact was with someone underage.
- you are within 3 years of the complainant's age or are under 18.
Under s. 163.1, you cannot access, distribute, make, possess or access child pornography.
Child Pornography is defined as any electronic, film, video, audio, written or visual representation of a child under the age of 18's sexual organs or of a child engaged in sexual activity or any material that counsels or advocates sexual activities with children.
Defences do not include that you believed the child was over 18 years old unless you have tried to ensure they are.
Defences do include a legitimate purpose “related to the administration of justice or to science, medicine, education or art and do not pose an undue risk of harm to person under 18”. This may mean that you are law enforcement, a person studying the internet for a Ph.D. program or otherwise employed or in an educational institution.
Sexual offence charges carry serious consequences
If you are convicted of the serious charge of sexual interference, exploitation or touching, the results can be life-changing. There is a mandatory minimum one-year jail sentence on conviction. Sentences for sexual interference, touching or exploitation can range from one year to decades in jail. A child pornography charge carries with it minimum one-year jail terms to up to fourteen years in jail.
You must take these charges seriously and retain an experienced lawyer.
Helps Law is available in emergency situations 24 hours a day.
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