What are the best defences to sexual interference and sexual touching?

By Last Updated: July 26, 2022

What are the best defences to sexual interference and sexual touchingThe best defence to a sexual interference or a sexual touching charge will depend heavily on the specifics of your case. However, one common defence would be to argue that the touching was not intentional or that it was not done for a sexual purpose. One way to argue that you did not have the intent necessary for this offence would be to argue that you were intoxicated. Unlike some offences, sexual interference and sexual touching are specific intent offences which means that some amount of deliberation, foresight, and calculation motivated the criminal action. As such, if you are too intoxicated to properly deliberate your actions, you do not have the mental intent necessary to be convicted of these offences.

Another common defence is that you mistakenly believed that the complainant was old enough to consent. If you legitimately believed that the complainant had consented and that they were old enough to consent, you do not have the mental intent required to be found guilty of this offence. However, in order to raise mistaken belief in consent you will have to prove that you took all reasonable steps in the circumstance to ascertain the age of the complainant, and will have to prove that the complainant voluntarily consented. In order to assert that you took all reasonable steps to ascertain the age of complainant, you will have to show that you did something more than passively make observations that led you to believe that the complainant was of age. What constitutes ‘reasonable steps’ will be determined with reference to the perspective of the reasonable observer in the circumstance, not what you personally believed to be reasonable at the time of the offence.

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Michael Oykhman

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Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

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