The Defence of Non-Sexual Touching in Sexual Assault cases

If you have been charged with sexual assault or sexual interference, one of the potential defences is that the activity in question was not sexual in nature.  The defence operates slightly differently depending on which charge you are facing.  15. Section 153(1)(a) [the offence of sexual interference] specifically requires that the touching be “for a sexual purpose”. That means that is the intention of the accused person that matters.  If that person says the touching was not done for a sexual purpose and is either believed or the testimony raises a reasonable doubt then an acquittal must be entered.  Of course, the person will not necessarily be taken at their word.  Such evidence is far more believable in the context of a brief touching of a leg, for example, as opposed to lengthy massaging of breast.

However, the same requirement does not exist for the charge of sexual assault.  Under s. 271, the test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?” The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual.

A criminal defence lawyer will be able to assess the circumstances of your case to determine the defence is viable or not.


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