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Offenders and Accused Persons - Offences

Sexual Offences Against Children

Most of us have already read or heard something in the news about sexual crimes against children. Terms like “rape”, “sexual assault”, and “sexual interference” are often used, but they are rarely defined. What exactly do these expressions mean? Which ones are offences?

In this Infosheet, Éducaloi helps you make sense of all these complex legal notions by explaining the three main sexual offences against children and adolescents: sexual assault, sexual interference and incest.

What is meant by sexual assault against a child or teenager?

The law does not make any distinction based on the age of sexual assault victims. Any person can therefore be a victim, including children and adolescents.

Basically, sexual assault is a physical assault committed in a sexual context, without the victim’s consent. Since 1983, the offence of sexual assault has replaced the offence of rape. It is a bit different, as it includes acts other than just rape. The maximum period of imprisonment for sexual assault is 10 years. To find out more about this offence, see the Infosheet entitled Sexual assault  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/397/).

Can an adult have sexual contact with a child?

Generally, no. A person commits the offence of sexual interference as soon as he sexually touches the body part of a child who is less than 16 years of age, whether directly or indirectly, using a part of his body or an object.

The simple act of touching can be considered an offence, as long as it was sexually motivated. An adult does not have to have complete sexual intercourse with the child in order to commit an offence.

A person found guilty of the offence of sexual interference with a child faces a maximum prison term of 10 years and a minimum prison term of 14 days. The mandatory minimal sentence can be increased to 45 days depending on factors such as the seriousness of the crime or the crime being a repeat offence.

Is it a crime to encourage a child to touch herself?

Yes. It is a criminal offence for a person to invite or to encourage a child younger than 16 years of age, to touch him, to touch herself or to touch another person for a sexual purpose. In the second and third cases, it is not necessary to have any contact between the person inviting or encouraging the child and the child herself. The fact that the child had sexual contact with herself or with another person is enough.

Keep in mind that the offences of sexual interference and invitation to sexual touching require that the accused have a sexual aim. A parent who spanks her child is not committing the offence of sexual interference even if she is hitting him on the buttocks. However, depending on the circumstances, a spanking may be considered to be the offence of assault.

At what age can a person consent to sexual activity?

As a general rule, in Canada, a person can consent to sexual activity once he is 16 years old. In principle, before a child reaches this age, any sexual activity with him is illegal, even if he consents.

For example, if a 13 year old child decides to enter into a sexual relationship with a 17 year old child, the older child is committing an offence if she agrees to participate, even if it wasn’t her idea in the first place. To learn more, read our Infosheet entitled Consent and offences of a sexual nature  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/400/ ).

Is the age of the person having sexual relations with a child relevant?

Yes. Firstly, a child can never be accused of an offence if he was under 12 years of age when he broke the law. A person must have reached the age of 12, in order to be held criminally responsible for his acts.

Furthermore, a person who is twelve or thirteen years old can only be tried for the offence of sexual interference or invitation to sexual touching in the following cases:

• He is in a position of trust or authority towards his partner;
• His partner is in a relationship of dependency with him;
• He is in a relationship in which he is exploiting his partner.

The law also provides an exception (a defence) for adolescents who have consensual sexual contacts, if all of the following conditions are met:

For sexual contact in which the younger partner is 12 or 13 years old:

• There is less than a two-year age gap between the partners;
• The older partner is not in a position of trust or authority toward the younger one; and
• The relationship is not one of dependency or exploitation of the younger partner.

For sexual contact in which the younger partner is 14 or 15 years old:

• There is less than a five-year age gap between the partners;
• The older partner is not in a position of trust or authority toward the younger one; and The relationship is not one of dependency or exploitation of the younger partner;
  OR
  
• The partners are married.

This last exception is there to ensure that sexual acts between spouses are not considered criminal even if there is more than a five-year age difference between the spouses.

In fact, certain Canadian provinces allow adolescents under the age of 16 years to marry, subject to specified conditions. This is not the case in Quebec where an adolescent must be at least 16 years old in order to get married.

Is the situation any different when the victim is 16 or 17 years old?

Yes. In general, an adolescent who is 16 or 17 years old can have consensual sexual contact with any partner he chooses, regardless of the age of the partner.

The following elements must be established in order to prove that an offence was committed against an adolescent who is 16 or 17 years old:

• The accused was in a position of authority or trust towards the adolescent; or
  
• The adolescent was in a position of dependence towards the accused; or
  
• The accused was in a relationship in which he was exploiting the adolescent.

What is meant by “authority” and “trust”?

High school teachers, daycamp employers and daycamp monitors can all be considered as being in a position of authority. Family friends and neighbours would be considered as being in a position of trust. Due to their position with regards to an adolescent or child, these people have a certain power. It was therefore decided that in such cases, even if the adolescent or child gives his consent, it is not valid.

For example, 17-year-old Anthony is a monitor at a summer camp called “The Little Birds” and 14-year-old Candy is a camper. They noticed each other during Candy’s stay. The night before Candy leaves, they share a long kiss goodbye in the monitors’ tent. Anthony is committing an offence because he is a position of authority towards Candy.

An offence has occurred even if Anthony didn’t use his position of authority to convince Candy to kiss him; it’s enough that this relationship of authority existed. In other words, a person can be committing an offence even if the acts in question did not occur within the context of the relationship that gives a potential power over the adolescent. So this means that a teacher doesn’t stop being a person in authority towards an adolescent just because it’s summer and class only starts in the fall.

What is meant by a relationship of dependence or exploitation?

A position of dependence can result from the economic dependence of the victim towards the accused. This would be the case if a close family relation takes in a teenager, and then takes advantage of the situation to have sexual contact with him.

Finally, a person cannot rely on an adolescent’s consent to sexual contact if they are in a relationship in which the adolescent is exploited. To figure out whether an adolescent is being exploited, one must consider the specific circumstances in every situation. However, the main factors to consider are the adolescent’s age, the age difference between the accused and the adolescent, the evolution of their relationship, and the influence the accused has over the adolescent. For example, sexual contact between a 43-year-old and a 14-year-old adolescent carries a greater risk of exploitation than a relationship between a 19-year-old and a 17-year-old adolescent.

Again, it is not necessary to prove that the consent to the sexual activity (if it was given) was obtained using this position of dependence or exploitation.

What happens if the accused truly believed that the victim was old enough to consent?

It depends. It is up to a person to make sure his sexual partner is old enough to be capable of consenting. If charges are laid, turning a blind eye to the partner’s age or failing to take all reasonable steps to check her age before engaging in sexual activity carries the same consequences as knowing the partner was too young to consent. It is considered to be an offence.

On the other hand, an accused might be acquitted if he had an honest belief regarding the victim’s age and he took reasonable steps to check her age (for example, by asking her how old she is).

What is incest?

Incest occurs when a person has sexual relations with his child, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter. The definitions of “brother” and “sister” include half-brothers and half-sisters, i.e. siblings who have only one parent in common.

In order for incest to occur, the two people having sexual intercourse must be biologically related. A family member who has sexual intercourse with an adopted child is not committing incest. Also, cousins, aunts, uncles, nieces and nephews are excluded from the definition of incest. Furthermore, incest only occurs if there was actual sexual intercourse (i.e. penetration).

However, keep in mind that, depending on the age of the participants or the absence of consent, any sexual contact with a family member might amount to another offence such as sexual assault or sexual interference with a person under 16 or an adolescent.

What are the possible sentences for a conviction of sexual interference or incest?

The same sentence exists for the offences of sexual interference and invitation to sexual touching with a person under 16 years old or with an older adolescent. In all such cases, an accused who is found guilty faces a maximum prison term of 10 years. The law sets out a mandatory minimum sentence of 14 days in prison. However, the mandatory minimum sentence can be increased to 45 days, depending on factors such as the seriousness of the offence or the offence being a repeat offence.

A person who commits incest faces a maximum prison sentence of 14 years. There is no mandatory minimum sentence for incest.

Following a conviction for incest or for sexual interference or invitation to sexual touching with a child under 16 years of age, the judge has the power to forbid the convicted person from being in a public park, a swimming area attended by children under 16 years of age, a daycare, a playground or a school property.

The judge can also forbid the person from seeking, accepting or keeping a job, even as a volunteer, that would place him in a position of trust or authority towards children under 16 years old. Finally, the judge can forbid the person from using a computer in order to communicate with a person under 16 years old. These different orders given by the judge do not have a fixed timeframe and can even be permanent.