What is the difference between sexual interference and sexual assault?
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What is the difference between sexual interference and sexual assault?
Sexual assault is the application of force of a sexual nature without consent. Sexual interference is touching a person who is under 16 years of age for a sexual purpose.
If you committed a sexual assault on someone who is under 16 years of age, then you also committed sexual interference. This is because an intentional act that is considered applying force of a sexual nature will always be considered touching for a sexual purpose, and persons under 16 years of age generally cannot consent.
In most cases, if you committed sexual interference, then you also committed sexual assault. However, it is possible (but very unlikely) to commit sexual interference without committing sexual assault, because a touch for a sexual purpose may not rise to the level of applying force of a sexual nature.
Can I be convicted of both sexual interference and sexual assault?
You cannot be convicted of both sexual interference and sexual assault for the same “misconduct.” Even if a judge or jury finds you guilty of both sexual interference and sexual assault, you will not be convicted of – or sentenced for – both.
In fact, in Canada, you cannot be convicted of any two offences for the same act(s) when those two offences are sufficiently similar. This is the rule against double convictions from the 1975 Supreme Court of Canada decision Kienapple v R. For example, if you go to trial on charges of sexual assault and sexual interference, and the court determines that you are guilty of both for the same actions, then the court will convict you on one of the charges (usually sexual interference) and enter a “conditional stay of proceedings” on the other charge (usually sexual assault). The stay is conditional because it is based on the sexual interference conviction.
Why am I charged with both sexual interference and sexual assault?
Generally, you are charged whenever a judge or justice of the peace is satisfied that the police have reasonable and probable grounds to believe that you committed an offence; and you are prosecuted for that offence so long as the crown prosecution is satisfied that doing so is in the public interest and there is a reasonable likelihood or prospect of convicting you. This applies to each individual charge. So, when Parliament makes two laws that often overlap – like sexual assault and sexual interference, or impaired driving and driving with a blood alcohol level of 0.08mg/mL or more – people are often charged and prosecuted for both, even though a judge cannot convict them of both.
There are several reasons why police and prosecutors proceed with two charges knowing the accused can be convicted of only one, and those reasons can be complicated and hard to discern. One reason is that different evidence is often required to prove each of the two alleged offences, and the crown prosecutor does not want to put all their eggs in one basket. Some people believe that crown prosecutors do this for increased negotiating power – that they can entice accused persons to plead guilty to one charged offence in exchange for the other being dropped. This is against the appropriate role of crown prosecutors in Canada’s judicial system, and is something that most believe happens more frequently in the United States.
Ultimately, I cannot say why you – or anyone else – is charged with both sexual assault and sexual interference for the same act(s), but know that you cannot be convicted of both for the same misconduct.