Criminal Code of Canada - section 153.1(1) - Sexual Exploitation of Person with Disability

section 153.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section makes it a criminal offence for a person in a position of trust or authority towards a person with a disability to counsel or incite them to touch themselves or others without their consent.

SECTION WORDING

153.1 (1) Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

EXPLANATION

Section 153.1(1) of the Criminal Code of Canada is aimed at protecting vulnerable individuals who are in a relationship of dependency with someone in a position of trust or authority, such as a caregiver or a family member. This section criminalizes the act of counseling or inciting an individual with a mental or physical disability, or in a dependent relationship, to engage in non-consensual sexual touching of themselves, the person who is counseling or inciting them, or any other person. The provision recognizes that individuals with disabilities or in dependent relationships are particularly vulnerable to sexual abuse and exploitation and seeks to criminalize the abuse of a position of power or trust to engage in such behaviour. In order to be found guilty of an offence under this section, the offender must have counseled or incited the victim for a sexual purpose, meaning that the act must have been committed with the intention of obtaining a sexual benefit. The touching must also have been non-consensual, meaning that the victim did not provide explicit and unambiguous consent to the act. The punishment for an offence under this section can be severe, with a maximum penalty of five years' imprisonment for an indictable offence and up to eighteen months for a summary conviction offence. In addition to these legal consequences, individuals found guilty under this section may also face social and reputational consequences, as well as restrictions on their ability to work with vulnerable individuals in the future. Overall, Section 153.1(1) of the Criminal Code of Canada represents an important legal protection for vulnerable individuals and serves as a reminder that sexual exploitation is particularly abhorrent when it takes place within a relationship of trust or dependency.

COMMENTARY

Section 153.1(1) of the Criminal Code of Canada is an important legal safeguard for people with mental or physical disabilities who are in a relationship of dependency or under the care of someone in a position of trust or authority. The law prohibits anyone in such a position from engaging in sexual behavior with the vulnerable person, and further makes it an offense for the caregiver or authority figure to encourage or incite the vulnerable person to touch themselves or others in a sexual manner. This section of the law is particularly important because individuals with mental or physical disabilities often require special care and attention, which can make them more vulnerable to sexual exploitation and abuse. Caregivers and authority figures such as teachers, social workers, healthcare professionals, and family members are in a position of trust and influence in the lives of these vulnerable individuals, which makes them highly susceptible to abuse. In situations where a caregiver or authority figure engages in sexual behavior with a person with a disability, they are taking advantage of the power differential that exists in the relationship. The person with the disability is not able to provide informed and meaningful consent, and therefore, is not in a position to make a decision about whether or not to engage in sexual activity. The same power dynamic applies when a caregiver or authority figure encourages or incites the vulnerable person to engage in sexual behavior. Section 153.1(1) recognizes the importance of protecting these vulnerable individuals and holds caregivers and authority figures accountable for any sexual exploitation or abuse. The law imposes strict penalties that are commensurate with the seriousness of the offense. The penalties for this offense range from imprisonment for a term not exceeding five years, when the offense is deemed indictable, to imprisonment for a term not exceeding 18 months, when the offense is deemed punishable on summary conviction. Overall, section 153.1(1) of the Criminal Code of Canada is a critical legal safeguard for people with mental or physical disabilities who are in a relationship of dependency or under the care of someone in a position of trust or authority. The law recognizes the unique power dynamic that exists between the caregiver or authority figure and the vulnerable person and takes steps to protect the vulnerable person from sexual exploitation and abuse. Through strict penalties for this offense, the law sends a clear message that sexual exploitation and abuse of vulnerable individuals will not be tolerated in Canadian society.

STRATEGY

Section 153.1(1) of the Criminal Code of Canada is an important statute as it aims to protect people with mental or physical disabilities from being victimized by people in positions of trust or authority. The section criminalizes the act of counseling or inciting a person with a disability to touch their own body or that of another person without their consent, for a sexual purpose. This provision recognizes the vulnerable nature of people with disabilities who may be more susceptible to abuse and exploitation, and imposes significant penalties on offenders. However, in dealing with this section of the Criminal Code, there are several strategic considerations that must be taken into account, including the following: 1. The Role of Evidence: In any criminal proceeding, the burden of proof rests with the prosecution, who must establish beyond a reasonable doubt that the accused person has committed the offense alleged. Therefore, for a successful prosecution under section 153.1, the prosecutor must present credible and compelling evidence to prove that the accused was in a position of trust or authority towards the victim and that they counseled or incited the victim to engage in sexual activity without their consent. The prosecutor must also demonstrate that the accused acted for a sexual purpose, which can be challenging to prove without clear evidence. 2. The Vulnerability of the Victim: Given that section 153.1 targets individuals with mental or physical disabilities who may be more susceptible to victimization, the prosecutor must exercise sensitivity and empathy towards the victim. The victim's disability could potentially make them more vulnerable as a witness, so the prosecutor should take the time to build a rapport with the victim to gain their trust and cooperation. The prosecutor should also be prepared to address any challenges that may arise during the trial due to the victim's disability, such as communication or memory difficulties. 3. The Role of Witnesses: In cases where the victim is unable to provide testimony or to recollect events, witnesses can play a critical role in the prosecution's case. Witnesses should be selected based on their ability to provide pertinent information that can strengthen the case, and their credibility will be essential to the success of the prosecution. 4. Sentencing Considerations: In cases where the accused is found guilty under section 153.1, the court must consider the nature and circumstances of the offense, as well as the impact on the victim. The court may also consider the offender's history and character, including any previous criminal history. The court must impose a sentence that reflects the seriousness of the offense and aims to protect vulnerable individuals from future victimization. Considering these strategic considerations, there are several strategies that can be employed to ensure a successful prosecution under section 153.1. These may include the following: 1. Thorough Investigation: A thorough investigation into the matter is crucial to gathering evidence that can support the prosecution's case. This may include obtaining witness statements, forensic evidence, and relevant documentation. 2. Collaboration: Collaboration between prosecutors, police, and victim services agencies can help to ensure that the victim receives the support they need throughout the legal process. Collaboration can also help to streamline the collection and sharing of information to build a more robust case. 3. Victim Support: Providing adequate support to the victim can help to ensure their cooperation and credibility as a witness. This may include providing access to counseling and mental health services, as well as legal representation. 4. Skilled Legal Representation: Skilled legal representation is crucial to ensuring a successful prosecution under section 153.1. A skilled lawyer can help to guide the prosecution through the legal process and can provide effective representation during the trial. 5. Sentencing Submissions: Strong sentencing submissions that highlight the impact of the offense on the victim and the need for protection of vulnerable individuals can help to ensure that an appropriate sentence is imposed in line with the seriousness of the offense. In conclusion, section 153.1(1) of the Criminal Code of Canada is a vital provision that serves to protect individuals with mental or physical disabilities from victimization by people in positions of trust or authority. To ensure successful prosecutions under this section, strategic considerations such as evidence, the vulnerability of the victim, role of witnesses, sentencing considerations, and strategies can be employed to build a robust case and obtain a just outcome.