Legal Interview
Simona Jellinek is a Toronto based civil lawyer. She's one of a few civil lawyers who specialize in sexual abuse cases. This interview was conducted Friday, September 18, 2009.
Q: What’s the legal definition for childhood sexual abuse?
A: Legally there actually isn’t a definition for childhood sexual abuse. It could be anything from speaking in a highly sexualized nature to a child who is under-aged, to punishment which involves sexual organs or which may actually involve threats of sexual assault. So the criminal courts will look at that and most likely determine that it’s a sexual assault. The civil courts haven’t looked at this in as much detail as the criminal courts, mostly because our civil system works very differently. Our civil system is geared towards settling cases as opposed to trying cases. Whereas the criminal system, you either plead guilty or you go to trial. So there’s rarely a halfway measure.
So there’s the obvious, which is the obvious physical touching of a sexualized area of the body. That’s pretty obvious especially if the perpetrator is gaining some sort of sexual satisfaction from it. But it’s much more than that because beating a child on his or her buttocks or genitals, even if the person doing it isn’t necessarily getting any sexual satisfaction out of it, can be argued to be sexual assault. And in fact there is a string of criminal cases which deals with exactly this issue… if you, as punishment, take your child and tell them to get naked and you beat them on the buttocks, that’s sexual because the buttocks is a sexual area of the body. So it’s not a particularly easy question to answer because it runs the gamut.
Q: What are some examples that would classify as sexual assault of a child?
A: Any kind of sexual touching of a child is by definition sexual assault. And by child I mean somebody who’s as old as 15 or 16. If we’re talking about little kids, 4, 5, 6,7 year olds, even younger than that or older, than any situation where an adult touches that child in a sexual place is a sexual assault. That child cannot consent to being touched. Even if it’s a gentle loving kind of touch, a lot of perpetrators of childhood sexual abuse are not violent. In fact, in most situations, there really is no violence, there’s no aggressiveness. It’s mostly manipulating the child, and grooming the child into allowing the behaviour, or more generally even if the child doesn’t want it, the child will say yes anyways. And so the grooming is making sure the child doesn’t tell anyone. So, any form of touch of a child, which is sexual in nature, is sexual assault. Often times that adult will say, “hey, he or she was 16, they said yes. I didn’t force.” Well then the question becomes whether or not that child’s consent was true consent. Because if that child is consenting to being touched in a sexual way by someone where there’s a fiduciary relationship between the child and the adult, parents are the obvious example, teachers, lawyers, doctors, anybody who has control over the child, there’s a real question as to whether or not consent can actually occur. You have two different people with very different bargaining powers; very different understanding. And this doesn’t necessarily have to be childhood abuse. It could be adults. It could be, you know, if you have a sexual relationship with your priest or your rabbi, is that a real sexual relationship even if you consent, or is that person somehow perpetrating an assault because they have so much power over you? Same thing goes with the older children, where the age of consent is a bit more blurred. So getting back to your question, basically anything from fondling, to oral sex, to penetration, either digital or pineal, or with instruments of various kind, those are the obvious ones.
