canada
In Canada, the relevant offence is s. 153 of the Criminal Code:
153 (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person ...
Note there are three ways to get to this offence:
- being in a position of trust
- being in a relationship of dependency
- being in a relationship that is exploitative
As to whether someone is in a position of trust, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:
The age difference between the accused and the young person;
The evolution of their relationship;
The status of the accused in relation to the young person;
The degree of control, influence or persuasiveness exercised by the accused over the young person; and
The expectations of the parties affected, including the accused, the young person and the young person’s parents.
R. v. Aird, 2013 ONCA 447, para. 28.
Nothing precludes a suspended teacher from being in a position of trust with a pupil. Especially if the teacher was a teacher at the pupil's school and the pupil knew the teacher as such.
england-and-wales
In England and Wales, the relevant offence is at s. 16 of the Sexual Offences Act (2003).
The interpretive section (s. 21) does not require the teacher to have ever actually taught or to be currently teaching the particular child. The phrasing is:
This subsection applies if A looks after persons under 18 who are receiving education at an educational institution and B is receiving, and A is not receiving, education at that institution.
This judge apparently read this broadly enough to capture teachers who were still employed by the educational institution yet suspended. This has some intuitive appeal, given that the same concerns would present themselves before and after a suspension of a teacher. However, I can find no case law presenting an analogous situation, so this may be the first time this question has arisen. Whether this is correct in law will have to wait for appeal.
