Sixteen and ready for sex?
The Canada eZine - Sex

Raising the age of consent tries to make young teens off-limits.

DAFNA IZENBERG

If legislation tabled last week by Justice Minister Vic Toews passes in the fall, Canada will have a new age of consent -- with a new name. The "age of protection" would raise to 16 (from 14) the age at which teens can consent to sexual activity. Concerns about infringing on youths' rights and criminalizing teenage behaviour (a 2002 Health Canada study found over 50 per cent of Grade 9 students had engaged in "preliminary sexual activity" like kissing or touching, and almost a third had tried oral sex) have made the bill contentious, with one opponent describing supporters as "anti-sex." But there is absolute consensus among observers on one point: the need to protect young people from sexual exploitation. Where they differ is on how best to achieve this.

The government has included a "close-in-age" exemption, allowing sexual activity between adolescents as young as 14 with peers less than five years older. Still, critics are concerned that adolescents' unique circumstances and varying developmental needs could be overlooked under the new legislation. "When we deal with arbitrary cut-offs, we lose the flexibility to apply the law in a much more specific and individualized kind of way," says Peter Dudding, executive director of the Child Welfare League of Canada.

The CWLC supported amendments to the Criminal Code last year allowing consent of a person under 18 to be nullified if a judge determines the person was exploited. Dudding says with proper implementation, these amendments could provide the necessary protection while capturing the complexities of child development and human relationships. But John Muise, a 30-year veteran police officer and currently with the Canadian Centre of Abuse Awareness, says they remain subjective. "There's nothing subjective about 16," he states.

Many age-of-consent skeptics see education -- health information, self-esteem, and negotiating skills -- as the key to helping youth stay safe. And Pearl Rimer of the Toronto Child Abuse Centre points out that, at a minimum, Canadians need to learn about the law. Many people do not know Canada's age of consent, or that it refers to all forms of sexual activity, not just intercourse.

Maureen Reid of the Children's Aid Society of London/Middlesex sees the new law as an opportunity to create stigma around sexualizing children. "If we start to think about 14-year-olds as too young to have a relationship with an adult, that's going to impact a certain percentage of our community because they won't be able to point to the Criminal Code and say, 'Well, hey, it's legal.'" Many advocates of raising the cut-off believe 14-year-olds are simply more vulnerable than 16-year-olds, particularly with the proliferation of child pornography on the Internet and an adversarial criminal justice system.

Reid has seen very vulnerable youth turn to exploitive relationships for survival, but even teens with multiple resources are susceptible to intense feelings early in adolescence, a time when the need for adult attention is as strong as emerging sexual feelings. "Do you remember being 14?" says Reid. "It's a powerful time in your life."


CANADA'S LEGAL AGE OF CONSENT TO SEXUAL ACTIVITY

This paper will review the origins of the current "age of consent" laws in Canada and discuss some of the arguments for and against raising the legal age for consent to sexual activity from 14 to 16.

LEGISLATIVE HISTORY

The history of age of consent laws in Canada has evolved considerably in the past century so that the existing Criminal Code prohibitions against sexual contact with children bear scant resemblance to those that were in place as recently as 20 years ago.

A. Early Criminal Code Offences

As pointed out in the 1984 Badgley Report on Sexual Offences Against Children, Canada has a long history of prohibiting sexual intercourse with young females, regardless of their consent. Only girls under 12 were absolutely unable to consent to sexual intercourse until 1890, when the age limit was raised to 14. With the advent of the Criminal Code in 1892, the strict prohibition against sexual intercourse was retained for girls under 14 (not married to the accused) and the law was strengthened to make an accused’s belief about the young woman’s age irrelevant. That age limit has not changed and remains in place today, with narrow exceptions for consensual activity between young persons less than two years apart in age.

Over time, the Canadian criminal law also provided qualified protection from sexual exploitation for females over 14. For example, the Badgley Report notes that seduction of a girl over 12 and under 16 "of previously chaste character" was made an offence in 1886. The offence was retained in the 1892 Criminal Code, in respect of girls between 14 and 16, and remained in force until 1920, when the offence was changed to prohibit "sexual intercourse." After 1920, the question of who was more to "blame" became an issue that could lead to acquittal but the offence remained in force until 1988.

In addition to those offences reviewed above, the "seduction" of a female under 18 "under promise of marriage" was made an offence in Canada in 1886 and amended in 1887 to apply to females under 21. In 1920, the offence of "seduction" (without reference to promise of marriage) was made applicable to girls "of previously chaste character" between 16 and 18.

From this it will be seen that a complete ban on sexual intercourse never did apply to girls over 14.

B. Bill C-15 (1)

Amendments to the Criminal Code in 1988 repealed the aforementioned unlawful intercourse and seduction offences. In their place, Bill C-15 created new offences called "sexual interference" and "invitation to sexual touching" that now prohibit adults from engaging in virtually any kind of sexual contact with either boys or girls under the age of 14, irrespective of consent. Introduced at the same time, the offence of "sexual exploitation" also makes it an offence for an adult to have any such contact with boys and girls over 14 but under 18, where a relationship of trust or authority exists between the adult and child.

A number of documents and publications published prior to those 1988 Criminal Code amendments suggest a variety of reasons for those changes in the law. Most often cited was the perceived unequal treatment of boys and girls, since the earlier offences related strictly to female victims. Furthermore, the offences of unlawful sexual intercourse did nothing to protect young women from other forms of sexual contact short of intercourse. The lack of protection for girls between 14 and 16 who were not of chaste character or who were found more to blame for an offence was also seen as a serious limitation on the law’s ability to protect young women from pregnancy or to maintain standards of morality, assuming that was the motivation behind it. The kind of scrutiny that a complainant might face in testing the proof of her chaste character no doubt also contributed to the fact that few charges were being laid under that provision prior to its repeal.

The Law Reform Commission of Canada’s Working Paper 22 recommended the repeal of the seduction offences relating to young women over 18 and under 21 because they assumed "a general sexual immaturity among women" and attributed to men "the sole responsibility for making sexual decisions." The Commission said those were incorrect and unjust assumptions that should not be reflected in the criminal law. However, the Working Paper took a different view of the unlawful intercourse offence relating to those under 16. In addition to supporting the retention of a "total prohibition" of sexual intercourse with female persons under the age of 14, the Law Reform Commission expressed the view that intercourse between adults and young persons under 16 should continue to be prohibited by the criminal law. Nevertheless, the Commission recommended repeal of that offence on the grounds that the offence of contributing to juvenile delinquency was a better prohibition that accomplished the same thing in a gender-neutral way. It must be noted that contributing to delinquency has not been a criminal offence since the Juvenile Delinquents Act was repealed and replaced by the Young Offenders Act in 1984.

In summary then, except for the offences of buggery and gross indecency, the age of consent for sexual activity has at no time been set higher than 14 in Canada, although prior laws did make men vulnerable to prosecution for sexual intercourse with a girl under 16, 18, or even 21 in certain qualified circumstances. As noted above, the 1988 amendments to the Criminal Code repealing those provisions were contained in Bill C-15, which was introduced by the then Justice Minister, Ramon Hnatyshyn. Although a bill introduced in 1981 by previous Justice Minister Jean Chrétien had also proposed the repeal of the seduction offences, it would have retained a broader, gender-neutral version of the prohibition against sexual activity with a young person between 14 and 16. However, Bill C-53 was never passed and a later version, in the form of Bill C-127,(2) brought about significant changes to the criminal law in the area of sexual offences but did not specifically address the sexual exploitation of young persons.

CURRENT LAW

The Criminal Code does not now criminalize consensual sexual activity with or between persons 14 or over, unless it takes place in a relationship of trust or dependency, in which case sexual activity with persons over 14 but under 18 can constitute an offence, notwithstanding their consent. Even consensual activity with those under 14 but over 12 may not be an offence if the accused is under 16 and less than two years older than the complainant. The exception, of course, is anal intercourse, to which unmarried persons under 18 cannot legally consent, although both the Ontario Court of Appeal(3) and the Quebec Court of Appeal(4) have struck down the relevant section of the Criminal Code.

PENALTIES (OLD AND NEW)

Prior to passage of Bill C-15, section 153(1) of the Criminal Code made it an indictable offence for any male person to have sexual intercourse with a female under 14 who was not his wife, whether or not he believed she was at least 14; the maximum penalty upon conviction was life imprisonment. Males under 14 were exempted from liability for this offence. Sections 151 and 152 now prohibit virtually all kinds of sexual contact with children under 14 and the defence of consent is unavailable for those offences as well as for any sexual assault offences in respect of both male and female victims under 14. The maximum available penalty for "sexual interference" or "invitation to sexual touching" is ten years for those prosecuted by way of indictment.

Also prior to Bill C-15, a male person who had sexual intercourse with a female not his wife who was over 14 but under 16, and "of previously chaste character," was guilty of an indictable offence, and liable to a maximum of five years’ imprisonment, whether or not he believed she was 16. Consent was not specifically precluded as a defence, however, and failure to prove that the accused was more to blame than the female person could result in acquittal. Once again, males under 14 were not open to prosecution for this offence. Section 153 now prohibits "sexual interference" or "invitation to sexual touching," in respect of a young person over 14 but under 18, where the accused is in a relationship of trust or authority towards the complainant or the complainant is in a relationship of dependency with the accused. Previous sexual experience and/or consent are no longer relevant where this special relationship exists. The maximum available penalty is five years’ imprisonment for those prosecuted by way of indictment.

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POLICY CONSIDERATIONS

Because different individuals will reach physical and/or psychological maturity at different times, setting an age under which individuals cannot validly consent to sexual activity is an exercise that will be arbitrary to some extent. However, the public and the courts have thus far accepted that it is also a valid exercise of Parliament’s legislative powers.

For example, in 1978, the Law Reform Commission of Canada said that, because children under 14 "may not have the experience or the maturity to make decisions in their own best interests about their own sexuality, a case can reasonably be made to prevent their exposure to sexual activity regardless of their purported consent."(5) Because of the potential for physical and emotional harm from such experiences, the Supreme Court of Canada has also accepted that protecting female children from premature sexual intercourse "is a pressing and substantial concern."(6)

The 1986 Badgley Report also agreed that "society has a vital interest in ensuring that its naturally weaker members are protected by legal safeguards against the naturally stronger, and particularly, that the welfare and advantage of its children and youths will be protected and fostered." However, the same Report noted that "perhaps the most difficult legal issue is whether the criminal law strikes an appropriate balance between protecting children from sexual abuse and exploitation, on the one hand, and permitting the sexual expression of young persons as they proceed through adolescence into young adulthood, on the other."

A. In Support of the Status Quo

Perhaps the strongest policy argument against raising the age of consent from 14 to 16 is that it would place unprecedented limits on the sexual freedom of young persons. Hence, proponents of such a change may be challenged to provide empirical evidence demonstrating that adolescents under 16 are being sexually exploited or, alternatively, that the incidence of pregnancy or sexually transmitted diseases among that age group calls for an expansion of the existing prohibitions. It must be noted that simply raising the age of consent to 16 would criminalize sexual activity between adolescents that is now legal. Because the modern sexual assault provisions of the Criminal Code no longer depend upon proof of intercourse, such an amendment could allow a 16-year-old to be prosecuted for virtually any sexual contact with a 15-year-old boyfriend or girlfriend.

B. In Support of Raising the Age of Consent

Concerning the sexual activity of those between 14 and 16 years of age, the Law Reform Commission of Canada expressed the view in 1978 that "the state and the public have an interest in controlling the sexual behaviour in this age group."(7) Furthermore, the Commission made clear that it was in favour of retaining gender-neutral protection for this group, if necessary through an amendment to the Criminal Code targeting adults who contribute "through sexual interaction, to the delinquency of young persons under the age of sixteen."(8)

Other groups have also made recommendations for raising the age of consent because of concerns about the potential for sexual exploitation of young persons by adults. For example, in its submission to the Standing Committee on Justice and Legal Affairs during consideration of Bill C-27,(9) the Canadian Association of Chiefs of Police urged the federal government "to define 18 years and over as the age of consent for sexual encounters with adults." Similarly, during the four-year review of Bill C-15, Citizens Against Child Exploitation argued that the age of consent for sexual activity should be raised to 16, with three years being the permissible age difference between consenting adolescents.(10)

PROPOSED LEGISLATIVE AMENDMENTS

Private Member’s bill C-278, proposed by Mr. Hanger, had first reading on 26 February 2001. Bill C-278 would amend Criminal Code provisions dealing with prohibited sexual acts committed with children, or in the presence of children, by raising the age of those affected from 14 to 16.

Bill C-278 would also amend subsections 150.1(1) and (2) to remove the defence of consent where the complainant was under the age of 16, rather than 14 as is now the case. As with the existing legislation, an exception to that rule would be retained for an accused who was under 16 and less than two years older than the complainant. However, it must be noted that the present legislation can exempt 14- and 15-year-olds from liability, presumably to avoid criminalizing sexual activity between peers. In order to continue a similar exemption for an accused who was over 16 but less than two years older than the complainant, that age limit would have to be raised accordingly. That would require amendment to section 150.1(2)(a) to allow for the defence of consent where an accused was over twelve "but under the age of eighteen years."

CONCLUSION

Any change in the age of consent in section 150.1 would also have to take into account the scheme of sexual offences currently found in Part V of the Criminal Code, as Bill C-278 appears to have done. However, as previously mentioned, Parliament may prefer to retain an exemption from liability for those engaging in consensual sex with persons under the legal age of consent, where the difference in age is less than two years.

(1) An Act to amend the Criminal Code and the Canada Evidence Act (Sexual Offences), R.S.C. 1985, c. 19, (3rd Supp.)

(2) S.C. 1980-81-82-83, c. 125.

(3) R. v. M. (C.) (1995), 23 O. R. (3d) 629. Two judges found that s. 159 of the Criminal Code infringed s. 15 of the Charter by discriminating on the basis of age, while the third judge found discrimination on the basis of sexual orientation. All three agreed that the law could not be saved as a "reasonable limit" under s. 1 of the Charter.

(4) R. v. Roy (1998), 101 D.L.R. (4th) 148.

(5) Law Reform Commission of Canada, Working Paper 22, Criminal Law: Sexual Offences, at p. 26.

(6) R. v. Hess and Nguyen, [1990] 2 S.C.R. 906 at p. 920.

(7) Working Paper 22, (1978), at p. 26.

(8) At the time, legislative proposals to replace the Juvenile Delinquents Act did not preserve the offence of contributing to juvenile delinquency.

(9) An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation), S.C. 1997, c. 16.

(10) Four-Year Review of the Child Sexual Abuse Provisions of the Criminal Code and the Canada Evidence Act, June 1993, p. 5. Citing insufficient evidence "to justify changing the age limits currently established by the legislation," the Committee recommended that s. 150.1 of the Criminal Code be retained in its present form.


The Changing Face of Sex Education in Canada

Teens Kissing

By Monique Bellamont - March 2013.

With the advent of the internet, which really picked up speed circa 1995, we needed to change the way we dealt with sex education in Canada because teenagers and young children now had access to websites showing graphic depictions of sexual acts. Since the rise of SmartPhones (which were first released in 2001 and later grew in popularity with the release of iPhone and Android systems, those sexual acts are now readily available and in the hands of children.

Thus our government, school boards et al, has been forced to reconsider when do we start teaching our children about sex? When is the cut off point for when we start showing our kids things that even as adults we don't really talk about that much.

On a political level in Ontario the Toronto MPPs have been clashing bitterly among themselves since 2010 over Ontario’s proposed new sex education curriculum.

In one corner some MPPs argued that the updated curriculum was desperately needed in elementary schools in an era where any kid with a computer or a SmartPhone can now easily access depictions of all kinds of sex via the internet. Everything at their fingertips.

In the other corner are those who argued just as hard that introducing the curriculum, which would see Grade 3 students learning about homosexuality and Grade 7 students discussing anal and oral sex, would severely hurt their re-election chances. Seriously, they were more worried about re-election than properly preparing our children.

And now it is 2013, and its an election year. The fuss over sexual education is going to hit the proverbial fan. Back in 2010 the Liberal Party has since flip flopped on introducing the new curriculum, even though they know its desperately needed. Now under new leadership the Liberal Party, former education minister Kathleen Wynne (Ontario's first openly gay premier), the topic of revamping sex education in Ontario schools is back on the table.

The question then becomes, does dealing with these topics with younger children encourage or discourage sexual activity amongst preteens? There are pros and cons on both sides of the topic.

Many children will be embarrassed to ask a parent a question like "Mommy, what is anal sex?" and thus will go to the internet instead. It is simply is what kids do these days. It is a whole generation of children who don't bother to ask their parents questions and instead ask the question on Google or Wikipedia or YouTube.

It could also lead to even more embarrassing questions like "Daddy, what is a strap-on dildo?" Which leads me to believe most kids will just type that into Google instead of asking their parents or a teacher.

Of course, who says the internet isn't doing a good job of teaching our kids anyway? It is entirely possible that the internet might be the solution to the problem, and not the problem itself. After all, kids are only going to go looking for such things on purpose - or stumble across them by accident. In which case they will learn something - which may or may not warp their perception of sex, or they may simply learn something educational on a website that was really meant for entertainment.

Thus, yes, our kids now have access to graphic depictions of sex - easily. But how easy was it back in the 1970s or 1980s when Playboy, Penthouse and Hustler magazines were in their height of popularity? It was actually pretty easy to find such things. Many moms and dads kept such things in a sock or underwear drawer as a "marital aid".

On top of the technology, we also now live in a world where Toronto escort agencies have websites offering everything from threesomes to Nuru massage to dominatrix services.

Sexting Miley Cyrus, Celebrity

So its not like our kids are going to stay virgins forever. Especially when there is now "sexting" (sending sexually explicit images via text message attachments on phones).

However there is good news... Sex education / the internet is working. Teenagers are now waiting longer to have sex. But they are engaging in oral sex more often, because that is seen as "no big deal", whereas sexual intercourse is the one they are willing to wait for.

Between 1988 and 2012 the percentage of teens in the USA, ages 15 to 19 who have ever had sex has dropped considerable, down 13%.

However it should also be noted that online pornography, masturbation and obesity rates in the USA have skyrocketed during that same period of time. That statistic may simply be due to the fact that obese teenagers are less likely to have sex and are masturbating to online porn instead.

The end result is that teenagers and children are now learning about sex (including bizarre examples of sex, like the infamous "Two Girls One Cup" video) at much younger ages. The good news is that the teenage sex prevalence is shrinking, thus they are evidently choosing to wait longer. Whether that is due to rampant obesity, the internet, or sex education (or all three) who is to say.

In which case many teenagers will arrive in college or university, find freedom from their parents at last and probably lose their virginity during their first year of college. Like I did.

Hey, it happens.

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