ARRRRRRRGHHHHHHHH... aka age of consent in Canada

[joeyconnick]

So today I was glancing at the front page of one of our daily newspapers as I walked by a newspaper box and I saw this article, which makes me want to scream:

Age of consent rises to 16

Mother who lobbied for changes believes they will help parents protect 'at-risk' teenagers

Monday, May 05, 2008

The age of sexual consent in Canada has risen from 14 to 16 under a new law that is part of the Conservative government's omnibus anti-crime legislation.

For Diane Sowden of Coquitlam, changes to the Criminal Code didn't come soon enough.

When her daughter became pregnant at the age of 14 by a 27-year-old drug dealer, Sowden turned to police for help, only to discover she had no legal recourse. At 14, her daughter was considered an adult.

Although the older man was sexually involved with her daughter, introduced her to hard-core drugs and "sold" her to a pimp in Surrey over drug debts, there was technically no way to charge him with sexual exploitation.

Fifteen years later, after losing her child to a life of drug addiction and prostitution, Sowden, now 50, is raising two of her daughter's five children.

She believes changes to the law may help other parents keep at-risk children safe from the pain of a life such as the one her daughter has led, "on and off drugs, in and out of the Downtown Eastside, unable to raise her children, known to police."

As executive director of the Children of the Street Society, Sowden has lobbied for years for changes to the Criminal Code.

"I'm overwhelmed that it's happened," Sowden told The Sun. "There were times that I never thought it would."

The Tackling Violent Crime Act makes it illegal for adults to have sex with children under the age of 16. The legislation contains a "close-in-age" provision so that sexually active teens within less than five years of each other can have sex without breaking the law, as long as the older person is not in a position of authority.

The age of consent for anal sex remains unchanged at 18.

The new "age of protection" legislation has been controversial with sexual health experts, but Sowden hopes it will deter Internet predators and pedophiles who target children, and provide parents with legal avenues to protect kids.

"The average age of young people being targeted for sexual abuse, for the sex trade and for Internet luring is 14 to 15," explained Sowden.

"In the U.S. the age of consent is 16 or 18 depending on the state. Canada has been favoured for sex tourism because of our lenient age and flagged on the Internet for the least amount of resistance from police and social workers."

The new law will take effect after Senate passage in February, and is consistent with laws in countries such as Australia, the U.K., the Netherlands and some U.S. states.

Critics have voiced concern that teens will misunderstand the law and refrain from seeking counselling, birth control or medical help in cases of unwanted pregnancy.

Legislating sexual activity may push information about sexual health underground, some youth workers and sexual health educators have argued.

But Sowden argues the benefits outweigh the risks.

"There is going to be a learning curve for police, social workers and the general public to understand it, but the intent is not to criminalize sexual activity." Nor is it about setting moral standards, said Sowden.

"This will make it easier for a parent, a social worker or a police officer to intervene when a child is at risk of being sexually exploited."

Sowden believes a law like this would have given her one more opportunity to help her daughter when problems arose.

"I was shocked that there was such a lack of intervention, that my child could be pregnant, using hard-core drugs and on the street and no one could see her as a child in need of protection under the law."

Now, "even if a child believes they have consented, and agrees to sexual activity, if the adult is five years older, they can be charged," said Sowden.

Sowden believes that educating social and youth workers, parents and kids will be of paramount importance to appropriate understanding and application of the new law.

AAAAAAAAARRRRRRRRRRRRRRGGGGGGGGGGGGHHHHHHHHH! There are so many things wrong with this article it's hard to know where to start.

As some of you may remember, I wrote a paper about age of consent in Canada last summer for one of my classes and I've actually submitted it for publication in an academic journal (although I don't know yet if they'll accept it, though they did like my abstract). Anyway, I just wrote a letter to the editor about how biased and ridiculous the article is. But given that letters to the editor cannot be very long, I didn't even have room to mention how homophobic the whole process of raising the age of consent was given that everyone who was against raising it said that if you do raise it, you should at least abolish the separate higher age of consent (18) for anal sex. Which of course was not done, because the raising of the age of consent has nothing to do with actually protecting youth or caring about youth and everything to do with controlling/squashing/being afraid of youth sexuality. *sigh*

Anyway, so this is the letter I sent in: hopefully it'll get published.

Dear Editor,

I wish I were more shocked by your one-sided coverage of the raising of the age of consent. Is your paper merely a mouthpiece for right-wing views these days?

While no one could dispute that what happened to Ms. Sowden's daughter was tragic, to present that tragedy as a justification for raising the age of consent is ridiculous. What happened to Ms. Sowden's daughter had nothing to do with sex and everything to do with exploitation. Contrary to the views of frightened parents everywhere, the two concepts are not synonymous when it comes to adolescent sexuality.

Your reporter may be interested to know that in 2005, the law had specific provisions added to criminalize sexual relationships with people under the age of 18 when those relationships were exploitative. In addition, Canada already has separate legislation dealing with sex tourism, prostitution, and Internet luring.

Given all this pre-existing legislation, raising the age of consent can only be seen as an attack by fearful adults on teenage sexuality. Yet nowhere in this biased piece can we see included the sympathetic voices of politicians, youth workers, or sexual health educators who opposed this change. Instead Ms. Sowden's tragedy is twisted into a false justification for bad social policy because we must, above all else, save the children.

I didn't even mention how these changes became law in FEBRUARY but only now does the paper see fit to do a big front-page article on the issue. Where were they when these changes were actually being debated?

Gods if I hear one more person tell me about the "liberal media" in this country or the US, I will scream.

[Alexander]

Thank you for your support!

urgh, why do so many people forget as soon as they turn a certain age that they were teens once too? Obviously you haven't

[LOVEjames]

I'm insanely grateful that the age of consent in my state is 16 regardless. But I really hope that the letter you sent gets published, it's totally insane what they're doing.

[johnny11]

haha mine's still 18

[Keiss]

Johnny no its not. In Texas it's 17.

[joeyconnick]

Originally Posted by applovr

Thank you for your support!

urgh, why do so many people forget as soon as they turn a certain age that they were teens once too? Obviously you haven't

Yeah it's weird I kinda never have really lost that identificational thingee with teenagers... I dunno. It probably helps that I'm not a parent; that would certainly be likely to change one's point of view. But when I was a teenager I thought there was so much bogus junk that went on simply because people were "not adults." And no, I haven't forgotten that.

It's kinda like even though I wasn't a student for a number of years and in fact was staff at a university I always identified more with students than with non-students.

Perhaps I'm just a late bloomer or something.

[Psychedelic Bookmarks]

That's an interesting article and letter, joey. The age of 18 for anal is obviously despicable. And if, as you say, there was already legislature in place for those under 18 in exloitative relationships, then I see what you mean about the hypocrisy.

But the new law does at least have this 5 year age range, which, to be honest, should be enough for most teens, right? I mean, if a 14 year old here said they were with a 19 year old, wouldn't some of the older members already be cautioning them because of the age gap? This new law doesn't penalise, say 14 year olds with 16 year olds, so teens still have a pretty free range, right?

You may kill me for this but i do think it is better to set the limit at 16 as in my opinion 14 is just way too young. i believe the age of consent limit should be an equal 16 regardless (excepting exploitation or under guardian). However i do agree with you that the article was very one sided and biased.

Although you should remember that newspapers have political agendas and tend to lean on a particular point of view (like the Sydney Morning Herald in Australia which has a conservative agenda).

Raising the age of consent for anal sex is stupid and unnecessary, but not necessarily homophobic. Homosexuals are not guaranteed to perform or enjoy anal sex and straight couples might do it too. So it's just discrimination to those who practise anal sex, really.

[Nitro]

Correction Connor - age of consent in Canada for anal has been 18 for some time now.

I have no idea where to find this information reliably so perhaps others could help but with the changes in the laws (which have been on the books for awhile now):

1. What is the definition of an exploitive relationship? Examples of teachers or guardians are common but what is the definition itself.

2. Does the five year exemption also apply to anal?

3. What about homosexual sex that isn't anally penetrative? - in legalese that may be referred to as sodomy and by extension of that be called anal ... but clarification would be nice.

As for the legitimacy of raising the age of consent itself:

The only reason to raise the age of consent after the exploitive relationship provisions were made would be to ensure that the potentially exploited would have greater mobility - thereby avoid perhaps one of the most common example scenarios of exploitation ("you have to perform [sex act] or I will leave you here stranded"). Driving laws vary from province to province however and so it seems that the smarter move would be for the provinces to unify the standards and pertinent motor vehicles legislation and then go about changing age of consent!

Joey is right though - all this is, is a "feel good" populist piece of legislation to try and preserve the image of youth as innocent - a complete distortion of what the reality is.

Perhaps this isn't all that bad. Five years is quite generous.

Originally Posted by Nitro

Correction Connor - age of consent in Canada for anal has been 18 for some time now.

Whatever the situation on anal sex law, it's discriminating against people who have anal sex. Not homosexuals. But I don't know if you're disagreeing with me or simply correcting me.

[joeyconnick]

Originally Posted by Connor

Whatever the situation on anal sex law, it's discriminating against people who have anal sex. Not homosexuals. But I don't know if you're disagreeing with me or simply correcting me.

Actually no, it's discriminating against homosexuals and people who are single, because there's an exception to the 18yo rule if you're married and when the law was first written it was decades before marriage in Canada was legal for same-sex couples.

But even if targets "anal sex" and not "homosexuals," guess who invariably have anal sex way more than straight people? Why yes, you're correct: it's gay guys! So while semantically it doesn't say anything about gay or homosexual, that's EXACTLY what the law is all about. It may not be the letter of the law but it damn sure is the spirit.

[joeyconnick]

Originally Posted by Bev26

You may kill me for this but i do think it is better to set the limit at 16 as in my opinion 14 is just way too young. i believe the age of consent limit should be an equal 16 regardless (excepting exploitation or under guardian). However i do agree with you that the article was very one sided and biased.

Although you should remember that newspapers have political agendas and tend to lean on a particular point of view (like the Sydney Morning Herald in Australia which has a conservative agenda).

No I won't kill you... it would be a little expensive to get to Australia, for starters.

You're entitled to your opinion. And while I do know that newspapers have political agendas, I'm saying they shouldn't and they definitely shouldn't to the extent that they right one-sided trash like the article in question, where it's quite cleverly written, really, to make it seem like more than one side is being presented when in fact one side is being favoured over all others.

And my favourite favourite part of this law is generally very little input was sought from the people it most affects, namely teenagers.

[Tim]

In california it's 18... so in my books, Canada is still better then US on that =P

[joeyconnick]

Originally Posted by Arneneithel

That's an interesting article and letter, joey. The age of 18 for anal is obviously despicable. And if, as you say, there was already legislature in place for those under 18 in exloitative relationships, then I see what you mean about the hypocrisy.

But the new law does at least have this 5 year age range, which, to be honest, should be enough for most teens, right? I mean, if a 14 year old here said they were with a 19 year old, wouldn't some of the older members already be cautioning them because of the age gap? This new law doesn't penalise, say 14 year olds with 16 year olds, so teens still have a pretty free range, right?

Yeah but the old law had age ranges too, and the old law based its exceptions on the nature of the relationship, not the age of the participants, which to me is a much fairer way of looking at. I mean, okay, sure, on the face of it I'm not going to immediately assume a 15yo and a 21yo should definitely be together but you know what? My mum was 16 when she met my dad who was 21 and they were married for 27 years and had two kids.

The new law would totally outlaw a 15yo and a 21yo couple whereas the old law would at least look at the relationship's nature.

And as some of the professionals in youth work have pointed out, the fact that there's a "window" is not necessarily going to be understood by youth, because people are going to say "the age of consent is 16" as opposed to "the age of consent is 16... except in certain circumstances where you're 14 or 15 and your partner is no more than 5 years older than you." Plus the old law would not have criminalised a 14yo with a 13yo, whereas the new law does, which frankly you could probably use to overturn the law on the basis of gender equality now that I think of it because I'm betting there are plenty of male older, female younger 12/14 and 12/13 and 13/14 and 14/15 etc. relationships which have just been criminalised and you could probably make a case that that effectively impacts men more than women. Well you could if in Canada youth were more than chattel, which legally they're not really. Canada has a really poor record of recognising youth as anything but the property of their parents. *sigh*

[joeyconnick]

Originally Posted by Nitro

Correction Connor - age of consent in Canada for anal has been 18 for some time now.

I have no idea where to find this information reliably so perhaps others could help but with the changes in the laws (which have been on the books for awhile now):

1. What is the definition of an exploitive relationship? Examples of teachers or guardians are common but what is the definition itself.

Well that's the thing, it's very vague and could be used by a willing judge to pretty much criminalise any relationship, which I'm sure was the point.

Let me see if I can dig up the wording...

Found it: http://www.justice.gc.ca/eng/dept-min/clp/faq.html

This describes the old law. I'm gonna quote it in case they pull that page given it's now out of date:

Age of Consent to Sexual Activity

What does the “age of consent” mean?

The age of consent refers to the age at which the criminal law recognizes the legal capacity of a young person to consent to sexual activity. However, all non-consensual sexual activity, regardless of age, is a sexual assault.

What kind of sexual activity does this apply to?

The age of consent laws apply to all forms of sexual activity ranging from sexual touching such as kissing to sexual intercourse.

What is Canada’s age of consent?

The age of consent is 18 years where the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency. For other sexual activity, the age of consent is 14 years.

Are there exceptions to this?

The Criminal Code provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13 year old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority or dependency.

How does Bill C-2 (Protection of children and other vulnerable persons), which was passed by Parliament in July 2005, address the age of consent?

Bill C-2 provides increased protection against exploitative sexual activity. It creates a new offence against the sexual exploitation of youth under 18 years where the relationship is exploitative of the young person, as evidenced by the nature and circumstances of the relationship, including the age of the young person, the difference in age between the youth and the other person, how the relationship evolved, and the degree of control or influence exercised over the young person.

Accordingly, this new offence provides youth with better protection against sexual exploitation by focusing on the wrongful conduct of the other person who exploits their vulnerability and not on whether they “consented” to be exploited.

How will Bill C-2 better protect young persons from sexual predators?

Bill C-2’s new offence against the sexual exploitation of youth under 18 years age recognizes that sexual predators - whether they are much older or close in age - seek to exploit the particular circumstances or vulnerabilities of young persons. Bill C-2 recognizes that the age of a person can be an indicator of vulnerability; however, Bill C-2 also recognizes that there are other indicators, including:

• age difference: is the other person much older than the young person?
• evolution of the relationship: how did the relationship develop? For example, did it develop quickly and secretly over the Internet?
• control or influence over the young person: what degree of control or influence did the other person have over the young person?

Under Bill C-2, all of these factors are relevant with the result that all youth under 18 will be better protected against those who seek to prey on their vulnerability.

Fourteen-year olds are too young to appreciate the consequences of engaging in any sexual activity, even with another person who is close in age. Why won’t the government raise the age to 16 years for non-exploitative activity?

Although there are many views on what is an appropriate age to begin to engage in sexual activity, the fact is that young persons do engage in sexual activity. The Canadian Youth, Sexual Health and HIV/AIDS Study 2003 report by the Canadian Council of Ministers of Education reported that the average age of first sexual intercourse was 14.1 years for boys and 14.5 years for girls. Educating youth to make informed choices that are right for them is better addressed through parental guidance and sexual health education than by using the Criminal Code to criminalize youth for engaging in such activity.

Has the age of consent always been 14 years?

Although some mistakenly believe that the age of consent was lowered in the 1980s, the age of consent to sexual activity has been 14 years since 1890 when it was raised from 12 years.

Isn’t Canada’s age of consent law lower than that of other countries?

Comparisons between Canada’s age of consent laws to those in other countries often do not differentiate between those that apply to “exploitative” sexual activity and those that apply to other activity. A complete comparison, including the significantly broadened protection against exploitative sexual activity provided by Bill C-2, shows that Canada’s criminal law framework of protection against the sexual exploitation and abuse of children and youth is amongst the most comprehensive anywhere.

Check the last paragraph especially.

Originally Posted by Nitro

2. Does the five year exemption also apply to anal?

Nope... in fact the anal sex provisions are very interestingly worded in the negative, essentially: anal sex in Canada is ALWAYS illegal EXCEPT when both parties are 18 or older or the parties are married.

Originally Posted by Nitro

3. What about homosexual sex that isn't anally penetrative? - in legalese that may be referred to as sodomy and by extension of that be called anal ... but clarification would be nice.

Haven't you heard? There is no homosexual sex that isn't penetrative!

But yeah, technically it's only specficially anal sex that is banned. What used to be termed "buggery" in the Canadian Criminal Code.

Originally Posted by Nitro

As for the legitimacy of raising the age of consent itself:

The only reason to raise the age of consent after the exploitive relationship provisions were made would be to ensure that the potentially exploited would have greater mobility - thereby avoid perhaps one of the most common example scenarios of exploitation ("you have to perform [sex act] or I will leave you here stranded"). Driving laws vary from province to province however and so it seems that the smarter move would be for the provinces to unify the standards and pertinent motor vehicles legislation and then go about changing age of consent!

That's an interesting point but was definitely not part of their reasoning since driving age is handled provincially whereas criminal offences are federal in Canada. Plus there's nothing to guarantee the 16 or 17 has their license or access to a vehicle.

Originally Posted by Nitro

Joey is right though - all this is, is a "feel good" populist piece of legislation to try and preserve the image of youth as innocent - a complete distortion of what the reality is.

Oh my gosh... did you read my paper? *grin*

Yes, this is all about promoting the notion of children purportedly being "innocent" and requiring "protection" to be maintained as "clean" because sex is "dirty." Plus it's completely unreflective of reality given that there are reliable stats in Canada showing that a significant proportion of teens are first having sex at 13 and 14 and sometimes younger which means this new law has just made them all criminals or has at least criminalised their partners.

(Oh look... the stats are mentioned in the Department of Justice faq I quote above!)

The really pernicious part is that it will do exactly what sexual health educators fear it will, which is give ammunition to the fundies and ultra-right wingers regarding teaching about sexual health, because people will be nervous about talking about sex with people for whom it would be illegal to be having sex--and this just made a whole swath of Canadian youth newly-minted criminals.

Originally Posted by Nitro

Perhaps this isn't all that bad. Five years is quite generous.

You can read my reply to Arneneithel to get my take on that.

[sdc91]

Originally Posted by Keiss

Johnny no its not. In Texas it's 17.

Provided that you're opposite genders. I think it's still 18 for same-sex partners, but I could be wrong.

[Psychedelic Bookmarks]

That point about not sex eductaing under 16s is a very good one. People are always scared of talking to minors about sex =/

I guess the only consolation is that most undersage sex goes on under the radar anyway. So many 15yo here in the UK have sex it's ridiculous, and nobody really gives that much of a shit.

[joeyconnick]

Originally Posted by sdc91

Provided that you're opposite genders. I think it's still 18 for same-sex partners, but I could be wrong.

Here's what wikipedia says: http://en.wikipedia.org/wiki/Ages_of..._America#Texas

Looks like it's 17 generally but if you're straight, there's a 14 to 17 "window."

Other sources list Texas as 17.

[Nitro]

Damn slow internet!! My reply just disappeared into the ether. Oh well ... here is round two:

Firstly, Joey I must thank you for the time and effort you put into responding to my queries so diligently. I can only imagine how many young Canadians are confused over the interpretation of these new laws seeing as they haven't been changed for a very long time.

Points to cover:

1. Not all sex need be anal - even for gay guys. Oral, mutual masturbation, etc. are not anally penetrative ... am I left to understand that these would then be allowed the five year exemption? (hmm this does change my understanding significantly)

2. This legislation is all about making social conservatives feel better about themselves for making a difference and not about protecting the young. The old laws protected against sex tourism, exploitive positions of power, and feigned consent given under duress ("suck on my ___ or I will leave you here stranded in the woods"). The old laws simply stated that baring any undue amount of power exploitation, a youngster was capable of making informed consent at the age of 14 - provisions made to avoid making young experimenters criminals and of course no anal (discriminatory of course).

What changes with the new laws? More focus on the objectivity of age and less on the dynamics of a relationship - utimately failing the real victims of exploitation. Give it time and precedent to make it so. Oh, and somehow our "protection" looks favourable in line with other commonwealth countries now. Less protection where it is need (by implicit design and later by explicit precedent) = better?

3. These changes in legislation do not rectify the discrimination towards anal sex - and by extension and likely intent - gay men. Somehow it seems easier to raise ages than to set them into any sense of harmony and reflect the reality of the current situation.

Conclusion:

If I understand the new changes correctly, the only thing that was more poorly written was the long overdue article reporting them in your local newspaper. But that is a separate issue. (which paper was it by the way? I wouldn't mind seeing the responses your letter gets).