“Anal” about Canada’s Age of Consent

In a previous blog it was mentioned that the age to consent to sexual activity is 16 years old with certain restrictions and exemptions. The sexual activity being referred to does not include anal sex. A quick read of the criminal code of Canada states: "Every person who engages in an act of anal intercourse is guilty of an indictable offence" unless the two consenting individuals are married or are over 18 years old. Upon reading this, I was outraged! Why would anal sex be placed in a higher age bracket?

Upon further investigation, I found that Ontario and Quebec had ruled this law unconstitutional in two court cases. I believe this to mean that anyone who engages in anal sex who is under 18 but over 14 (the age of consent at the time of the case, but now it would be 16) and taking into consideration the close in age exemptions would be the same as any other sexual activity.

This is good news.

But this is where I get "anal" (pun intended).

The Criminal Code of Canada still has this law written.

So...does this mean that anal sex is still illegal and punishable for those unmarried and under 18? The court cases in Ontario and Quebec happened in 1995 and 1998 respectively and it sounds like even though it was ruled unconstitutional this law still technically exists!

L.L.

The issue of Mental Capacity

In the spirit of taking on an anti-oppressive lens for this blog, as discussed earlier, we decided to examine many issues in which certain groups have been over looked in the policy. The first issue we will examine is mental capacity as it relates to the issue of consent. We chose to look at mental capacity in two forms; the issue of if a person is mentally challenged, and the issue of if the person is inebriated for some reason, for example through the means of alcohol or drugs.

The Criminal Code of Canada states that all people in a “position of trust or authority” or people in a “relationship of dependency” with a person with a mental or physical disability have a responsibility to that person. Therefore, if someone in one of these relationships in any way counsels or incites, for a sexual purpose, the person with the disability to touch his or her body without their consent, then they are guilty of an offence and could face up to five years imprisonment. The concern I have here, is that there is nothing else mentioned in regards to mental capacity relating to disabilities. For example, what if a mentally disabled female was physically 19 years old, but mentally was functioning at the age of 10. Does this girl have the ability to give consent to sex? One could argue that biologically she will feel the same hormones and urges that other 19 year olds have, however if she is only functioning at the age of 10, then she may not understand the repercussions from engaging in sexual activity. There is no guidance in how to proceed with this situation in this law, and that has the potential to be incredibly harmful for the complainant.

As well, there is very little mentioned in the law about the issues of inebriation. The Code states that a defendant cannot use the defence that he/she believed the complainant consented if the defendant was intoxicated. However nothing is mentioned of the complainant’s mental awareness. For example, if a girl was drugged and date raped, then the perpetrator would be guilty of drugging her and assaulting her; however if the girl was at a party and was drunk of her own volition, there is no mention of if she would be able to give consent. One could argue that she was temporarily intoxicated and therefore could not make an educated decision of whether or not to consent to sex. Although one could also argue that she knowingly got drunk and put herself in that position and therefore willingly gave up the ability to give consent. Note I am not supporting either argument, but both would be possible outcomes from this situation.

These issues of mental capacity definitely need more addressing in the criminal code because as is, there are a lot of loop holes where certain groups of people are being ignored and therefore could be incurring greater harm than they deserve. Also, while this issue is addressed in the Criminal Code of Canada, there is no mention of mental capacity in the actual policy dealing with age of consent (aside from the mention of a person in a relationship of dependency). Therefore, this issue needs to be addressed in a clearer method, not only in the criminal code, but also in the policy itself.

-P

Who Enforces Age of Consent Policy? Anyone?

One may question as to how the Age of Consent policy is enforced, and by whom – a difficult question to answer. It was Pierre Trudeau who famously stated to reporters that "there's no place for the state in the bedrooms of the nation", adding that "what's done in private between adults doesn't concern the Criminal Code". The key word here is that of ‘adults’, where mutual consent is present in their sexual activities. Children, and youth fall within the Age of Consent policy-law to ensure their protection and safety.

The Age of Consent policy is, what’s called a ‘regulatory policy’, which exists to deter certain behaviours, in this case, nonconsensual and/or exploitative sexual practices. Sexual activity is next to impossible to monitor, as you can imagine. We haven’t got cameras in our homes – it would violate our rights to privacy, (I wouldn’t want Big Brother watching me, would you!?). This policy acts to inform the public that youth of a certain age, and within certain limits, ARE legally able to consent to sexual activities... and some are not.

Those who do not meet the standards and exceptions to the age of consent policy are penalized within the judicial system.

Examples:

** male person who had sexual intercourse with a female not his wife who was over 14 but under 16, and "of previously chaste character," (I’m assuming that means she was a virgin?) was guilty of an indictable offence, and liable to a maximum of five years’ imprisonment, whether or not he believed she was 16.

** "sexual interference" or "invitation to sexual touching" is prohibited, 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.”

Law enforcement in and of itself does not protect youth; how could it unless we are monitoring the sexual relationships between all individuals? It only allows for prosecution once youth have already been exploited. There are a number of offences that the accused can be charged of, including: Sexual Interference, Invitation to sexual touching, Sexual exploitation, Bestiality in presence of or by child, Indecent acts, or is charged with an offence under Sexual assault, Sexual assault with a weapon, threats to a third party, or causing bodily harm, or Aggravated sexual assault in respect of a complainant under the age of fourteen years [now 16 years].

Seeing as it has taken me 22 years to learn the age of consent (16), I don't think the federal government of Canada has done a good job in educating the youth. How can the policy act as a deterrent if few know about it? It only provides guidelines as to how someone will get punished. So much for protecting youth!

- A

Reasons for change to current policy

The changes to the age of consent policy (under Bill C-2) were implemented in May, 2008. These changes were brought in as part of the Conservative Party’s attempt to crunch down on violent crimes. The change in the age of consent going from 14 years of age to 16 years of age is the first time the age has been changed since 1892.

The reasoning behind this change is the government’s attempt to incorporate harsher penalties and more convictions for sexual predators, and to reduce the occurrence of the exploitation of Canada’s youth population. Unfortunately, this change in law focuses primarily on criminalizing sexual behaviour rather than focussing on protection of children. However the debate to change this age has apparently been in discussions for the past 15 years and was never implemented. Now that Canada’s age of consent is 16 years of age, it is the same as many other countries, such as Britain, Australia, and most of the United States.

One of the other reasons stated for the change in age was to address the issue of internet predators. This brings about a change in section 172.1 of the criminal code, in which people are prosecuted for attempting to lure children over the computer for sexual purposes. Due to the change in age, now anyone under the age of 16 is considered a child, and therefore anyone attempting to attract them over the internet can be convicted of a criminal offense.

-P

A Brief History

Age of consent laws have been in place for a long time in Canadian history, below is a quick timeline of the law and the major changes.

• Before 1890 only girls under the age of 12 were NOT able to consent to sexual intercourse

• But in 1886 a law was put into place where seduction of a girl between the ages of 12-16 of "previously chaste character" was an offense. This included the promise of marriage. In 1887, the age was increased to 21 when the promise of marriage was made.

• 1892 – Accused could not plead ignorance on belief of age

• 1920 – The previous law made in 1886 was changed to prohibit sexual intercourse, and 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.

• 1969 – Anal sex is added as an offence for unmarried couples under the age of 18. Before this anal sex was considered an offence no matter what age and special consideration was placed on homosexuality as an illegal activity

• 1988 – Bill C-15 added new offences: sexual interference, invitation to sexual touching and sexual exploitation. These were added in response to protect both boys and girls under 14. Sexual exploitation was added so adults in a position of trust or authority cannot have any sexual contact with a young person under the age of 18
  

It should be noted that few charges were actually laid in response to this law prior to Bill C-15 due to the language used in the law - specifically only defining sexual activity as sexual intercourse and the protection only of women of "previously chaste character" which was easily contested by the defendant. Not much has changed since Bill C-15, although a major change has occurred in the past year...

L.L.

Description of Canadian Policies Related to Sexual Consent

To start off our discussion of policies related to consensual sex, I will provide a brief definition of consent followed by descriptions of current relevant Canadian policies.

According to Canadian legislation, consent to sexual activity is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Under law, consent is not obtained where:

• the agreement is expressed by the words or conduct of a person other than the complainant
• the complainant is incapable of consenting to the activity
• the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
• the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, or
• the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity

On May 1, 2008, the age of consent in Canada was raised from 14 to 16 years of age as part of the Tackling Violent Crime Act.

The act of touching any person under the age of 16 years for a sexual purpose is considered a crime under Section 151 of the Criminal Code of Canada. Section 153 extends to prohibit the sexual touching of a person under 18 by a person in three circumstances: if he or she is in a "position of trust or authority" towards the youth, if the youth is in a "relationship of dependency" with him or her, or if the relationship is "exploitative".

For those under the age of 16, two factors determine where consent to sexual activity can be obtained lawfully between two individuals: age and form of sexual activity.

For example, an individual at 12 or 13 years of age can consent to sexual activity with an individual no more than 2 years older than them. A youth of 14 or 15 years of age can consent to sexual activity with an individual no more than 5 years older, or to whom they are married. Neither of these exceptions applies under any of the 3 circumstances described in Section 153 of the Criminal Code.

Curiously, Section 159 of the criminal code sets the age of consent for anal intercourse at 18, with the only exception being if the two partners are married. This means that no unmarried persons under the age of 18 can legally consent to anal intercourse. I should also note that the section refers to anal intercourse between “husband and wife”, and therefore is not inclusive of individuals in same-sex marriages. Furthermore, the provinces of Ontario (1995) and Quebec (1998) have determined this section of the criminal code to be unconstitutional.

- L. T.

Issue: Pregnancy and STIs

One of the primary issues when considering consensual sex in young people these days is the issue of sexual consequences. Some of these consequences are those of Sexually Transmitted Infections (STIs) and unplanned pregnancies. Before getting into the issue of age of consent, I thought it was appropriate to examine how these ramifications are changing in the Canadian teenage demographic.

According to an article in the United States by Walcott, Meyers and Landau in 2008, the younger an adolescent is when they start engaging in sex, the greater their of risk of contracting an STI. Presumably this is due to the fact that the younger a person starts having sex, the more sexual partners they will have, therefore increasing their risk of getting an STI or HIV. This risk is increased by the fact that in the US, adolescents who participate in sexual activity before the age of 14 have the lowest levels of contraceptive usage.

However, when examining the Canadian statistics from an article in the Canadian Journal of Human Sexuality from 2004, we see that sex at an early age is not necessarily a recipe for disaster. According to research, adolescents in 2002 were less likely to face the negative sexual health outcomes than teens from previous generations faced. Younger adolescents (grade nine) were more likely to use a condom than the older teens (grade 11), who were more likely to use oral contraceptives, primarily the birth control pill. While the pill does help protect people against the risk of pregnancy, it does nothing to protect against the risk of STIs.

The pill is also being said to be the primary reason that unplanned pregnancies have been declining in Canada. According to the 2004 article, the teenage pregnancy rate has been going down, while the abortion rate has stayed the same. Basically this means that while there are fewer teen pregnancies, abortion is being chosen as the solution more frequently.

After examining these two issues, it is reassuring to see that for the most part young people are starting to take responsibility for their actions and trying to be proactive in preventing unplanned pregnancies and protection against STIs. Education on these issues in schools, as well as at home, seems to be making an impact on these adolescents and they are making safe decisions. While there is still a long way to go in the eradication of STIs and decline in unplanned pregnancies, adolescents today seem to be well on their way, and equipped with the knowledge needed to achieve this goal.

P.