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Home » Blog This

April 19, 2007

A Little Matter of Consent

Posted by Ariel Troster at 04:38 PM ET

Well, it looks like the federal justice committee has just cleared the way for the passage of Bill C-22, which will raise the age of sexual consent from 14 to 16. The Conservatives are calling it the "age of protection," and are falling all over themselves, claiming to be protecting children from exploitation.

I've made my opinions on this issue known in Capital Xtra, and for a short while, I was Egale Canada's spokesperson on the issue.

In a nutshell, this law is bad news because it will only serve to repress young people's sexuality, put them in more danger of contracting STIs while also giving a nod to the religious right who would prefer if parents could keep their teenagers locked up until they turn 21. The law is also as superfluous as it is dangerous. Canada already has strict laws that criminalize any sexual relationship with a young person when there is any evidence of a power imbalance or any form of abuse or exploitation.

To add icing to the cake, the justice committee has also held up one of the last vestiges of Canada's anti-sodomy laws, by refusing to strike down section 159 of the Criminal Code, which criminalizes anal sex unless it's being performed by two people over the age of 18 (unless they're married).

Yep, you heard me right. There is a separate age of consent for anal sex. And it's still on the books.

So in tribute to to all of the young people from the Age of Consent coalition that faced insurmountable odds when they presented in front of the justice committee, I offer you this video from Vancouver's The Wet Spots (WARNING: not suitable for work):

Cross-posted to Dykes Against Harper

More entries on: Sexual Health

Previous: joy sighting in hogtown
Next: Happy Earth Day, what Stephen is reading and a salute to the student journalists of Virginia Tech

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Reader comments:

ariel,

I don't pretend to have done nearly enough reading on this issue to know what I'm talking about, but I'm intrigued by the point you make about how a higher age of consent 'criminalizes' teen sex, which seems like a surreal side benefit for ultra-conservative parents. If I understand it correctly, the change in law is intended to address predatory adult/teen sexual contact, rather than consensual teen sex. I would imagine, even with the age at 14, we've always been looking at an awful lot of 'criminal' consensual sexual activity between the young. Certainly in my home town.

But what has been legal practice on this point in Canada? Have we actually dealt with the spectacle of the parents of one 13 year old dragging the other 13 year-old into court for criminal prosecution after discovering a clutch and grab in the woodshed?

If not, then will a rise to 16 make that much of a difference to teen sex lives, other than stigmatization? (and really, as our society advances, are we actually looking at more or less sexual stigma, overall? -- viewed through the lens of sexual openness and freedom, my childhood looks like Czechoslovakia circa 1969) I'm not asking combatively; I'm just not sure.

To me, the most fascinating point is the separate age of consent for anal sex. What a strange anachronism to still be dealing with. And as you allude to in your Capital Xtra column, if marriage is the test for disregarding that age of consent, then this law combined with a traditional marriage act would effectively criminalize the act ONLY for homosexual couples.

What a tangled web.

Posted by: john_d at April 24, 2007 09:47 AM

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Thanks John!

Yes, it is a tangled web, and I don't pretend to know the answers to all of your questions. One of the concerns brought up by sexual health educators is the fact that even with a close in age exemption, a law like this would have a chill effect on young people -- for no good reason. If all they hear is that what they're doing is illegal, they are less likely to speak truthfully about their experiences to peer councillors and authority figures.

Also, if the law already criminalizes any sexual relationship between and older person and a young person where there is any sort of power dynamic (aka -- teacher student) or coercion involved, why criminalize consensual activity?

The age of consent has been set at 14 since the 1800s -- why make a change now? Is this really a move to protect children, or is it just a nod to the religious right?

I know it makes us feel icky to think about 14 year olds having sex, but the truth is, they're doing it anyway. And some of them are choosing to do it with older people. In cases where they are freely choosing to engage in a sexual relationship with another person, should the relationship be criminalized? I think not. Young people have very little agency as it is -- the least we can do is respect the decisions they make about their own bodies and sexualities.

And yes, the anal sex law is the most upsetting and bewildering part of this whole discussion. It's a throwback to the old buggery laws, and no one wants to bother addressing this issue, because then they would actually have to utter the words "anal intercourse" in the House of Commons. Imagine.

Posted by: Ariel at April 24, 2007 04:02 PM

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I know I'm going to sound like the resident Victorian with this comment, but I will risk it. I'm wondering a couple of things. First, I wonder if what young people learn about sex and sexuality comes from law, or from home and peers. I'm sure there were all kinds of laws on the books that I never heard of as a teen, but I certainly got messages from my parents. Those messages, implicit and explicit, were powerful. I am not sure if this kind of change will bring about a "chilling effect." Isn't there a more general, social chilling effect around sex, regardless of the law?

I also wonder if we can really use the word "consent" when talking about a 14 year old having sex (particularly in the case of sex with older people). I don't disagree that we should respect the decisions that teens make about their bodies, but I also think that a lot of sex happens without young people really knowing what they are getting into.

I guess what I'm struggling with is the ways in which laws are used in place of good sex education programs. I don't think a law is a good substitute for a frank conversation. I'd have more confidence in a 14-year-old's decision about sex if I thought that we were doing a better job communicating with them about it.

Posted by: pinkmartini at April 24, 2007 06:24 PM

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Also a very good point pinkmartini (great screen name, by the way).

Sex ed programs have been on the decline, and it's all part of the same anti-sex agenda that brought you the raise in the age of consent. I absolutely agree with you that this kind of frank discussion is lacking, and it belongs in our schools. Kids need to learn about how to say no -- and how to say yes -- in a way that respects their bodies and their individual comfort levels.

In the day and age where young folks see HIV/AIDS as a treatable illness, we need sex ed more now than ever.

Posted by: Ariel at April 25, 2007 10:08 AM

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I feel my writing nerves being scratched. This is a fascinating topic. I guess I'm wondering, along the lines of our resident Victorian, if any age of consent law actually registers with the kids doing the consenting.

In California, all ages of consent (boy/girl, boy/boy, girl/girl) are set at 18, with a three year close-in-age qualification. My guess is that many in the 13-17 year old CA population are breaking the law -- right at this very moment (if television is a reliable source for information) -- and are completely ignorant that they are doing so. Furthermore, the idea that a sexual relationship between a 17 year-old and a 20 year-old might be illegal in California (depending on birth dates) seems just flat-out impossible, considering the 17 year old has, statistically, been having sex for 3 years already.

By the way, the site where I got my initial California age of consent information has a Viagra ad banner up at the top above the criminal code provisions, and a link to "cool teen sites." Turns out my google search for "age of consent laws" brought me to a site dedicated to educating old fellas on how to have 'legal' sex with young folks. My own Victorian upbringing went into shock.

Posted by: john_d at April 25, 2007 01:10 PM

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john,

I think you've articulated my central Victorian point. Age of consent laws seem irrelevant to me in current social spaces. My California upbringing provides good evidence: I had no idea of the age of consent in CA until your post. I'm clearly both a good Californian, and a good Victorian.

Posted by: pinkmartini at April 25, 2007 02:09 PM

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Aha! So why have Victorian-era age of consent laws in the first place if teens are having sex anyway?

These are very good questions ... I think it's important to keep remembering that in Canada, the law already harshly punishes anyone who exploits or lures or assaults a young person.

So who would this law really punish?

Posted by: Ariel at April 25, 2007 03:22 PM

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Ah Ariel, you bring back fond memories of when I was a sophisticated young teenager, hanging out with my friends downtown, drinking and (occasionally) lying about my age, usually while wearing too much makeup ... For the most part, good times because, fortunately, nothing really bad happened to me. Now I am so, so old (though not as old as John). I am very troubled by the hyper-sexualization of girls and boys (think twinks), which is not the same thing as being anti-sex, btw.

R. v. Quintanilla is an example of why I am troubled. This case involved 12 and 15 year old girls, a 27 year old man and a lot of alcohol, which he supplied. It broke my heart to read about what happened to these "bad" girls, particularly since it was one of the first cases to consider the Supreme Court of Canada's reasons in R. v. Ewanchuk, the no-means-no-even-if-you-aren't-wearing-petticoats case that was decided in 1999. With respect to the 12 year old being legally too young to consent to having sex with the man, the judge believed that the accused, Manuel Vincent Quintanilla, took all reasonable steps to ascertain that the complainant was old enough to consent as set out in subsection 150.1(4) of the Criminal Code.

These days, what does 14 years old look like?

The Criminal Code provides that a person engaging another who is more than two years younger and under 14 in a sexual encounter is guilty of a crime, notwithstanding that the encounter may be consensual. The only defence is a belief that the younger person is 14 years of age or older. Therefore, the activities of two thirteen year olds having consensual sex are not criminalized under the current Criminal Code nor would they be if the age of consent was raised to 16.

I highly recommend this Parliamentary report about Bill C-22; It is super informative about the law and the policy debate over the age of consent issue. For example, with respect to your assumptions about Victorians, in Canada only girls under 12 were legally unable to consent to sexual intercourse until 1890, when the age limit was raised to 14, where it has remained ever since. It also sets out the ages of consent in different countries. For example, the states in Australia mostly have 16 as their age of consent, as do Belgium, Hong Kong, Finland (although a "close in age" provision applies), the Netherlands, New Zealand, Norway, Russia, Singapore, Ukraine, and the United Kingdom.

As for anal sex, given that the law has been struck down as unconstitutional by the Courts of Appeal in Ontario and Quebec, I suspect that the risk of being charged (let alone convicted) is very very low. The pre-Morgentaler abortion law is still on the books too, but if you are pro-choice I doubt you care.

And Manuel Vincent Quintanilla, if you are out there googling yourself: I think you're a fucking creep.

Posted by: lynda at April 26, 2007 04:37 AM

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