The following is an opinion piece by JFCY volunteer and PLE Team Member Marsha Rampersaud.  Marsha is a criminology student at York University.  The opinions in the piece are hers, not those of JFCY.  To learn more about the current law relating to age of consent, see this past blog post and our YouTube video.

After watching the JFCY’s  YouTube video on the “AGE OF CONSENT” I was interested to learn more about this law.  I researched the history of the law and the reasons behind the last set of amendments in 2008.  What I found in my research was both surprising and informative.

‘Age of Consent’ describes the age when a person can participate in a particular activity (generally sexual activity) legally.  What this means is that if someone is below the age of consent for sexual activity, it doesn’t matter (in the eyes of the law) whether they have participated willingly or unwillingly in the sexual activity, because they are considered to lack the capacity to consent.  This has legal consequences for a young person’s sexual partner.  If one partner is below the age of consent, the other partner can be held criminally responsible for participating in sexual activity.  Age becomes the standard to determine criminal responsibility, regardless of whether the relationship was actually consensual.

Age of consent law has changed in recent years.  In June 2006, Bill C-22 proposed changes to the age of consent law.  Bill C-22 did not become law, but similar changes were proposed in Bill C-2, an omnibus bill that followed Bill C-22.  It was given royal assent in February 2008, which means that the changes it proposed are now part of the Criminal Code of Canada. 

Offences relating to sexual activity engaged in by young people date back to the late 1800s in Canada.  The definition of these crimes has been revised over the years, as society’s expectations for men and women have changed.  One part of Bill C-2 changed the age of consent law in section 150.1 of the Canadian Criminal Code, which pertains to sexual offences.  The reason behind the bill, as stated by Parliament is to better protect youth against sexual exploitation by adult predators.

Bill C-2 was significant for a number of reasons: in describing the changes to the law, the government often referred to age of protection, instead of age of consent.  Why is this important?  While consent means to give permission, which leaves power in the hands of youth, protection means to keep someone safe.  This takes the power out of the hands of youth and puts it into the hands of law enforcers (police, government etc.).  In my opinion, the result is that young people who fall within the scope of the age of protection are denied a voice regarding their sexuality.

For a number of offences relating to sexual activity by young people, the bill effectively raised the age of consent from 14 to 16.  There are some exceptions: There isa “close-in-age” exemption in the bill, which allowed 14- and 15-year olds to legally consent to sexual activity with someone who was less than 5 years older than them, and 12- and 13- year-olds to consent to sexual activity with someone less than two years older. (For more on that, watch JFCY’s YouTube video explaining these exceptions.)

Despite public protest, the bill failed to address the question of lowering the age of consent to anal intercourse, which remains at 18.  Keeping the age of consent for anal intercourse at 18 has a negative impact on gay, bisexual and queer male teenagers specifically, since the age to consent to all other forms of sexual activity remains at 16.  However, in Ontario, the Court of Appeal has found that this distinction is unconstitutional, which means that even though the law about age of consent for anal intercourse still exists, people should not be charged with it in Ontario.  Many other provinces have similar rulings, but the Canadian government still has not repealed the law, which means it is effective in provinces that don’t have these kinds of court rulings.  It also means that anyone who does not know about the court rulings, and just looks at the Criminal Code to find out about the crime, will not know that the law does not apply in Ontario. It could have a negative effect on the dignity and self-esteem of gay, bisexual and queer teenagers. Knowing all this, I can’t help but ask the question, who does this law actually protect?  Or, more appropriately, who does this law target?

In my opinion, this shift in the legislation represents a paternalistic conceptualization of childhood and sexuality.  It presumes that the state knows what is best when it comes to a young person’s sexual decisions.  But who can know more about their sexuality than the youth themselves?

Under Bill C-2, people under the age of 18 are viewed as unable to make certain decisions about sexual activity by themselves.  This does not take into account the multitude of developmental stages that exist between ages 0 – 17.  The current legal conception collapses and combines infancy, toddlers, adolescence, pre-pubescence and pubescence, etc into one discreet category.  This view denies the agency of the youth.

I believe that age of consent law should recognize and celebrate a mature young person’s ability to make decisions.  Education is important so that young people can make informed decisions of when to give consent and when to withhold consent. If it were up to me, I would endorse a law that actually empowers youth through the promotion of safer sex and education and allows youth to make informed decisions, leaving the law free to target actual perpetrators.

Thanks to JFCY Volunteer and PLE Team member Marsha Rampersaud for this opinion piece, which represents her personal views on the laws about age of consent. It does not represent the views of JFCY as a whole.