EGALE’s submission on Age of Consent to the Department of Justice Canada

March 30, 2000

Child Victim Consultation
Family, Children, and Youth Section
Department of Justice Canada
284 Wellington Street
Ottawa, ON
K1A 0H8

This submission responds to your consultation paper titled “Child Victims and the Criminal Justice System,” dated November 1999 (“the Justice Paper”), which raises the questions:

Should the general age of consent to sexual activity be changed?

If so, what would be an appropriate age?

The acronym "EGALE" stands for Equality for Gays and Lesbians Everywhere. EGALE is a federally-incorporated not-for-profit organization that advances equality and justice for lesbians, gays, bisexuals and transgendered (“LGBT”) people and their families across Canada. EGALE was founded in 1986. It is Canada’s only national equality rights organization advocating for LGBT people and their families and has members in every province and territory of Canada. EGALE’s advocacy includes a commitment to safeguarding constitutional rights to freedom from discrimination and freedom of expression.

EGALE’s activities include legal research and consultation, interventions in test case litigation, public education and advocacy before governmental bodies dealing with important issues of concern to LGBT people.

EGALE’s submission is designed to address areas of inequality between LGBT youth and heterosexual youth, and to raise a number of policy concerns about proposals to increase the age of consent. In talking about “youth,” we generally refer to persons aged 14 or 15 years old, since they are the people who would be unable to give legal consent to those who are not “close in age” should the age of consent be raised.

While EGALE supports the goal of protecting vulnerable persons from sexual abuse, we are concerned about the efficacy of raising the age of consent. In addition, EGALE has serious concerns about adverse impacts, including the impact on the goals of fostering autonomy, empowering youth and providing them with the tools to make informed decisions.

The setting of an absolute age of consent is an inevitably imperfect line drawing exercise. No matter where the line is drawn, some otherwise healthy sexual activity will be criminalized and some harmful activity will be permitted. Both effects are of concern, and both should be considered.

In preparing our submissions, EGALE has considered informal feedback from a questionnaire (see Appendix 1) which we circulated to youth, youth workers and a number of lesbian, gay, bisexual and transgendered (“LGBT”) persons across Canada. Over 100 completed questionnaires were received. This was not intended to be a scientific or comprehensive study, but the results have been quite helpful in highlighting issues of concern.

We wish to point out that the Justice Paper contains only a very short discussion. Only two particular situations were raised, 14 and 15 year old girls being lured into prostitution and sexual tourism from jurisdictions with higher ages of consent. These are, of course, important concerns, but ones that can be addressed in a far less sweeping and potentially harmful way. The Justice Paper contains no evidence of any serious and comprehensive study of the implications of simply raising the age of consent.

We have identified below several of our concerns:

CONCERN #1: EQUALITY OF ENFORCEMENT

EGALE has two concerns regarding current enforcement. First, is there unequal enforcement of the law, i.e. is gay and lesbian sex disproportionately targeted? When the difference in age is small—just beyond the two year window—and no harm is evident, the law may not be enforced, for good reason. EGALE’s concern is that a perception of harm may be more likely when the persons involved are of the same sex, just because of the stigma attached to homosexuality. Parents may be more likely to be unhappy about their children having sex with someone of the same sex than someone of the opposite sex, and far more likely to call the police. And police may be more likely to be lenient when they view sex as merely “sowing wild oats” or “natural and healthy exploration” rather than “corrupting morals.”

The second concern is whether enforcement is targeted at those most likely to cause harm, i.e. pimps and others whose goals and methods are inherently abusive. Statistics on the differences in ages and the circumstances of the participants are needed to see how the law is used. Why were charges laid, how was sex initiated, by whom was sex initiated, what was the nature of the sexual relationship, did the young person want the older person charged, what was the nature of the power imbalance, etc.

Without the above information, EGALE is not comfortable that the law will be used for protection of youth rather than as a tool by those harbouring prejudice against our communities.

CONCERN #2: EFFECTIVENESS IN PREVENTING HARM

As mentioned above, setting the age of consent is a line drawing exercise in which the goal should be to minimize harmful sex that could be prevented while avoiding the criminalization of healthy sex. EGALE would like to see evidence of the harm prevented from raising the age of consent. Has this been done in other jurisdictions, and if so, what was the impact on preventing harm?

A great many 14 and 15 year olds today are having sex. It is reasonable to believe that many of them are quite capable of giving or withholding consent. Thus increasing the age from 14 to 16 will outlaw some sexual activity that is not harmful. The cost of such a constraint on sexual behaviour is not trivial. While youth must be protected, as a starting point society must accept that they are sexual beings. Denial of this fact may do more harm than good.

CONCERN #3: INABILITY TO DATE PEERS

It is recognized that youth are more likely to have balanced and equal relationships when dating their peers. However, the ability to date one’s peers is greatly reduced for LGBT youth compared to heterosexual youth.

Unfortunately, many LGBT youth do not feel able to be open about their sexuality. Many schools are notoriously homophobic environments. One need look no further than the recent suicide of Hamed Nastoh, a 14 year old Surrey boy victimized by homophobic teasing, to realize that for a youth to be open about their sexuality in high school may involve real risks. Even in seemingly gay-positive environments, homophobia is often internalized, and youth may feel the need to keep the closet door firmly shut without ever feeling it’s safe to look around and see if it’s okay to come out.

The result of society’s pervasive homophobia is that heterosexual youth are likely to date those in their class—LGBT youth are not.

LGBT youth groups provide vital support to young people struggling with their sexuality. Many LGBT youth come out at LGBT youth groups or other places where LGBT people meet. Even at a youth group they are likely to encounter people who are more than two years older than them, beyond the current “close-in-age” exception. To criminalize the primarily healthy sexual relations that ensue seems perverse, furthering the marginalization of LGBT youth. It is also possible that the youth groups themselves will fear being open to those under 16, causing them to make rules to exclude them. The harm done in cutting off access to this vital resource would be substantial.

Whatever the age of consent is, the Government may wish to consider increasing the window for the “close-in-age” exception.

CONCERN #4: EMPOWERING YOUTH

EGALE believes that it is a good thing to increase a person’s ability to consent, and to maximise young people’s confidence and ability to withhold consent. Doing so empowers youth, increases their autonomy and affirms their sexuality and sense of self.

If this government is serious about protecting youth, then regardless of whether the age of consent is raised, it will empower youth by giving them the tools they need to make informed choices. We should help youth to develop confidence, communication skills, to negotiate their sexual lives and prevent abuses of power. Such youth are not only more able to make informed choices about whether to have sex, but, if they do choose to have sex, they are more likely to be safe.

Education regarding safe sex must be supported, to minimize health risks for those youth that do engage in sexual activity. In addition, sex education should include real life information about how to decide whether, when and how to have sex, as well as how to be assertive in standing by those choices.

EGALE is concerned that raising the age of consent will have the opposite impact on education, and that school boards will discourage discussions of sexual relations which the law deems criminal. As the Ontario Court of Appeal recognized in the context of the higher age of consent for anal intercourse in R v. M (C), (1995) 23 O.R. (3d) 629, per Abella J. at 638:

“Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a provision criminalizing consensual anal intercourse for adolescents is that the health education they should be receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health risks associated with that behaviour, contribute to the harm it seeks to reduce.”

CONCERN #5: DRIVING SEX UNDERGROUND

Many respondents to our questionnaire raised this concern, especially professionals that work with LGBT youth. Young people who have questions about their relationships are less likely to talk with parents and counsellors if they risk criminal charges against themselves (if they are the older person) or their partner. Service providers may also be reluctant to provide services to those under the age of consent. Confidentiality concerns are heightened. Access to education may be reduced. Access to health services, such as prevention and treatment of AIDS and other sexually transmitted diseases may be compromised. Unsafe sex is more likely. Reporting of sexual diseases may decrease.

Some sex may be driven underground even though it is not illegal. This is because of a lack of awareness that the age of consent does not, in fact, criminalize sexual activity among people who are “close-in-age,” regardless of their age. This fact should be publicized, with particular emphasis on reaching educators, youth and youth workers.

EGALE is particularly concerned about the impact on street-involved youth. Such an impact merits its own focus. Agencies dealing with youth who are homeless or involved in prostitution should be consulted directly.

CONCERN #6: UNEQUAL AGES OF CONSENT

The law currently discriminates in that there is a separate provision criminalizing anal sex, which sets the age of consent for anal sex higher than that for other forms of sex. This has been recognized as unconstitutional by both the Ontario Court of Appeal and the Quebec Court of Appeal. Any change in the Criminal Code must repeal section 159, so that anal sex is treated the same as other forms of sexual activity.

CONCERN #7: HEARING YOUTH VOICES

It is not clear that any particular effort has been made in the current consultation to ensure adequate representation from youth themselves—the people most directly affected by any change in the legislation. EGALE would encourage the Government to sponsor broad public consultation, ensuring input from both heterosexual youth and lesbian, gay, bisexual and transgendered youth, as well as from those who work with youth.

CONCLUSION

The federal government must study and resolve the above concerns, to ensure that LGBT youth and all youth are both protected against abuse and empowered to explore their sexuality. When this is done, EGALE will be pleased to make further submissions. In our view, it would not be responsible for government to complete any review of the age of consent before carrying out substantial research-based analysis of the impact of criminal age of consent provisions on youth with particular regard to the concerns raised in these submissions.

Egale Canada ©2010

Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada