Rather than post one of my regular blogs, I am posting information on the age of consent. I have run into this numerous times lately in discussion with friends in my cultural background, where situations were handled inappropriately. Upon discovering this lack of awareness, I felt it might be helpful for my readers, to determine how these situations should be handled within the confines of the law.
The link for the following information is http://www.justice.gc.ca/eng/dept-min/clp/faq.html. In cases where teenagers are being sexually abused by school teachers, or others in a position of authority or trust, it is sexual assault. These cases need to be reported even if they appear to be mutual consent. It is critical to be aware of the legal implications of not reporting such activity. I will post on this in the upcoming posts.
Age of Consent to Sexual Activity
Frequently Asked Questions
What does the “age of consent” or “age of protection” mean?
The age of consent, also known as the “age of protection”, refers to the age at which a young person can legally consent to sexual activity. All sexual activity without consent, regardless of age, is a criminal offence.
To what kind of sexual activity does this apply?
The age of consent laws apply to all forms of sexual activity, ranging from sexual touching (e.g., kissing) to sexual intercourse.
What is Canada’s age of consent?
The age of consent for sexual activity is 16 years. It was raised from 14 years on May 1, 2008 by the Tackling Violent Crime Act.
However, the age of consent is 18 years where the sexual activity “exploits” the young person — when it involves prostitution, pornography or occurs in a relationship of authority, trust or dependency (e.g., with a teacher, coach or babysitter). Sexual activity can also be considered exploitative based on the nature and circumstances of the relationship, e.g., the young person’s age, the age difference between the young person and their partner, how the relationship developed (quickly, secretly, or over the Internet) and how the partner may have controlled or influenced the young person.
Are there any exceptions to this?
The Criminal Code provides “close in age” or “peer group” exceptions.
For example, a 14 or 15 year old can consent to sexual activity with a partner as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. This means that if the partner is 5 years or older than the 14 or 15 year old, any sexual activity will be considered a criminal offence unless it occurs after they are married to each other (in accordance with the “solemnization” of marriage requirements that are established in each province and territory, governing how and when a marriage can be performed, including the minimum age at which someone may marry).
There is also a “close-in-age” exception for 12 and 13 year olds: a 12 or 13 year old can consent to sexual activity with another young person who is less than two years olderand with whom there is no relationship of trust, authority or dependency or other exploitation of the young person.
Are 16 and 17 year olds also protected against sexual exploitation?
The Criminal Code protects 16 and 17 year olds against sexual exploitation, where the sexual activity occurs within a relationship of trust, authority, dependency or where there is other exploitation. Whether a relationship is considered to be exploiting the 16 or 17 year old will depend upon the nature and circumstances of the relationship, e.g., the age of the young person, the age difference between the young person and their partner, how the relationship developed and how the partner may have controlled or influenced the young person. As well, 16 and 17 year olds cannot consent to sexual activity that involves prostitution or pornography.
What are the actual Criminal Code offences against child sexual abuse and exploitation?
The Criminal Code protects all Canadians, including children, against sexual abuse and exploitation. For example, the Criminal Code contains offences that protect everyone against all forms of sexual assault (section 271); sexual assault with a weapon, threats to a third party or causing bodily harm (section 272); and aggravated sexual assault (section 273), voyeurism (section 162), obscenity (section 163) and trafficking in persons (section 279.01).
Children are also protected by child-specific offences in the Criminal Code. These offences include the following:
- Sexual Interference (section 151) – no one can touch any part of the body of a child under the age of 16 for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
- Invitation to Sexual Touching (section 152) – no one can invite a child under the age of 16 to touch himself/herself or them for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
- Sexual Exploitation (section 153) – no one in a position of trust or authority over a 16 or 17 year old (for example, a teacher, religious leader, baby-sitter or doctor) or upon whom the young person is dependent, can touch any part of the body of the young person for a sexual purpose or invite that young person to touch himself/herself or them for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
- Incest (section 155) – no one may have sexual intercourse with their parent, child, brother, sister, grandparent or grandchild. The penalty for this offence is a maximum of 14 years imprisonment;
- Child Pornography (section 163.1) – no one may make, distribute, transmit, make available, access, sell, advertise, export/import or possess child pornography. Child pornography is broadly defined and includes materials that show someone engaged in explicit sexual activity who is, or seems to be, under the age of 18 years; or show a young person’s sexual organ or anal region for a sexual purpose. Child pornography also includes written and audio material that encourages others to commit a sexual offence against a child, or is primarily a description of unlawful sexual activity with a child that is intended for a sexual purpose. The penalties for these offences are mandatory minimum periods of imprisonment and vary up to a maximum of either 5 or 10 years;
- Luring a Child (section 172.1) – no person may use a computer system, such as the Internet, to communicate with a young person for the purpose of facilitating the commission of a sexual or abduction offence against that young person. This offence is sometimes called “Internet luring”. The penalty for this offence is a maximum of 10 years imprisonment;
- Exposure (subsection 173(2)) – no one may expose their genital organs for a sexual purpose to a young person under the age of 16 years. The penalty for this offence is a maximum of 6 months imprisonment;
- Procuring (sections 170, 171, 212(2), 212(2.1) and 212(4) – it is against the law for parents and guardians to procure their child under the age of 18 years to engage in illegal sexual activity. It is also against the law for anyone to offer or obtain the sexual services of a young person under the age of 18 years (i.e., prostitution). The penalties for these offences are mandatory minimum periods of imprisonment and vary up to a maximum of 14 years imprisonment;
- Bestiality (section 160) – it is against the law for anyone to engage in sexual activity with an animal, including making a child do this or doing this in front of a child. The penalties for these offences vary up to a maximum of 10 years imprisonment; and,
- Child Sex Tourism (subsections 7(4.1) – 7(4.3) – it is against the law for a Canadian to travel outside of Canada and engage in any sexual activity with a young person that is against the law in Canada. If the Canadian is not found guilty of committing such a sexual offence in the country where it occurred, the Canadian could be convicted in Canada and would face the same penalty as if that offence had occurred in Canada.
In addition to these criminal laws against child sexual abuse and exploitation, each province and territory has its own laws to protect children against abuse, exploitation and neglect.
Taken from http://www.justice.gc.ca/eng/dept-min/clp/faq.html.
© Trudy Metzger
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