The Perils of Teen Sex
Today, the Conservative Government tabled legislation in the House of Commons to amend the Criminal Code and raise the age of sexual consent from 14 to 16 years of age. This is not a social issue which attracts my attention very often, but it raises interesting legal issues.
Purportedly, the justification for this amendment is the fear that children are being sexually exploited by adults through the magic of internet communications. I am not suggesting that this form of sexual exploitation is a good thing. However, I practice law in the Ontario Courts and no police officer, Crown Attorney, judge, or defence lawyer has ever expressed concern to me that an epidemic of internet-based sex with children is underway in Canada. I have seen a fair bit of comment about this on the television news, but I am also aware that the television news often displays a disproportionate interest in things which are shocking and attention-grabbing as opposed to things which are mundane and common.
I suspect that internet sexual predators are like serial killers -- if you encounter one he will ruin your day, but chances are you will never encounter one.
That said, a lot of teenagers are having sex. In Canada, teenagers are citizens with all of the usual rights that other people have. We put age restrictions on the franchise, consumption of alcohol and military service, but in general we do not treat teenagers differently than other people merely because they are teenagers. If a person who is 15 years old wishes to have sexual relations with a person who is older, what business does the Government have criminalizing this behaviour?
The gist of this argument has been observed in the draft legislation, in that it makes an exception for people who are less than five years older than the 14 or 15-year-old with whom they are having sexual relations. Therefore, an 18-year-old can have sex with a 15-year-old, but a 21-year-old will be prosecuted for having sex with a 15-year-old. I can understand this logic. After all, there has to be an arbitrary boundary line somewhere, so the five year age span is where the line is drawn.
However, what about the rights of the 14 and 15-year-olds? For more than a century, 14-year-olds have been able to have sexual relations with whomever they wanted provided that their partners were 14 or older, not close relatives, and not in a position of authority over them. It is conceivable that there are couples out there who until now have been doing nothing illegal but could now face prosecution. The prosecution would be in the criminal courts. If convicted, the offender will have a criminal record for a sexual offence. This would likely prevent him from ever passing muster in a police record check. Consequently, he can rule out joining a profession or crossing the border into the United States and their DNA will be entered into a national databank. Surely there is a better way to regulate human sexual activity than to prosecute them with a criminal offence.
Here is an idea - why not treat this as a child welfare issue? Under the Child and Family Services Act, the Ontario Courts often intervene in the lives of families where abuse or neglect is threatening the health and safety of children. Similar legislation exists in all Canadian jurisdictions. If a 24-year-old is having sexual relations with a 14-year-old, that is very unsettling and (to me, frankly) grotesque, but surely a Judge could examine the case on its merits on the application of the Children's Aid Society or the 14-year-old's parents. In appropriate cases, the Judge could prohibit the relationship from continuing. If nothing is wrong, the Judge could dismiss the application.
Of course, the Child and Family Services Act is provincial legislation, which is ultra vires the legislative competence of the Government of Canada. As a result, Vic Toews and Stephen Harper could properly get involved in this sort of initiative. They would miss the opportunity to win points among socially-conservative voters. One would hate to think that this is all just politics, but, of course, it is all just politics.
Purportedly, the justification for this amendment is the fear that children are being sexually exploited by adults through the magic of internet communications. I am not suggesting that this form of sexual exploitation is a good thing. However, I practice law in the Ontario Courts and no police officer, Crown Attorney, judge, or defence lawyer has ever expressed concern to me that an epidemic of internet-based sex with children is underway in Canada. I have seen a fair bit of comment about this on the television news, but I am also aware that the television news often displays a disproportionate interest in things which are shocking and attention-grabbing as opposed to things which are mundane and common.
I suspect that internet sexual predators are like serial killers -- if you encounter one he will ruin your day, but chances are you will never encounter one.
That said, a lot of teenagers are having sex. In Canada, teenagers are citizens with all of the usual rights that other people have. We put age restrictions on the franchise, consumption of alcohol and military service, but in general we do not treat teenagers differently than other people merely because they are teenagers. If a person who is 15 years old wishes to have sexual relations with a person who is older, what business does the Government have criminalizing this behaviour?
The gist of this argument has been observed in the draft legislation, in that it makes an exception for people who are less than five years older than the 14 or 15-year-old with whom they are having sexual relations. Therefore, an 18-year-old can have sex with a 15-year-old, but a 21-year-old will be prosecuted for having sex with a 15-year-old. I can understand this logic. After all, there has to be an arbitrary boundary line somewhere, so the five year age span is where the line is drawn.
However, what about the rights of the 14 and 15-year-olds? For more than a century, 14-year-olds have been able to have sexual relations with whomever they wanted provided that their partners were 14 or older, not close relatives, and not in a position of authority over them. It is conceivable that there are couples out there who until now have been doing nothing illegal but could now face prosecution. The prosecution would be in the criminal courts. If convicted, the offender will have a criminal record for a sexual offence. This would likely prevent him from ever passing muster in a police record check. Consequently, he can rule out joining a profession or crossing the border into the United States and their DNA will be entered into a national databank. Surely there is a better way to regulate human sexual activity than to prosecute them with a criminal offence.
Here is an idea - why not treat this as a child welfare issue? Under the Child and Family Services Act, the Ontario Courts often intervene in the lives of families where abuse or neglect is threatening the health and safety of children. Similar legislation exists in all Canadian jurisdictions. If a 24-year-old is having sexual relations with a 14-year-old, that is very unsettling and (to me, frankly) grotesque, but surely a Judge could examine the case on its merits on the application of the Children's Aid Society or the 14-year-old's parents. In appropriate cases, the Judge could prohibit the relationship from continuing. If nothing is wrong, the Judge could dismiss the application.
Of course, the Child and Family Services Act is provincial legislation, which is ultra vires the legislative competence of the Government of Canada. As a result, Vic Toews and Stephen Harper could properly get involved in this sort of initiative. They would miss the opportunity to win points among socially-conservative voters. One would hate to think that this is all just politics, but, of course, it is all just politics.
posted by Rob Stewart | 1:33 PM
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