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10 min

Age of consent

A special report

LETTERS HOME. "Dear Mom and Dad, Miguel and I like to put our dicks into each other's bums and mouths. Love, Gary." Credit: (Gary Ostrom)

Gay groups prepare for battle
Age of consent increase will be opposed

Gay groups are gearing up to fight any attempt by the Harper Conservatives to raise the age of consent from the current 14.

Just days after being appointed justice minister, Vic Toews said he planned to raise the age to 16. He didn’t say whether he would lower the age of anal consent from 18 — the age specified in the Criminal Code but overturned by courts in three provinces.

Longtime gay-rights advocates are gearing up for a battle.

The Coalition For Lesbian And Gay Rights In Ontario (CLGRO) will lead the charge. It will anchor its position on the same arguments it used to oppose Bill C-2, a bill it savaged for restricting the rights of gay youth to control their own sexual choices.

CLGRO expects to make written and in-person submissions to Parliament if Toews persists. And they’re gearing up by hiring a political action co-ordinator to organize and lobby in this politically more conservative time, says member Tom Warner. “We’ll look for the opportunities to restate our opposition to increasing the age of consent and for attacking the faulty rationale for it. We’ll develop an action plan.”

There’s lots already in the Criminal Code to deal with attempts to coerce teens, he says. A tougher bill won’t stop sexual exploitation; “better education and respecting the choices of youth” will, he says.

The Sex Laws Committee is also preparing for a battle. It’s a Toronto-based group of queer activists dedicated to eliminating legal restrictions on consensual sexuality such as the bawdyhouse laws. Committee members are hoping that Harper overrules Toews and keeps his pledge to focus on only five issues for this Parliamentary session.

In any event, they’re planning an outreach to gay youth to find out their needs around an age of consent.

“We’re going to talk to different youth committees to find out what they think,” says member Richard Hudler.

And the Sex Laws Committee is preparing a position paper which, like CLGRO’s, will be based on its recent unsuccessful opposition to Bill C-2.

“Speaking for myself,” says Hudler, “their wanting to raise it is just admitting there’s not enough sex education in schools, if [teens] are not ready at 14 when it’s been the law since the 1800s.”

Age 14 is a “reasonable age” of consent, says Hudler. The point is the law should respect the rights of youth to make their own choices. “It’s about both the right to say yes and the right to say no.”

And, he notes, the whole discussion is bogus. “Much of the harm that comes to children happens in the home. This is a distraction from that.”

Warner isn’t exactly over-confident about the chances of stopping a bill in its tracks. With the NDP and Liberals apparently folding on the issue, Warner suspects “we’re fighting a real uphill battle.” But it is winnable, he says, in a minority Parliament if our community gets organized and motivates the other parties.

And where’s Egale Canada on the issue, after repeatedly dropping the ball in opposing Bill C-2? So far, they don’t have a formal position, though policy head Laurie Arron was recently quoted as saying any consent bill must equalize the anal age of consent with that for other sex acts.

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Liberals and NDP duck for cover
Gays and allies will have to lead fight

Don’t expect the federal Liberals or NDP to lead the battle against raising the age of sexual consent. They’re busy ducking for cover.

Raising the age of consent from 14 was the first change in law proposed by newly appointed Justice Minister Vic Toews last month.

Both Liberals and NDP justice critics continue to argue against raising the age — claiming existing laws protect youth from sexual exploitation and that further criminalizing youth sexuality would be a mistake. But they won’t commit to voting against a future Conservative bill.

Liberal justice critic Sue Barnes says youth are already fully protected from sexual exploitation under several laws now on the books. She points especially to Bill C-2, the so-called child-porn bill, the first law introduced by the Martin government after the 2004 election. Bill C-2 was strongly criticized by leading gay and civil rights groups because it made a difference in age sufficient grounds for a judge to rule that an accused was sexually exploiting a teen.

Bill C-2 is “very adequate. It enhanced protections against sexual exploitation,” says Barnes. There’s no need to raise the age of sexual consent, she adds. Germany has 14. France has 15. “We’re in the same range as other countries. The reality is any sexual offence without consent is already a crime.”

The NDP, long a party that has trumpeted its support for gay equality issues, is taking a cautious approach this time.

Those who want to raise the age “have not proven to my satisfaction that it will better protect youth from sexual exploitation,” says Bill Siksay, the party’s critic for gay, lesbian, bisexual and trans issues. “I think if the government introduces legislation we need a thorough hearing. We need to hear from experts and young people.

“Lots of people in Canada are concerned about exploitation,” says Siksay. “That merits discussion. I don’t want to deny people the opportunity. And I don’t want to see any backsliding.

“I’m interested to see who is making the argument and why. I don’t want young people being sexually criminalized. I grew up in that kind of environment and don’t want to see it return.”

Siksay appears to have a bottom line. He says he cannot support any future Conservative bill that would not include an exemption from prosecution for teens close in age. “It would also have to reduce the anal sex age of consent, Siksay adds.

The Criminal Code now sets a separate age of consent of 18 for anal sex — the only body part with its own sex law. That law has been ruled discriminatory and unconstitutional in three provinces — Ontario, Quebec and British Columbia.

In contrast, Liberal critic Barnes does not favour reducing the age of consent for anal sex.

“I’m very happy with where the Criminal Code is right now.” But, she says, she’s “open as the opposition critic to consulting with all communities” on the matter.

Even the Sex Party is dipping its toe in the water before taking a stand on raising the age of consent. The 250-member party ran three candidates in last year’s provincial election in BC and hopes to run federally next election, says founder John Ince, who owns a sex shop called The Art Of Loving.

Ince says his members haven’t been able to find consensus on an age of consent. But like Siksay and Davies, he calls for a close look at what the research shows. And there’s one provision in the existing Criminal Code that makes him angry — singling out anal sex for a higher age of consent. That clearly discriminates against gays, he says.

“For me the litmus test is the disparity between anal sex and other sex practices. It’s clear in my mind that protection of youth is not what it’s about with that agenda, it’s something else.”

Tom Warner says he’s not surprised that opposition parliamentarians are diving for the bushes on the consent issue. Recent polls suggest the majority of Canadians want the age raised, and in a minority Parliament, politicians try not to take stands that can cost them future votes.

It’s hard to defeat a bill that’s going to be framed as protecting young people and children, no matter how wrong-headed and harmful the bill itself is, notes the member of the Coalition For Lesbian And Gay Rights in Ontario.

But queers, civil libertarians, AIDS educators, planned-parenthood groups and others who care about the genuine health and well-being of teens need to fight back against anti-sex legislation, he says.

“It’s all being driven by the religious right as part of their campaign to recriminalize consenting sex and I suspect they’ll be very loud on these things in the next several years. Despite what’s being said, it’s an attempt to remove the right to sexual self-determination of youth.

“The idea that once someone is over a certain age, it’s automatically exploitation is just wrong. It’s certainly the experience in our community that young people are often the seekers of sexual relationships with an older person and they do not feel exploited. It’s a fundamental question of young people being able to determine for themselves their own sexual decisions.”

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Educators oppose raising age
Law makes it harder to educate youth on safety

Gay groups are not alone in opposing raising the age of consent. Civil libertarians, AIDS educa- tors and planned parenthood experts worry about the impact of criminalizing teen sexuality.

Tracy Davidson, executive director of Planned Parenthood Ottawa, notes that youth today often start having sex as early as age 12.

“Just because a law is in place doesn’t mean it doesn’t happen,” says Davidson.

And legislation that creates barriers between teens and adults will make it harder for sex educators to keep the lines of communication open on issues like birth control and disease prevention, she says.

Increasing the age of consent would be a mistake “if it reduced access to youth” to educate, says Davidson.

“Youth are sexually active and they’re going to experiment and need education and information to do that safely so then they can make healthy choices for themselves.”

Raising the age of consent would not reflect the reality of teens’ lives, says acting executive director Kim Thomas of the Canadian AIDS Society.

“Changing the laws won’t change behaviours,” says Thomas. “But it does make it more difficult to ensure they have access to condoms and information.”

In real terms, she says, it means more youth hesitating to walk into a drug store and buy condoms. Teen sex will be driven further underground. And health messages aimed at young teens could be accused of breaking the law.

“It’s crazy,” she says. “It absolutely puts youth at a higher risk because it drives people into a culture where they feel they have to be secretive. It may cause a great deal of harm for youth who are experimenting. It could stop them from asking the questions that need to be asked, and learning what they need to learn.”

Existing laws protect youth from sexual exploitation by authority figures and internet stalkers, says Thomas.

And, she adds, the suggestion that legislation allow youth close in age to have sex just leads to problems. How close in age? Two years? Or five years? Gay youth often seek out older partners; lowering the age of consent is “not taking into consideration the youth that are involved in same-sex relationships,” she says.

The BC Civil Liberties Association has had heated board meetings about the idea of raising the age of consent, says policy director Micheal Vonn. The board wants to avoid picking an age. But, she says, they want to know what the empirical evidence shows — and Vonn doubts that there’s any evidence that reducing the age to 14 will reduce exploitation.

Meanwhile, she says, “the issue here [should not be] what you choose to do sexually at age 14 and how to criminalize it. The issue is exploitation and how we get at it. I, for one, cannot believe age of consent laws are the way to address it.

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What the research shows
Raising age of consent may backfire

The president of the Canadian Association For Adolescent Health, which released a countrywide survey on adolescent sexuality in February, says the age of consent makes little difference to teens’ sexual behaviour and raising it from 14 could be dangerous.

“If it’s a question of controlling behaviour, no law will control that, and it could have a negative effect,” says Jean-Yves Frappier, a paediatrician and head of the adolescent division at Montreal’s Saint-Justine Hospital.

The CAAH survey, based on 1,171 on-line interviews with teens across the country between 14 and 17, concluded that 27 percent of teens are sexually active. The average age for teens to first have sex or oral sex was 15.

But the study also showed that one percent had had sex or oral sex at age 10, one percent had had sex or oral sex at age 11, two percent at age 12 and 11 percent at age 13. At 14, 25 percent had had sex and 29 percent had had oral sex. Eight percent of males and 11 percent of females had had anal sex, although the ages when it occurred was not reported, nor was the gender of the partner involved.

On average, teens had had three partners since becoming sexually active.

Conservative justice minister Vic Toews has said that he wants to target adult predators, and won’t go after close-in-age teens having sex. But Frappier worries that teens won’t be aware of these distinctions and will be less willing or able to seek help or to protect themselves against sexually transmitted diseases.

“You’re a 12-year-old. You’re not necessarily listening to the news. That message doesn’t get through to these youths, who think it will be prohibited.”

In Britain — where the age of consent is 16 — the sex advice charity Brook has found Frappier’s concerns to be a reality. The BBC reports that a study done by the charity found teens “are also unlikely to seek advice about contraception and sex if they are under-age because of worries about confidentiality and the law… Young people were unlikely to seek advice before the legal age of consent at 16 — young women who first had sex before they were 16 were six times more likely than over 16s to say ‘fear of being too young’ was the reason they had not sought information.”

Frappier also says he worries that once the law is in place, regardless of Toews’ intent, parents or conservative police or politicians will use it against teens.

The CAAH study reported that already 62 percent of teens say they face obstacles — such as discomfort in talking about sex — in getting answers to sexual health questions. The most common areas they cited included questions about abuse between partners, date rape and when they’re ready to have sex.

There appear to be very few, if any, studies that have examined the statistical relationship between age of consent and predator abuse, or even sexual abuse in general. But studies that have looked at age of consent and sexual activity appear to support Frappier’s concerns.

A survey conducted by condom-maker Durex in 1999 talked to 4,900 youths between 16 and 21 from around the world. The survey showed that youth in Canada and in the US, where the age of consent in most states is 16, on average had their first sexual encounter at 15. In Germany, where the age of consent is also 14, the average age was 15.6. American teens had the highest number of sexual partners at 7.5.

Advocates For Youth, an Oregon-based group, conducted several studies over a few years in conjunction with the University Of North Carolina. Their studies compared the US, Germany, France — whose age of consent is 15 — and the Netherlands, where age of consent is 16.

Their 1998 report found that US teens on average lose their virginity at 15.8 years, Germans at 16.2, French at 16.8 and Dutch at 17.7. The same report found that American teens had, on average, 3.05 partners, the Dutch 1.7 and the Germans 1.9.

In 1999, Advocates For Youth reported that pregnancy rates were 83.4 per 1,000 for girls aged 15 to 19 in the US; 20.2 per 1,000 in France; 16.1 per 1,000 in Germany; and 12.2 per 1,000 in the Netherlands. Abortion rates for teens were 3.6 per 1,000 in Germany, 4 per 1,000 in the Netherlands, 10.2 per 1,000 in France and 25 per 1,000 in the US.

Advocates For Youth links the differences between the four countries to social approaches rather than to ages of consent, saying that the Netherlands, which has the most liberal attitudes, has the highest age for sexual activity.

“Those issues, and the public policies and practices related to them, include: access to health care, especially reproductive and sexual health services; sexuality education; mass media and social marketing campaigns; and family, community and religion…. The United States also has the highest poverty level among major industrialized nations…. The United States earned a poverty score of 16.5 percent; by comparison, the Netherlands scored 8.2 percent, Germany scored 10.5 percent, and France scored 11.8 percent. Poverty is significant to adolescent sexual health indicators because of its association with adolescent pregnancy and its impact on youth goals, aspirations and risk behaviors.”