Canada
11 min

CLGRO concerned about new kiddie porn legislation

Artists, anti-censorship advocates and gay rights activists have all raised concerns about the federal government?s new kiddie porn legislation, Bill C-2. The Coalition for Lesbian and Gay Rights in Ontario (CLGRO) made a submission to the parliamentary committee reviewing Bill C-2. Here?s what CLRGO told Members of Parliament.

SUBMISSION OF THE

COALITION FOR LESBIAN AND GAY RIGHTS IN ONTARIO (CLGRO)
TO THE STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS, PUBLIC

SAFETY AND EMERGENCY PREPAREDNESS
RE: BILL C-2, AN ACT TO AMEND THE CRIMINAL CODE (PROTECTION OF CHILDREN AND
OTHER VULNERABLE PERSONS) AND THE CANADA EVIDENCE ACT

April 2005

Contents

1 Introduction

2 Vulnerability of children and youth

3 Exploitation and differences in age – amendment of s. 153 (sexual exploitation)

4 Child pornography – s. 163.1

5 Retention of an age of consent for anal intercourse that contravenes the Canadian Charter of Rights and Freedoms – s. 159(1)(b)

6 Conclusion

1.0 Introduction

Like all reasonable adults in Canadian society, lesbians, gay men, and bisexuals believe that children are vulnerable beings in need of protection until they can think for themselves and weigh up the consequences of their actions. We believe, like most reasonable people, that education serves the purpose of helping children and young people, as they mature, make responsible, adult decisions that will not harm themselves or others.

Indeed, a good deal of the activist energy that we expend has gone, in the last 30 years into making sure that there are legal and social protections for the children we parent and those we know to be growing up gay, to make sure that they are not harmed by a homophobic world.

We believe that children and young people learn by knowing about their lives and the lives of others and that schools need to make sure they are aware of the many differing lives and lifestyles Canadians live and of the tolerance we Canadians believe in and which is mandated by our federal and provincial human rights legislation. To this end, we believe that a consistent and reasoned approach is needed to the laws regulating what can and cannot be learned or experienced by those deemed by the law to be “children” and “young persons.”

There is no reason to believe the police and courts will suddenly become less homophobic or that serious attempts will be made to educate and empower children and youth in the area of sexuality. Officials and parents are unlikely to encourage the autonomy of lesbian, gay, and bisexual teens in the free expression of their sexuality, however many studies show that lesbian, gay, and bisexual teens struggle for self-esteem and are at higher risk for suicide attempts and suicide. We also know from bitter experience that child-protection legislation such as the Criminal Code amendments contained in Bill C-2 can be used to attack gays, bisexuals, and lesbians by reinforcing the myth that we prey on children and youth.

It is also likely that the amendments will be used as a tool to deny young people sex education in the schools. This would diminish their understanding and control of their own sexual feelings and actions as well as making them more vulnerable to risks such as the exploitation the bill seeks to prevent as well as health risks (including sexually transmitted diseases and teen pregnancy).

We believe that Bill C-2’s defining of teenagers as children to be protected from sex is part of the anti-sex backlash orchestrated by a powerful segment of Canadian society. An integral element of that backlash is expanding the options for outlawing consenting same-sex relationships, which they see as immoral, abnormal, and destructive. In reality, the amendments proposed in Bill C-2 will neither protect young persons from abuse nor help them deal with consensual sex as part – we hope a pleasant part – of their lives.

2 Vulnerability of children and youth

Several of the proposed amendments to the Criminal Code contained in Bill C-2 are intended to address the vulnerability of children and youth in respect of sexual matters. However, there is no meaningful differentiation made within the provisions of Bill C-2 between children (pre-adolescents) and young persons (adolescents and teenagers). “Young persons” are deemed to be – and are treated the same way as – “children” under various provisions.

This contrasts vividly with the legal status of young persons under other laws or other sections of the Criminal Code. Young persons aged 16 or over may drive cars on the roads and highways of Canada. Young persons who are 14 years of age or older and who are convicted of criminal offences may be sentenced to adult terms and imprisoned for committing serious criminal offences (including murder or aggravated sexual assault). Yet, under the Criminal Code amendments contained in Bill C-2, they would not be deemed to have consented to certain sexual activities or relationships because they are deemed not to have the capacity to give consent.

We accept that there is a stated need in our society to identify a chronological age that roughly equates with the capacity to give consent. But while the Code generally sets the age of consent at 14, a number of existing, and very complex and confusing, provisions of the Code inappropriately negate or curtail the age of consent, or establish different ages of consent. Bill C-2 will make that situation even worse. It expands the circumstances under which consenting sexual relations involving a person over the age of 18 years and a young person who is between the ages of 14 and 18 will be criminalized, to protect the younger person from “exploitation” by the older.

The new provisions, couched in the language of protecting young persons (i.e. between the ages of 14 and 18) from sexual exploitation, are premised on the faulty assumption that tougher laws will offer more protection. There is no substantiated basis for assuming that stronger laws will actually provide greater protection to young persons.

Unfortunately, the amendments contained in Bill C-2 will create more instances in which consenting sexual relations between a person between the ages of 14 and 18 and someone over that age are criminalized. The result will be infringement of the human rights of both parties and, in particular, the right of young persons to express their sexuality.

We believe that the age of consent, generally stated as 14 years, should not be increased. We also believe the age of consent should be consistent within the various provisions of the Criminal Code.

3 Exploitation and differences in age – amendment of s. 153 (sexual exploitation)

The current provisions of s. 153 of the Criminal Code, in our view, are sufficient to address the exploitation of young persons. We are deeply concerned that the proposed amendments to s. 153 of the Criminal Code contained in Bill C-2, which deal with sexual exploitation of a person over the age of 14 years but under the age of 18 years, create a troublesome blurring of the distinction between sexual assault and consensual sexual activity.

An amendment to subsection (1) would extend the application of s. 153. It currently applies to persons in a position of trust or authority towards a young person or with whom the young person is in a relationship of dependency. As amended, it will include “anyone who is in a relationship with a young person that is exploitative of the young person.” Under a new subsection (1.1), the maximum penalties for conviction are increased to 10 years (from 5 years) for an indictable offence and to 18 months (from 6 months) for a summary offence.

A new subsection (1.2) states that a judge may infer from the nature and circumstances of the relationship that a young person is being exploited in that relationship. The factors that a judge may take into account include the age of the young person, the age difference between the parties, the evolution of their relationship, and the degree of control or influence exercised over the young person. Disturbingly, the new provision does not define “exploitation.” Of course we are opposed to relationships in which the young are exploited, but to leave the definition of “exploitation” to the courts (and probably the newspapers) is likely to result in a situation where the homophobia that is present in Canadian society will be exacerbated. This will not necessarily protect young people.

The above-noted amendments to s. 153 will severely curtail the ability of young people to legally consent to sexual activity. In particular, the assumption — still very much prevalent in society as a whole — that children are pre-destined to grow up to be heterosexual means there is a strong likelihood that same-sex relationships will be dealt with more severely under this legislation than comparable heterosexual relationships. There is a widespread belief that older, predatory persons lure young people into homosexuality. This is coupled with a refusal to accept that younger persons are capable of seeking and do seek out consensual same-sex relationships with older persons and, in fact, may be the initiators of such relationships. In addition, contrary to popular belief, a relationship with an older person may not in fact be damaging for a young person.

There is already widespread concern within lesbian, gay and bisexual communities about the enforcement of the current provisions of the Criminal Code dealing with sexual relations. There is unequal enforcement of the law, with gay and lesbian sex being disproportionately targeted. Our experiences are that a perception of harm is more likely when the persons involved are of the same sex, just because of the stigma attached to homosexuality. Parents are often more unhappy about their children having sex with someone of the same sex than with someone of the opposite sex, and are far more likely to call the police. The police are often more lenient and inclined to view sex as merely “sowing wild oats” or “natural and healthy exploration” when it involves opposite-sex persons, and more vigorous in laying charges and inclined to see a sexual relationship as “corrupting morals” when it involves persons of the same sex. The proposed amendments to Bill C-2, in our view, will make this discriminatory situation very much worse.

The danger presented by the new Criminal Code provisions is that any same-sex consensual relationship involving a person over the age of 18 years and a person who is under the age of 18 but over the age of 14 will be deemed “exploitative.” The determination may be made even though the younger person has consented to the relationship and does not believe that she or he has been exploited. There is a plausible risk that the older person will always be presumed to be exploiting the younger person and luring them into a homosexual lifestyle.

We therefore call for Bill C-2 to be amended to delete

– the proposed amendment of subsection (1) of s.153 that introduces the offence of “a relationship that is exploitative of the young person”; and

– the proposed new subsection (1.2) of s. 153 that prescribes age-related and other factors that a judge may consider to determine if a consensual relationship is exploitative.

4 Child pornography – s. 163.1

The proposed amendments to s. 163.1 (child pornography) will make a badly worded and overly broad law even more so. The existing section 163.1(a)(i) of the Criminal Code already criminalizes the visual showing of a person “who is or is depicted as being under the age of eighteen years and is engaged in explicit sexual activity.” It unreasonably classifies all persons under the age of 18 as “children,” and, except for limited defences, criminalizes any description or depiction of their consenting sexuality as “child pornography.” S. 163.1 thus has criminalized the depiction of sexual acts involving persons under the age of 18 that are not in themselves criminal offences. Bill C-2 further expands this egregious provision, while also narrowing the defences available to persons charged with an offence.

Bill C-2 introduces a new provision, as paragraph (c) of s.163.1(1), that adds to the definition of child pornography, written material “whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.” A new paragraph (d) also adds an audio recording to the definition of child pornography, where its dominant characteristic is the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code. One form of sexual activity that is an offence under the Code – although it has been ruled by the courts (Ontario and federal courts of appeal 1994; Quebec Court of Appeal 1998) to contravene the equality rights section of the Canadian Charter of Rights and Freedoms — is consensual anal intercourse involving a person who is under the age of 18 but over the age of 14.

At the same time, Bill C-2 introduces a new subsection 163.1(6) and repeals the former subsection that provided for an “artistic merit” defence. The new s. 163.1(6) creates an overly restrictive, two-tier defence. Paragraph (a) establishes a defence of “legitimate purpose related to the administration of justice or to science, medicine or art.” The effect can only be a narrowing of the available defences in such instances as fictionalized depictions of sexual acts among young persons under the age of 18 years or the description of an act of anal intercourse involving a person between the ages of 14 and 18 where the younger person has consented to the act. In addition, paragraph (b) establishes a reverse onus on the defendant to prove that an undue risk of harm is not posed to persons under the age of 18. This will be the case even if “a legitimate purpose related to the administration of justice or to science, medicine, education or art” can be established. This means that the defendant must prove a negative, rather than the prosecution proving that there is an undue risk of harm to persons under the age of 18. It is inconsistent with the principle of “innocent until proven guilty.”

Bill C-2 should be amended to delete

– the proposed amendments that would add paragraphs (c) and (d) to s. 163.1(1) to unduly expand the definition of child pornography beyond the current provisions; and

– the proposed new s. 163.1(6) containing a defence of “legitimate purpose related to the administration of justice or to science, medicine, education or art” and a reverse onus of proving that an undue risk of harm is not posed to persons under the age of 18; the current defence of “artistic merit or an educational, scientific or medical purpose” should be retained.

5 Retention of an age of consent for anal intercourse that contravenes the Canadian Charter of Rights and Freedoms – s. 159(1)(b)

Bill C-2 leaves unchanged the provision of s. 159(1)(b) that sets the age of consent for anal intercourse at 18 years. In contrast, other provisions of the Criminal Code, as previously noted, generally establish 14 years as the age of consent for sexual acts. The differential and discriminatory age of consent for anal intercourse was ruled in 1994 by two judgements (the Ontario Court of Appeal and the Federal Court of Canada) to contravene the equality rights provisions of the Canadian Charter of Rights and Freedoms because it discriminates on the basis of age. Yet, the government of Canada has not amended s. 159(1)(b) to comply with those judgements. In addition, we note that s. 159(1)(b) discriminates on the basis of sexual orientation, as it has a disproportionately adverse impact on young gay men for whom anal intercourse is a form of sexual expression.

Bill C-2 should be amended to replace the age of consent of 18 years for anal intercourse in s. 159(1)(b) with the age of consent of 14 years, thus establishing a consistent age of consent for all forms of sexual acts.

6 Conclusion

Clearly children need to be protected from harmful experiences, but we are worried by the notion that seems to underlie much of the dialogue accompanying this legislation that sex is itself a harmful experience from which young people need to be protected. Sex is a normal and natural part of life that young people need to know about, to be able to assess, and then, we hope, to enjoy. We see education and discussion as the best means to bring this about and, since parents cannot be relied on to provide this, we think it should happen in the schools.

The Criminal Code amendments contained in Bill C-2 are an unnecessary and inappropriate response to addressing the vulnerability of young persons. We are concerned that rather than increasing protection for children and young persons, Bill C-2 can and will be used to keep young people in the dark when their best resource and defence is knowledge. We also fear they will be used, in order to attack and repress, disproportionately against same-sex consenting relationships or the description or depiction of such relationships.