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CLGRO’s submission to the Senate on Bill C-2

C-2 would infringe 'on the right of young persons to express their sexuality'

Submission to the Senate Regarding Bill – C-2: An Act to amend the Criminal Code and to Make Consequential Amendments to Other Acts, Part 2 – Increasing the Age of Consent (Clauses 13-14; 54; 58; 62)(38)

Coalition for Lesbian and Gay Rights
In Ontario

February 2008

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The Coalition for Lesbian and Gay Rights in Ontario (CLGRO) is an organization composed of groups and individuals who are committed to working towards feminism and bisexual, lesbian, and gay liberation by engaging in public struggle for full human rights, by promoting diversity and access, and by strengthening cooperative networks for lesbian, gay, and bisexual activism.

CLGRO is a coalition of some 20 groups and hundreds of individual members in all parts of the province. Founded early in 1975, CLGRO has concentrated its efforts in the areas of grassroots organizing, public education, and governmental lobbying.

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Introduction

The Coalition for Lesbian and Gay Rights in Ontario (CLGRO) believes that the proposed new provisions of the Criminal Code that would be established upon the enactment of Part 2 of Bill C-2 would not, as is contended by the government, protect young people from sexual exploitation. Rather, they would serve only to criminalize certain sexual relations engaged in by young people with older persons, to which the young persons have consented, by deeming that the young persons are incapable of providing consent. This would be true even in situations where the young person and the older person are in a conjugal relationship to which both have consented unless they are expecting a child or are common-law partners. Even then the accused must not be in a relationship of dependency. It is quite common for one of two people in a common-law or conjugal relationship to have one working and supporting the other, particularly if one is pregnant; making this aspect of the law most destructive of an otherwise legal family unit.

The exception made to allow young people to marry even when one is under the age of 16 and the other is more than five years older is inconsistent with the assumption of this legislation that people under the age of 16 are incapable of making a decision to enter a sexual relationship with someone more than five years older. It also prods young people into entering a marital relationship before they may themselves choose to do so or which may not be the type of relationship they wish to enter. As well, such a provision provides a privileged status to marriage, discriminating against other types of relationships
The proposed amendments would strip younger people of an important right to sexual self-determination and expression, with the state dictating that they could not willingly and freely enter into consenting sexual relationships with any person who is more than five years older. Part 2 of Bill C-2 is unnecessary and dangerous legislation that should not be enacted.

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 purported child-protection legislation such as the Criminal Code amendments contained in Part 2 of Bill C-2 can be used to attack gays, bisexuals, and lesbians by reinforcing the myth that we prey on children and youth.

We further believe it is likely that the amendments contained in Part 2 of Bill C-2 will be used 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 Part 2 of Bill C-2’s intent to “protect” young persons from consensual sex is part of a broader agenda promoted by a number of social conservative advocacy groups committed to re-asserting religious and moral values in Canada’s laws and public policy by using the institutions of the State to stringently regulate sexual morality. These groups are opposed to abortion and funding of abortion services, sex education in schools, safe sex education, presentations of homosexuality or same-sex relationships that conflict with their moral beliefs, liberal divorce laws, legal recognition of common-law relationships and all measures to establish legal equality or recognition for lesbians, gays, bisexuals and transgender people. Many of the groups who have been pressing most strongly for an increase in the age of consent believe that young persons should abstain from sex and that the state, public institutions and the school system should promote chastity. Some have expressed the desire to have the age of consent increased even further, to 18 years if possible.

In reality, the Criminal Code amendments proposed in Part 2 of 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. The amendments simply appeal to the agenda of the various social conservative groups who view all sex outside of marriage as immoral, the fears and paranoia of overly protective parents and the revulsion and squeamishness that many people feel about so-called intergenerational sexual relationships.

Vulnerability of children and youth

The Criminal Code already contains many provisions that address the vulnerability of children and youth to sexual exploitation and coercion. Among these are S. 153.(1), most recently amended as a result of Bill C-2 adopted by the 38th parliament. It created a new offence against the sexual exploitation of youth under 18 years where the relationship is exploitative of the young person, as evidenced by the nature and circumstances of the relationship, including the age of the young person, the difference in age between the youth and the other person, how the relationship evolved, and the degree of control or influence exercised over the young person. This provision already protects youth and increasing the age of consent to 16 years is unnecessary.

The provisions of Part 2 of Bill C-2 also contrast vividly with the legal status of young persons under other laws or other sections of the Criminal Code. 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 Part 2 of Bill C-2, they would not be deemed to have consented to certain sexual activities or relationships because they would be deemed not to have the capacity to legally 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. Unfortunately, the amendments contained in Part 2 of Bill C-2 will create more instances in which consenting sexual relations between a person between the ages of 14 and 16 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. In that regard, Part 2 of Bill C-2 is deficient because it leaves unchanged the provisions of s. 159(1) of the Criminal Code that establishes an unequal age of consent for anal intercourse (18 years) that is higher than either the current age of consent for other sexual acts (14 years) or that would be established for such other acts (16 years).

Unequal enforcement of the Criminal Code

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 or being seen as a more serious matter warranting more severe punishment than sexual relations involving members of the opposite sex. 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 Part 2 of Bill C-2, in our view, will make this discriminatory situation very much worse.

The difference in age exemption

The government claims that a new five-year peer group exemption will protect relationships between youth from being prosecuted under this proposed law. However the exemption contained in Part 2 of Bill C-2 is so restrictive that it would apply to few of these relationships. Since the exemption does not apply to relationships of dependence, the law would criminalize an 18 year-old with an income who supports a 15-year old partner. In addition the ‘peer group’ exemption displays common misconceptions about sexual abuse — that it is just an age difference that constitutes a power indifference and that youth do not have the capacity to consent to sexual relationships with older adults.

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

If the 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.

CLGRO also is concerned that Criminal Code changes set out in Part 2 of Bill C-2 legislation will have a chilling effect on service providers who counsel youth about sexual issues, and will impede their ability to provide such services because of a fear that to counsel young persons under 16 years of age about sexual matters will be illegal. This may make it difficult for youth to get access to sexual health counseling such as HIV prevention and to information on safe sex practices.

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 Part 2 of Bill C-2 that consensual sex itself is 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 safely enjoy. We see education and discussion as the best means to bring this about and, since parents cannot be relied on to provide that education, we think it should happen in the education system. Criminalizing consensual sexual activity engaged in by young persons with older persons will not protect the younger person; it will only infringe the human rights of both parties and, in particular, the right of young persons to express their sexuality.

CLGRO believes that the age of consent should not be increased. We call for Part 2 of Bill C-2 to be withdrawn or, if it is not withdrawn, that the opposition parties vote against in parliament so that it is not enacted. We also call for a new bill to be introduced that would establish the age of consent for anal intercourse at 14 years of age, to make it uniform with the current age of consent for other sexual acts.