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Lessons learned while wrestling age of consent

The fight against prudery

COME TOGETHER. Age of consent legislation is now in effect, but the fight showed how gay leaders can work together to fight for sexual freedoms. Credit: (Brent Creelman photo)

The battle gays have waged against the status quo has often been a battle against sexual prudery. Canada’s first queer legislative victory, the decriminalization of anal sex in 1969, was after all an issue of sexual freedom. Gay sex may make some people squidgy, but their discomfort shouldn’t be enshrined in law, we argued.

When thousands of people took to the streets in 1981 to protest police raids on Toronto bathhouses, the message was essentially the same. You can be a prude in your own life, we hollered, but don’t throw us in jail for our sexual choices.

Canada’s new age of consent — raised to 16 from 14 — was signed into law on Feb 28. The youth-led Age of Consent Committee spoke out against the bill, making several key arguments (see sidebar, below): legal, health-based and ethical.

The teens it effects were not yet born in 1981 (let alone 1969), but this new generation used the same rubric of sexual freedom that has been a touchstone of gay activism for 40 years.

Nick Dodds presented to two Parliamentary committees on the bill.

“I knew what the chances were of this bill being defeated,” says Dodds in a letter to Capital Xtra. “But I also know that it passed in the Senate by only 3 votes, and that’s pretty damn close.”

“I’m proud of the fact that we got to voice our opinion during public hearings, and I’m proud of the people who were there with us,” he says. “Some of the people which I had the pleasure of presenting with were absolutely fantastic youth advocates and in some cases, youth themselves. I think the youth contingent pulled together a respectable representation, regardless of how inadequate youth representation ended up being.”

The age of consent battle has helped revitalize discussion of sexual freedom issues among gays and lesbians. In 2005, Xtra.ca reported queer lobby group Egale’s failure to consistently fight for sexual freedom. At the time, the target was Paul Martin’s so-called luring bill. That law removed the “artistic merit” defence against porn charges and collapsed the definition of “child”, “adolescent” and “young person.”

Dodds was the only teenager to present to MPs on age of consent after C-22 was introduced in June 2006. He spoke to the Senate about age of consent in February, when the omnibus crime bill, C-2, was being considered.

He says the new law “will most likely be used as ammunition against both queer and straight couples with otherwise healthy age-disparate relationships.”

“There is a long history of hetero-normative people accusing the queer community of having links to pedophilia, and over time I have very much gotten the impression that many queer community members — regardless of how opposed they were to C-2 — were afraid to publicly resist the bill for fear that their motives would be called into question,” he says.

It’s a grenade often lobbed at those in our community for whom fighting prudery has been a priority. Sensing the political risk, some folks have chosen to duck and cover.

But not this time.

Egale, the Canada-wide queer lobby group, has been a leader on equality-based fronts — gay marriage, spousal rights, adoption — but has sometimes shied away from issues of sexual freedom.

However, Egale proudly denounced the age of consent bill. Interim executive director Kaj Hasselriis made a presentation to MPs in 2007 and his points were reiterated by the BC Civil Liberties Association earlier this year. Egale’s current director, Helen Kennedy, continues to speak out against it.

Egale and the Age of Consent Committee were not alone. They were joined by longtime sexual freedom advocates in disavowing the law: the Coalition for Lesbian and Gay Rights in Ontario, the Toronto-based Sex Laws Committee and the Committee to Abolish the 19th Century.

“It is disheartening,” says Kennedy about the passage of C-2, “but anytime that you can come together as one on an issue, it’s extremely empowering.”

Groups like Egale and the Age of Consent Committee were able to find common ground with medical groups. Both advocated dealing with the reality of teen sex — providing sex ed, access to health services and social supports — rather than burying our collective heads in the sand.

Medical groups came out of the woodwork to oppose the measures, including the Canadian Federation for Sexual Health, the Canadian Association of Social Workers and the Canadian AIDS Society. Other groups, like the BCCLA, widened the tent even further.

In the end, gays and lesbians formed a cornerstone of vocal opposition to raising the age of consent.

But when the dust settled, our warnings had largely gone unheeded. Most politicians lacked the political will to vote against it and even progressives like BC MPs Libby Davies and Hedy Fry had to hold their noses and either abstain or absent themselves from the vote — that is, except for Bill Siksay, the only MP to vote against C-2 in Nov 2007. Soon after, senators got their marching orders — pass C-2 and pass it quickly.

Then a funny thing happened. The senators began to push back.

First Liberal Senator Sharon Carstairs was interviewed on Mike Duffy expressing her reservations with an age of consent set at 16. Then the committee examining the bill, under Joan Fraser, went to extraordinary lengths to hear from witnesses, more than 50 in all, in marathon sessions that lasted a week.

In the end, 31 senators abstained from voting on C-2, leaving 19 to vote for it and 16 (including all the Liberal members of the legal affairs committee) to vote against it. And that was it. By sitting out the vote, they let the bill pass.

And that’s left gay leaders to castigate Canada’s politicians.

Richard Hudler is from the Sex Laws Committee.

“I am proud of those who had the courage to speak out against the legislation,” says Hudler. “I guess what disturbs me the most is how little the facts and implications of legislation matters. If supporting bad legislation will somehow augment their seeking of power, they will support it, even when some of their more enlightened members have said ‘wait a minute.'”

But would the Senate have bothered if they had not faced opposition from, among others, queer groups?

Andrew Brett, a young gay man who also spoke to parliamentarians about age of consent, says that the fight “emboldened” some political figures, making it “more easy for MPs like Bill Siksay to vote against the bill.”

Moreover, Brett hopes the Conservatives will be more cautious in the future.

“We should always be vigilant,” he says. “I’m hoping that the fight we put up on this one will put a halt to other regressive actions by Prime Minister Stephen Harper.”

It’s a point echoed by the Age of Consent Committee’s Nick Dodds.

But Dodds says we should be more confident, more brazen about our demands, in the future.

“Nearly every group that spoke about the bill prefaced their comments with ‘Well, we all know this bill is going to pass, but here’s our token statement anyway.’ I am not kidding, this actually happened,” he says. “It was unreal. Not only were witnesses acting like it was a done deal, the activist population was as well.”

“I’m angry that people didn’t believe in themselves more. The bright side is that changing people’s opinions about their own power is so much easier than changing back this law,” he says.

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New law, old boogey man

REALITY CHECK / Did none of these people have sex as teenagers?

Dealing with youth sexuality has always been a game of political hot potato. So many voters are parents — full of anxiety about their children having sex, ever — that even silly or demonstrably harmful laws can garner widespread popular appeal.

Will anyone be protected by Canada’s new age of consent? Or will the new law be used primarily to reinforce prudery and prosecute consensual sex?

On the surface, Conservative agenda-setting has worked: the change was designed to leave Canadians feeling that the Conservatives were “protecting” the young and the vulnerable — even though experts say the law is dangerous for the youth it seeks to protect.

But Stephen Harper’s Conservatives are not the only party to let down our youth. Both the Liberals and the NDP have balked at protecting their right to sexual self-determination. Even after youth and queer members of the NDP sought to make age of consent a priority in 2006, the party machine sidelined their concerns. The Liberals pointed to their own anti-sex legislation, Paul Martin’s “luring” bill, as enough “protection” for teens from sex.

Having sex with someone when you’re in a position of authority — with people of any age — is already illegal under Canadian law. In other words, Canada doesn’t need a special law for exploitive relationships involving people under the age of 18. The same statute that punishes a boss who has sex with his secretary would punish a coach that has sex with his or her athletes. Or a teacher that has sex with his or her students. And of course any sexual encounter not freely entered into is sexual assault or rape. And that’s before Paul Martin’s draconian measures became law in 2005.

Which just leaves consenting non-exploitive sexual relationships. Why is state intervention required to control consenting sex? Legislation controlling sex smacks of the same moralizing that made other sexual practices illegal — from gay sex to premarital sex — in earlier times and which continues to suppress polyamory, sex work, public sex and anal sex under the age of 18.

The reality of gay and lesbian life is that a Grade 10 student choosing a sexual partner who is 19 or 20 is not unusual. That phenomenon can be partly attributed to the fact that gay teens often have no peers who are potential sexual partners. And unlike straight people — who can model their relationships after their parents, their neighbours, and prime-time TV couples — gay teens have precious few ways of learning about the way we live. Gay teens are ostracized by their peer group; often the only people they can “be gay around” are older. That means the new law leaves them more isolated, more alone, and ultimately more at risk.

For some politicians, the proposed legislation is flawed because they see it as jeopardizing access to sexual health services. In other words, the bill could limit young people’s ability to get STI tests, safe-sex and pregnancy prevention information, and abortions. The Liberals — at one point, now seemingly in the distant past — wanted to see the bill amended to re-enforce teens’ right to medical services. But the cooling effect — where teens feel unsafe disclosing their sexual histories to doctors and other professionals — has potentially dangerous consequences regardless of whether the bill is amended. AIDS groups and the national association of Planned Parenthood groups have added their voice to the chorus of opposition to raising the age of consent.

In addition, the law will undoubtedly be used predominantly against gay men. Laws surrounding youth sexuality are often used to harass our community. The uneven application of the law both comes from and re-enforces the attitude that gay men are predatory. Consider Kim Campbell’s kiddie porn law: a hastily produced bill which outlawed everything from journal entries to artistic commentary about the sexuality of those under the age of 18 (parts of this law were subsequently struck down at the Supreme Court). That bill was used by overzealous police officers like Julian Fantino, who went on to be the Toronto police chief, to lead a crusade, purportedly to protect young people, but in fact systematically targeting gay men. Or consider the way gay material versus straight material is handled by Customs. A law can be bias-free in letter but homophobically applied, and nowhere is that more true than when youth sexuality is the ostensible target.

Other than the religious right, there is a lobby group that is celebrating the law’s enactment this month. And that’s police. No longer will they have to prove pesky things like “exploitation.” A teen’s testimony that she consented will not keep her partner out of jail. And police can begin prosecuting consent cases as a proxy for other crimes — in effect, undermining the state’s burden of proof, but leading to more convictions.

And what of the religious right? Presenting before senators in February, REAL Women of Canada and the Salvation Army said that raising the age of consent to 16 was a start, but both groups would prefer 18. It’s not surprising. But how Canadians react when Harper’s next anti-sex bill comes down the pipes — that might surprise folks.

See Xtra.ca’s complete coverage of age of consent here: