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Sex Laws Committee submission on C-22

Standing Committee on Justice and Human Rights, March 2007

We wish to express our opposition to this Act and ask that it be withdrawn. We appreciate the opportunity to make our concerns known to this committee.

The Sex Laws Committee is a Toronto based committee of individuals committed to changing Canada’s archaic laws relating to sex, sexuality and sex work. Our general statement of position is that we support all freedom of consensual sexual expression and oppose the criminalization of sex, sexuality or sex work. Thus, we call for the repeal of all provisions of the Criminal Code restricting or prohibiting sexual activity involving consenting persons. Further, we oppose the criminalization of written, oral or visual representations of sexual activity.

Too often we have seen laws put in place ostensibly to protect, but these laws tend instead to be used to control people and impose particular moral codes on people who do not themselves endorse those codes. Protection is important and so is respecting the rights of all citizens to hold and act upon their own beliefs so long as their actions are not harming others or impinging on the rights of others to hold and act upon their beliefs. This legislation states that it is necessary “… to raise the age, from 14 to 16 years, at which a person can consent to non-exploitative sexual activity.” The phrase “non-exploitative” sends a strong message that the purpose is to control the will of young people rather than protect them.

We believe this legislation infringes on the rights of young people while eroding their ability to develop the capacity to protect themselves when facing the changing challenges life brings to them as they grow. Considering the motivation that might drive a decision to raise the age of consent, it would seem that some segments of society would believe that persons of 14 and 15 years are not capable of making decisions about sexual behaviour. To come to such a conclusion is to admit that our society has not provided young people with adequate education about sexual issues by the time their biological development has reached the point where they should have such knowledge. Simply passing a law prohibiting them from having sexual activity evades the responsibility we have to improve comprehensive sex education in our schools well before children reach puberty, leaving them less able to protect themselves at that time.

Yet this legislation goes on to apparently acknowledge that persons at 14 and 15 years of age will have sex by including an exception if they are having sex with a person who is less than five years older. Those of us from the gay and lesbian communities are particularly aware of the dangers of attempting to enter same sex relationships in schools and societies where our potential partners are at best oblivious to and at worst hostile toward same sex attractions. Many of us have sought and appreciated the safety of making contact with a more mature partner we have gained to trust. To remove that resource and the right to make that decision places the young person in more danger rather than protecting them. There is no guarantee that a potential partner within the five year age range is not going to be as much of a threat as an older person. Improving early education about the diversity of sexual orientation and teaching young people about the joys and potential pitfalls surrounding sexual activity will provide much greater protection than criminalizing their behaviour.

The transitional exceptions in the law regarding young people who are married or in common law relationships also acknowledge that such relations are not de facto exploitative. We understand that other legislation is being considered which would reduce the age at which a person could be held criminally responsible as an adult to an age as young as 10 years, further suggesting that this government acknowledges the decision making capacities of 14 and 15 year old people. This set of legislative proposals sends a strong contradictory message. At the same time that offender provisions move toward adult sanctions on the actions of the young when they break the law; such recognition of responsibility to act is radically denied under the proposed changes to the age of consent law.

Efforts to bring the kind of comprehensive sex education we are proposing into the public education system is invariably met with major resistance by religious based and other groups which complain that sex education belongs in the home. Such pressure no doubt underlies the promotion of legislation such as this which evades the public responsibility to prepare young people for sexual maturity in a secular pluralistic society.

A recent survey indicated that while 60 percent of teens said their mothers were top confidants (along with friends at 67 percent) “… only about one-quarter of teens said they were comfortable talking to their parents about sex.” Research overwhelmingly indicates that the social site of greatest danger continues to be the family and the perpetrator is one that is known to the victim.

Leaving sex education to the home only increases the vulnerability of young people to abuse and exploitation in the home. Sex education also needs to occur outside the home and not by peers of the youth as this legislation suggests.

Young people need the personal knowledge and strength to make their own decisions at home and in the public sphere. Persons who would harm children are a threat at home and within their age groups. Young people need the knowledge of their rights and the self confidence that their decisions in such matters as sex will be supported by the law when they need that support and not imposed on them when they do not want it. The legislation can have the effect of forcing young people to remain in abusive, exploitative homes while it criminalizes supportive, loving relationships they may chose to find outside the nuclear family.

It is an ongoing concern in the lesbian and gay communities that laws designed to regulate sexuality are enforced disproportionately to target those communities. To choose to make changes to legislation regulating age of consent and then neglect to correct the differential age of 18 rather than 16 for anal intercourse adds credence to that concern. This is an aspect of the existing age of consent legislation which has been found discriminatory and unconstitutional in several Canadian jurisdictions and has needed to be changed for some time. Failure to change this discriminatory aspect of the law in this legislation demonstrates the still pervasive and systemic discrimination faced by those in same sex relationships.

Criminalizing consensual youth sexual activity not only evades providing education in the schools, but it also puts a chill on youth counseling around matters of sexuality in three important spheres. First, fearing that such efforts could be interpreted as illegal, those who provide counseling for young people will avoid discussing sexual matters. Second, young people will likewise fear seeking such counseling for the same reason. Third, knowing that this law gives parents the opportunity to intervene with the power of criminal sanctions, young people involved in relationships with older people beyond the five year limit will not be willing to tell their parents about the relationship, thus eroding the availability of important counseling and support in the home. We stress that this would have a major effect not only for youth in the gay and lesbian communities, but also for heterosexual youth who may be seeking contraception or who may be in need of educational resources regarding their sexuality. Young women, for example, are further denied their ability to seek advice and contraception if they happen to be in a relationship where they are younger than 16 and engaged in a relationship with someone over the five year limit. Undermining counseling and support availability to young people will aggravate the health and social dangers they may face rather than provide protection for them.

By virtue of the fact that they cannot vote, young people are disenfranchised. This legislation shows further disdain toward them by making decisions for young people rather than consulting them. If the legislation is motivated by a desire to cater to the strong voting force of individuals and groups driven by a specific code of moral values or dogma, the legislation is itself a form of exploitation of young people.

The major focus of this submission has been on the importance we give to education of young people around sexuality rather than criminalization of their behaviour. We believe that other points to which we have made reference will be developed in other submissions by other groups, such as the Coalition for Lesbian and Gay Rights in Ontario and the Age of Consent Committee. We encourage your careful consideration of those submissions.

By focusing on the educational aspect we hope that we are offering alternative solutions to the concerns that have led to the introduction of this legislation. We consider this a more constructive approach than simply offering criticism. We encourage the government to allocate those resources it would expend on investigation, enforcement, and punishment through oppressive laws (which we believe focus on crimes which are victimless, anticipatory, and enforcing of dogma) toward comprehensive sex education in the schools designed to prepare young people for the joys, responsibilities, and challenges of life.

Please withdraw Bill C-22. Thank you for your consideration of our concerns.


Works cited:

Deveau, Scott “Canadian teens suffering in silence,” (Globe and Mail Update, posted 12/09/06), http://www.theglobeandmail.com/servlet/story/RTGAM.20060912.wteens0912/BNStory/specialScienceandHealth/home

Bell, Vikki, Interrogating Incest (London and New York: Routledge, 1993); Gittins, Diana, The Family in Question: Changing Households and Familiar Ideologies 2nd ed. (Basingstoke: Macmillan, 1993); La Fontaine, Jennifer, Childhood Sexual Abuse (Cambridge: Polity Press, 1990).