The Toronto-based Sex Laws Committee is among the groups concerned with Bill C-2, the federal government’s proposed child pornography legislation. The committee submitted a presentation Apr 18 to the parliamentary committee studying the bill. Here’s the text of its briefing paper.
Brief on Bill C-2,
an Act to amend the Criminal Code
(protection of children and other vulnerable persons)
Standing Committee on Justice, Human Rights, Public Safety
and Emergency Preparedness (38th Parliament, 1st Session)
Submitted and prepared by
Sex Laws Committee
April 18, 2005
The Sex Laws Committee fundamentally opposes the willful and deliberate neglect or mistreatment of children in whatever form that may take. Issues of child protection certainly deserve attention and the vulnerabilities that inhere within children’s social worlds rectification. However, we also state that the vigorous pursuit of child pornography legislation is a fundamentally wrong-headed approach which provides no real protection for children and moreover, may continue to obstruct a more complete understanding of the situation of children’s vulnerabilities and dependencies within larger social structures. A plethora of social science research suggests that children, primarily young girls continue to be victims of sexual assault (La Fontaine, 1990; Bell, 1993; Gittins, 1993). The 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. These cases overwhelmingly point to the vulnerabilities of young girls and women within the domestic family sphere and they point to the systemic changes that are required in order to alleviate structural inequalities around gender and age-related oppression and the composition of family forms. These cases of child abuse, neglect and victimization often occur without the involvement of any explicit images (photographs, video, etc.) concerning the sexuality of children. This point cannot be stressed enough. By continuing to pursue an agenda which disproportionately attends to cases of stranger assault and the creation of child pornography, the government actively occludes the identification and promotion of policy alternatives which can attend to the major issues stated above.
Furthermore, the committee finds that the current child pornography law and the legal changes proposed in Bill C-2, considered in the above light, neither promote child protection in any substantive form, nor attend to the underlying issues of inequality that serve to foster and promote the domestic violence situation. Moreover, the current law and especially its proposed changes will do much to distance policy makers from the social realities of family forms, and needlessly impinge on the rights of freedom of expression in the name of protecting children. When considered in this light, then, the argument that the protection of children takes precedence over the rights of free speech, falls into serious doubt.
Vulnerability of children and youth
Several of the proposed amendments to the Criminal Code contained in Bill C-2 are purported to address the vulnerability of children and youth in respect of sexual matters. However, there is no meaningful differentiation made between children 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 dealing with non-sexual matters. Young Persons may drive cars on the roads and highways of Canada or be tried as adults and imprisoned for committing serious criminal offences (including sexual assault). Yet, they may not legally consent to certain sexual activities or relationships because they are deemed not to have the capacity to give consent.
Nonetheless, there is a stated need in our society to identify a chronological age that equates with the capacity to give consent. The Criminal Code generally sets the age of consent at 14. However, 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 for a range of activities. 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 one who is between the ages of 14 and 18 will be criminalized, based on the assumption that this will protect against exploitation. This will have the effect of curtailing the age of consent even further. Unfortunately, the amendments contained in Bill C-2 will create more instances in which consenting sexual relations between a person under the age of 18 and someone over that age are criminalized. The result will be the infringement of the human rights of both parties, and in particular, the right of young persons to express their sexuality perhaps at a rather precarious time in their lives, when what they need most are systems of support and not punitive laws that restrict their freedom of expression or that censure basic consensual relationships. The argument that people between the ages of 14 and 18 are not adequately prepared in our society to assume the full range of sexual activities and decisions around sexuality points to existing inadequacies, education systems for example, that have not fully prepared young persons for life’s expectations in the sexual realm. Putting the emphasis on a variety and diversity of support systems would do much more to increase the awareness and knowledge base of youth between 14-18, thereby providing young persons with the ability to make their own informed choices about their bodies and sexual lives.
The new provisions, couched in the language of protecting young persons from sexual exploitation, are premised on the faulty assumption that tougher laws will offer protection. There is no substantiated basis for assuming that stronger laws actually will provide greater protection to children or young persons.
Exploitation and differences in age – amendment of s. 153 (sexual exploitation)
The proposed amendments to s. 153 of the Criminal Code, which deals 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) extends 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.
The very general tone of this new amendment once again negates that youth have relationships with adults and that these relationships are not inherently exploitative nor are they based on a de facto power imbalance. Moreover, it is necessary, if in fact this new amendment is included in the interest of protecting young persons, that young persons themselves are given an opportunity to define these relationships-as they see and understand them. What may result is a general mistrust of a system that is not in place to protect youth, but instead, to judge and punish their choices.
A new subsection (1.2) states that a judge may infer that a young person is being exploited in a relationship from the nature and circumstances of the 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. The new provision lacks a clear definition of “exploitation” and could potentially harm young people’s relationships due to an overzealous or undue application of the law.
The above-noted amendments to s. 153 that are contained in Bill C-2 will severely curtail the ability of young persons to legally consent to sexual activity. In particular, the assumption-still very much prevalent in society as a whole-that young people 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 still persists a widespread and erroneous belief that older, predatory persons lure young people into homosexuality, and this belief is founded on the idea that homosexuality is a result of a deliberate seduction. Moreover, it radically denies the fact that young persons themselves have a capacity for, exhibit and seek out sexual experiences, with persons of their own gender, or across genders, or both. The danger presented by the new Criminal Code provision 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. There is a plausible risk, under this new amendment, 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.”
* 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.
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 defenses, 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 defenses that are available to persons who are 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 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 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” defense. The new s. 163.1(6) creates an overly restrictive, two-tier defense. Paragraph (a) establishes a defense of “legitimate purpose related to the administration of justice or to science, medicine or art.” The effect can only mean a narrowing of the available defenses 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. These provisions enshrine a principle of pornography as harm which has consistently been impossible to prove in social science research. We note here that the Butler decision shifts the test of obscenity to a harm-based assessment, but that test ultimately resolves itself onto the dubious grounds of posing the question of community tolerance as a harm-based test, thus circumventing the need for evidentiary research findings. Also, it is inconsistent with the principle of innocent until proven guilty.
Bill C-2 should be amended to remove:
* 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;
* the proposed new s. 163.1(6) containing a defense 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 defense of “artistic merit or an educational, scientific or medical purpose” should be retained.)
Retention of an age of consent for anal intercourse that contravenes the 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 1995 by two judgments, in the Ontario Court of Appeal and the Federal Court of Canada, to contravene the equality rights provisions of the 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 judgments. 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.
Protection of witnesses under 18 -s. 486(1)
Bill C-2 leaves unchanged provisions in 486.(1) that a judge may exclude members of the public from a court room for all or part of the proceedings if, in the opinion of the judge, it would be in the interest of “public morals” to do so. The clause “public morals” is vague and archaic terminology which is left undefined and thus open to judicial opinion as to what constitutes “public morality.” We note that this overbroad and undefined term arbitrarily sets standards as to what constitutes public morals that remain out of the reach of appeal or censure.
* Bill C-2 should be amended to delete “in the interest of public morals” from Section 486.(1).
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).