Last Updated: December 11, 2009
There is often much confusion about the actual age of consent as well as the history and rationale behind these laws. Although the topic received a lot of media attention in 2008, when Canada raised the age of consent for sexual activity from 14 years of age to 16 years of age, the topic remains both confusing and controversial.
Canada has a long history of not allowing individuals to have sex with young persons even if the young person agrees to the activity. Historically this prohibition applied only to young girls and only to sexual intercourse. Over the years the law has changed so that generally it is now a criminal offence to engage in any kind of sexual activity with a young person under 16 years of age even if the young person agrees to the activity. This law applies to both sexes and to all forms of sexual activity from kissing to sexual intercourse. Exceptions and modifications to this general rule are discussed a little later in this article.
The reasoning behind this kind of law is that young persons are generally not considered to have the experience or maturity to decide whether to engage in sexual activity. Because young people mature physically and psychologically at different rates, setting a particular age under which a young person cannot consent to sex can be seen as somewhat arbitrary.
For over one hundred years the age of consent in Canada was not lower than 14. And until recently, with certain limited exceptions, the age of consent in Canada was never over 14. At times in Canada’s past, however, it was an offence to have sexual intercourse with a girl between 14 and 16 if she was “of previously chaste character”, and an offence to “seduce” a female under the age of first 18 and later 21 “under a promise of marriage”.
The Current Law
“Close in Age” Exceptions
While it is generally an offence to engage in any kind of sexual activity with a person under the age of 16, there are two exceptions that allow young people who are under 16 to engage in consensual sexual activity with another person who is “close in age” without breaking the law. Specifically...
- youths aged 12 or 13 may consent to sexual activity with someone who is less than 2 years older than them, and
- youths aged 14 or 15 may consent to sexual activity with someone who is less than 5 years older than them
In both these situations such consent is only valid if...
- the other person is not in a position of trust or authority to the young person
- the other person is not someone the young person is dependent on
- the sexual activity is not exploitive
While there are some situations where it is not an offence to engage in sexual activity with someone under the age of 16, there are also situations where the age of consent jumps to 18. A person who has a relationship of trust or authority with a young person, a person who the young person is in a relationship of dependency with or a person who is in a relationship that is exploitative of the young person cannot engage in sexual activity with the young person, even if the young person consents to it, unless the young person is at least 18 years old. Whether a relationship is exploitative depends on the nature and circumstances of the relationship including the age of the young person, the age difference, how the relationship evolved and the degree of control or influence that is exercised over the young person. The age of consent for exploitive activities such as prostitution or pornography is also 18 years old.
It is always important to remember that regardless of age, engaging in any kind of sexual activity without the consent of the other party is sexual assault.ISBN/ISSN number: 1918-1728