Saturday, November 14, 2009

Consent and the Law

Consent is required in order to engage legally in any sexual act with another person. Consent laws have changed recently in regard to minors. The current ‘age of consent’ laws state that if you are under the age of 16 it is illegal to have sex with an adult.

There is a ‘close-in-age’ exemption which means that 14 and 15 year olds can have sex with someone who is less than 5 years older than them. If an individual is 5 or more years older than the 14 or 15 year old, consent can be allowed if the two are common-law partners or have been living in a conjugal relationship for a period of less than one year, and they had or are expecting to have a child as a result of the relationship. In addition, a person aged 12 or 13 can have sex with someone who is less than 2 years older than them as long as the relationship isn’t exploitative.

If you are under the age of 12 you cannot legally consent to sex and no person aged 12 or 13 years old will be charged with an offence of sexual interference, invitation to sexual touching or exposure unless there is a relationship of trust or authority with the complainant.

If you are under the age of 18, you can’t consent to anal sex, unless you are married, although unless there is a complaint made by one party, charges are unlikely.

There are special provisions in the Criminal Code which make it illegal to have sex in exchange for money (or other goods or services) if you are under 18, even if both people are under 18.

In all situations it is prohibited for someone in a position of trust or authority to have sex with a minor, or for sexual exploitation of a minor to occur.

Section 151 “Sexual Interference”

This section states that if one person is under 16, and the other is an adult, it is illegal for the adult to touch the minor in any way that could be considered sexual. This is a hybrid offence, so it could be treated as a summary* or indictable offence* depending on the seriousness of the incident.

Section 152 “Invitation to Sexual Touching”

This section prohibits an adult from asking for someone under 16 to touch anyone, including themselves, in a sexual way. This is also a hybrid offence.

Other Criminal Code provisions that could apply include s. 153(1) Sexual exploitation, s.160(3) Bestiality in presence of or by child or ss.173(2), 271, 272, 273 indecent exposure.

There is no defence of mistake of age. That means that it is not a defence to say that you thought that the other person was 16 years of age or older, unless you took all reasonable steps to find out how old the person really was. What ‘reasonable steps’ means is determined by the court.

Wilful blindness* (not asking a question because you’d rather not know the answer, for example, not asking someone’s age when they look quite young because you do not want to know if they are underage) or recklessness* (knowing there is a risk the other person is not consenting but continuing anyways) or self-induced intoxication* (getting very drunk) are not defences.

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