Underage Sex Legislation Raises Ethical Questions

Age of consent varies by country

Carol Dauda

Pierre Trudeau once said: “There’s no place for the state in the bedrooms of the nation.” More than four decades later, governments are still regulating sexual activity.

Prof. Carol Dauda, Department of Political Science, is looking at moral regulation in liberal democracies, particularly how governments in Canada, the United States and the United Kingdom determine the age of consent. Over the past two decades, all three countries have revised laws relating to the age when young people are considered legally competent to make decisions about their sexuality.

“Socially conservative groups were against sexual diversity and accepting anything beyond the ideal heterosexual families,” says Dauda. In Canada, these groups pushed to raise the age of consent from 14 to 18, but legislation was passed in 2008 making 16 the age of consent.

“It was couched in very secular terms,” she adds. “They renamed the ‘age of consent’ to the ‘age of protection.’ This was despite the fact that, since 1988, the law has protected young people under 18 from sexual exploitation.”

The Criminal Code also includes a “close-in-age” exemption that allows 14- and 15-year-olds to consent to sexual activity with someone who is less than five years older; for 12- and 13-year-olds, the exemption is two years.

Children under 16 were not considered competent enough to give consent, but “from birth to 15, there’s a great discrepancy in competence,” says Dauda.

While Canada was reviewing age of consent legislation, it was also reviewing the Young Offenders Act, which raised even more legal questions.

“Those same MPs who had argued that ‘children’ under 16 were not competent in relation to age of consent argued that they know exactly what they are doing when they commit crimes,” she says. “Young people can be found criminally responsible, but in sexuality, they’re not competent. They need to be protected. This manipulation of ideas of childhood competency for political ends denies young people agency at the same time as it lays blame.”

Organizations providing sexual health counselling to teens found themselves in a legal quagmire. The law required agencies to report child abuse involving sexual activity with minors. But what if a minor wanted birth control advice and her sexual partner was older than the close-in-age exemption? Would health-care workers have to report such cases and break their confidentiality agreements? This type of legislation could discourage young people from seeking advice, says Dauda.

While reviewing testimony on age of consent legislation in Canada, Dauda found “very gendered terms.” Words such as “she,” “her” and “girl” appeared twice as often as male equivalents. “It was really about protecting girls who don’t obey their parents, but why regulate all young people?”

The goal of the legislation was to protect young women from older men, she adds, but gay rights groups protested because it also affected young gay men who choose older partners. “There was no mention of gay teens in the legislation, but the law would affect them more,” says Dauda. In Canada, the age of consent for anal sex is 18, although courts in Ontario, Quebec and British Columbia have declared the law unconstitutional.

Gay rights groups in the U.K. pressured the government to lower the age of consent from 18 to 16. The MPs who supported equalizing the age of consent argued that young people’s sexual orientation has been decided by the age of 16 and they no longer need protection, says Dauda.

In the U.S., statutory rape laws vary by state. Under the Clinton administration, federal money went to states that strengthened these laws to help prevent teen pregnancy and promoted abstinence-only education, says Dauda.

California saw an increase in statutory rape cases as parents pressed charges against young men for having sex with their underage daughters. A conviction could have lifelong implications. A 17-year-old boy, Dauda points out, could be charged with statutory rape for having sex with his underage girlfriend and be listed as a sexual predator for the rest of his life. “You don’t get removed from those lists,” she says.

In all of these cases, age of consent laws were implemented to protect children from “stranger danger,” but the legislation was misguided, says Dauda, because child molesters are often relatives or acquaintances of the victim.