Mind the (Age) Gap: Why Canada’s Sexual Consent Laws Aren’t Preventing Legal Trips & Falls
There are cracks in the Canadian law that need to be filled.
It is said that love knows no boundaries, but for some people, it does when it comes to the law. The intent of such laws is to protect youths from being exploited or harmed and punish those who do the exploiting or harming. In Canada, these are known as the Age of Consent to Sexual Activity laws. In 2008, the age of sexual consent became 16 years old, with a close-in-age exception that allows 14 and 15-year-olds to have partners less than five years older, and 12 to 13-year-olds are allowed to have partners less than two years older. In addition, any sexually explicit photo, video, or audio of a person under 18 is considered child pornography.
These laws are not without flaw, and unfortunately there are many inconsistencies that lead to the criminalization of couples whom share intimate photos with each other. This can be solved by keeping the laws as they are but adding a right to sexual privacy for those aged 16 and 17 in legal, consensual relationships with partners over 18. Moreover, there are loopholes that cause sexual assault cases between couples with distinguished age disparities to become overlooked due to the assumption of legal consent after 16. This can be fixed by raising the legal age of consent from 16 to 18 and implement another close-in-age exception for 16- and 17-year-olds that caps having partners 8 years older. Doing so will help protect growing teenage minds from exploitation of much older partners. Considering these two problems and their proposed solutions, it can be realized that Canada’s Age of Consent to Sexual Activity laws need to be revised in order to better protect youths.
It seems counterintuitive for a couple to be able to have contact physically in person but not visually over electronics. A prime example of someone criminalized with the possession of child pornography but not for sexual contact with a youth was Eric Rinehart from Indiana in 2007. Rinehart was 32 and involved in two relationships with one woman aged 16 and another aged 17, which at the time were considered legal relationships. The point that made the relationships criminalizable was when Rinehart decided to use his camera to take consensual sexually explicit photos and videos of each woman. It is unclear how this information came to the light of the authorities, but he was charged with two counts of producing and one count of possessing child pornography. He was sentenced to 15 years in federal prison. During the ruling, the judge of the United States District Court for the Southern District of Indiana clearly stated his distaste for the severity of the sentence he was forced to impose due to the laws.
It is important to remember that all parties were willing to participate, and the grand jury acknowledged that there appeared to be no intent of sharing the media outside of the relationship. Despite this, Rinehart was still convicted. The age disparity in the relationship is not the issue; it is legal and consensual for the couple to ‘touch’, but not for them to ‘look’. Situations like these are not uncommon, although often not openly talked about, and although this case is not local, Indiana’s age of consent laws are the same as Canada’s. These situations could be easily solved with a solution proposed by Mackenzie Smith in her law review “You Can Touch, but You Can’t Look: Examining the Inconsistencies in Our Age of Consent and Child Pornography Laws”. Her review discusses various examples of what effects the law’s inconsistencies have caused and what changes could have prevented them. One of the changes she proposes is an addition of a right to sexual privacy for relationships under the age of consent laws. What this means is that taking intimate photos or videos would be legal as long as they stay within the confines of the relationship. Once the media is sent to external parties, then is it seen as child pornography and criminalizable. Such a solution would protect countless others with circumstances like Eric Rinehart from becoming criminalized for living their personal lives and would allow more time for the courts to investigate deeper into sexual abuse or exploitation cases in relationships between legal age of consent partners.
“proof of age serves as a proxy for proof of nonconsent”
Where one issue with the age of sexual consent laws causes unfair criminalization in consensual relationships, the other issue is the lack of criminalization that comes to those in exploitative relationships. Oftentimes, sexual assault cases are omitted because of the assumption that if both parties are over the legal age of consent and in a relationship, it must mean that any sexual happenings are consensual. Janine Benedet wrote a law review titled “The Age of Innocence: A Cautious Defense of Raising the Age of Consent in Canadian Sexual Assault Law” in which she notes that it is more difficult to prove someone is nonconsenting than it is to prove whether they are of legal age. She states that the laws “can work to obscure male violence because proof of age serves as a proxy for proof of nonconsent”.
Take into account the case of R v. Galbraith from 1994: a 27-year-old man charged with sexually exploiting a 14-year old girl whom had run away from home. At the time of the occurrence, the legal age to consent to sexual activity was 14, however the relationship had to be further examined to determine if it was a relationship of dependency. This aspect was called into question because Galbraith provided the girl with shelter and food, and in exchange, the girl would have intercourse with him because she felt “obligated” and that she “wouldn’t be able to stay there for much longer” if she refused. In the end, the courts decided that there was not enough evidence to convict Galbraith of sexual exploitation under a relationship of dependency because the girl could have left at any point and returned home.
The courts, however, failed to reflect on each parties’ pasts. At the time of the relationship, Galbraith was on probation for sexually assaulting his two younger cousins, and the girl had a history of sexual abuse from her father. Mixed together, these two facts attest to probable exploitation and that it was possibly not as feasible for her to return home as thought. Under modern Canadian age of consent laws, the girl would be protected as the current age is 16. However, there are similar cases that to this day let down youths looking for protection under the law. Fourteen- and sixteen-year-olds are really not that different; both have easily influential developing minds that require nurturing. By raising the age of sexual consent to 18 years of age and implementing a close-in-age exception for 16- and 17-year-olds, the courts can assume an imbalance of power to forbid sexual contact with partners over 8 years older straightforwardly, and can focus more in the fewer cases arisen from close-in-age laws to determine the level of consent and relationship of dependency.
Overall, Canada’s Age of Consent to Sexual Activity laws need to be revised to better protect youths as cases like Rinehart’s and Galbraith’s are more common than one may realize. The two proposed solutions, creating a right to sexual privacy and raising the age of consent, both have positives and negatives. Creating a right to sexual privacy protects those in consensual relationships from being criminalized for sharing intimate photos between each other but does not necessarily offer additional protection to those whom are being exploited in the relationship. Raising the age of consent to 18 and having a close in age exception that limits sexual relations between 16- and 17- year-olds with partners over 8 years older protects youths from exploitation from partners much older, however, could cause existing legal, consensual relationships to become illegal and therefore criminalizable.
I lean towards the first solution because it protects legal, consenting couples from criminalization and would not result in criminalization of those in pre-existing relationships like the second choice. Additionally, I am unsure whether the core issue of protecting the innocent and criminalizing the guilty would be solved with the second solution. Perhaps the real issue is the judgement, or lack thereof, that judicial courts use when examining these cases. If the verdicts relied less on old laws and more on deep human judgements, could the justice system reach total equilibrium? Maybe this is something worth investigating as our world evolves and our society grows angry.
