To Raise or Not to Raise: An Age of Consent Analysis on Whether We Should Mind the (Age) Gap
Which side will you choose to solve this decade-long question?
Canada is one of the leading countries when it comes to age of sexual consent laws. As of 2008, the age of sexual consent is 16, with a close-in-age exception allowing 14 to 15-year-olds to have partners less than five years older, and 12 to 13-year-olds 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. Nonetheless, these laws are not perfect and need to be fixed.
“You Can Touch, but You Can’t Look: Examining the Inconsistencies in Our Age of Consent and Child Pornography Laws” by Mackenzie Smith argues that the age of consent should be raised to make the laws more consistent with child pornography laws. Conversely, Janine Benedet argues the potential harm of raising the age of consent in “The Age of Innocence: A Cautious Defense of Raising the Age of Consent in Canadian Sexual Assault Law”. The inconsistencies in Canada’s age of sexual consent and child pornography laws affect many people involved in sexual relationships, therefore I agree with Mackenzie Smith that these laws need to be revised in order to prevent false criminalization while protecting youths from harm.
In Janine Benedet’s “The Age of Innocence: A Cautious Defense of Raising the Age of Consent in Canadian Sexual Assault Law”, there are two main arguments that she focuses on. The first is that the age of consent should not be raised from 16 to 18 because it would exploit young people that currently are not subject to criminalization. For example, a perfectly consensual relationship between a 16-year-old female and her 24-year-old boyfriend would no longer be considered legal regardless of any circumstances because the eight-year age gap would not be covered under the close-in-age exception. The couple would either have to terminate their relationship until the female was of legal age or force the relationship into hiding so the male is not criminalized.
The second point Benedet makes is that the mere existence of official age of consent laws risks normalizing exploitative sexual relationships in which the younger individual is barely legal age and the other individual is substantially older. She believes that in cases such as this, age should be an influence on whether a relationship is considered exploitative notwithstanding of the fact that both participants are over the legal age of consent. Her main concern with this is that regardless of how minor or major the age disparity, when both participants are over the age of consent in a relationship, it releases the courts of their duty to investigate if coercion or an abuse of power or trust was involved in a case. Benedet’s only proposed solution to this is to abolish the age of consent and force the courts to investigate every case independently; however she notes that doing so could be construed as advocating for children being able to consent to sexual activity when it is meant to create one sexual assault law to protect everyone.
“the age of consent invites a sort of analytical laziness, and that … exploitation and power imbalances can be rendered invisible once the threshold is crossed” — Janine Benedet
Overall, I disagree with the position Janine Benedet holds against raising the age of consent. Her perspective on raising the age of sexual consent to 18 to become consistent with the legal pornography age is “… cautious precisely because [she] worr[ies] that the age of consent invites a sort of analytical laziness, and that … exploitation and power imbalances can be rendered invisible once the threshold is crossed”. This argument is weak because her point is subjective to the people who oversee each separate case and is not an accurate representation of the justice system as a whole. Furthermore, the sole proposition Benedet makes other than to just leave the current laws alone is to abolish the sexual age of consent laws entirely in order to create a new law that encompasses everyone. Yet, such a law would leave children vulnerable to sexual harassment and assault, and effectively make Canada a target for sex tourism because of a lack of restrictions when it comes to who can consent to what and at what age they can consent to it. In the end, Benedet fails to convince me that there is anything that can be done to fix the laws, only complicate and worsen them further.
Mackenzie Smith endorses raising the age of consent in “You Can Touch, but You Can’t Look: Examining the Inconsistencies in Our Age of Consent and Child Pornography Laws”. Her main focus is on the results that come from the inconsistencies between Canada’s age of sexual consent and child pornography laws Smith recognizes that age of consent laws are lower than that of pornography laws because, for youths, the possibilities of pregnancy or contracting sexually transmitted diseases are more prevalent and physical than the emotional dangers of featuring in pornographic media. She also notes that having child pornography laws set higher than the age of consent causes criminalization of older partners in consenting relationships where the underage youth sends their partner pornographic media of themselves. This heavily implies that no matter whose idea it is, the blame will always fall on the older partner.
Smith proposes two solutions to fixing the inconsistencies. The first is to realize that both laws are closely related and create one age of consent for everything, whether that be 16 or 18. Unfortunately, this can lead to a lack of legal protection for youths if set to the former or create similar issues to those first discussed in Benedet’s piece if set to the latter. Her second solution is to maintain the current child pornography law of 18 but create an exception that allows for a sexual privacy right in legal, consensual relationships. This means pornographic media can be shared between a couple and only becomes cause for prosecution when they leave the privacy of the relationship.
I agree with Mackenzie Smith because she offers multiple viable options for closing the gaps in Canada’s laws and explains the benefits, consequences, and technicalities for each. More specifically, I believe that her second solution of providing an exception to the child pornography law for those in legal consensual relationships could be very effective in today’s society as we struggle to find the balance between protection and freedom with sexuality. Smith seems to have a clearer path of solving the problem with clear statements, examples, and relevant statistics to support her ideas, compared to Benedet’s two-dimensional ‘leave it be or make it extreme’ view. Over all, Smith’s points are clear, factual, and do not make any wide generalizations, which is important when the subject matter can be as difficult as Canadian laws.
To conclude, Canada’s age of sexual consent and child pornography laws have inconsistencies that affect countless sexual relationships. Janine Benedet warns about the current and future setbacks that may be caused by not carefully considering all options, such as false criminalization of older partners and a lack of protection for youths in sexual relationships and wonders whether it is worth it to make changes, whereas Mackenzie Smith offers several solutions to how we can achieve more consistent laws while heeding Benedet’s warnings. Ultimately, I agree with Mackenzie Smith’s solution to keep the laws the same but with an amendment to allow sexual privacy within relationships between 16–18-year-olds and their older partners. Moving forward in my research, this idea will be kept at the forefront and be the solution to either beat or further reinforce.
