New sexual consent law may confuse teens

The Globe and Mail, Tralee Pearce, May 2, 2008

When it comes to sex, 16 is the new 14. Under a law that went into effect yesterday as part of the federal government's omnibus crime bill passed in February, a teen under the age of 16 cannot consent to sex with an adult five or more years older.

The bill is intended to target sexual predators, but many youth advocates say that by focusing on age, the new law will confuse teens, make their sexual activities more clandestine and expose them to other risks, including abuse, early pregnancy and sexually transmitted infections.

"When you call it the age of consent, that's misleading to kids, who will think it's not permitted, that it's a crime to be sexually active before the age of 16," says Martha Mackinnon, the executive director of Justice for Children and Youth, a Toronto legal aid clinic serving low-income youth. "A huge concern is that kids won't seek medical help, won't seek counselling, they won't seek birth control.

"They won't go to a drug store and ask for condoms," she says.

It is not a crime for youth under 16 to engage in sexual activity, she points out.

"In fact, it's so much more technical than that it's hard for people to understand," Ms. Mackinnon says.

Among the exemptions, sex between peers under 16 is okay, as long as neither is in a position of authority and they are 12 or older. Likewise, under a "close-in-age" provision, if a person under 16 (and 12 or older) has sex with someone less than five years older, they can be considered to have consented unless the older person is in a position of authority.

But in that respect the law has not changed, says Ms. Mackinnon. In the case of, say, a 15- and a 19-year-old, if the 19-year-old is the skating coach, "it would be a crime, as it has always been."

"The fact that it's less than five years doesn't make it automatically legal. It just means that it's not automatically illegal."

Another area of concern for critics is that it remains illegal for anyone under 18 to participate in anal intercourse - critics say this targets gay male teenagers - even though the law has been struck down as unconstitutional by many provincial courts of appeal.

"It makes a discriminatory distinction among various types of sexual activity that are not supported on health or other objective grounds," says Kelli Dilworth, the interim executive director of the Canadian Federation for Sexual Health. "This distinction is a barrier to comprehensive sexual education. If people know that under the law they're not supposed to be doing it, do you think they're going to ask about it in the classroom?"

Many teenagers say age-of-consent laws have always been a mystery to them.

Upon hearing the news that the age was rising to 16 yesterday, Toronto high-school student Kirsten, 17, had to admit she "didn't even know there was a law about consenting" in the first place.

At first, she thought it meant sex was illegal under 16, until told by a reporter about exceptions, such as a sexual relationship with someone less that five years older. Kirsten said it's common for girls aged 15 and 16 to date men five or more years older - she did it at 16.

"It's still going to go on," says Kirsten, who asked that her last name not be used. "No one's going to tell on you unless it's a horrible relationship. But it might make you a little more cautious."

London, Ont., youth worker Heather Miko-Kelly agrees that most teens are unaware of the past or current age of consent. In a recent outreach program she ran, many teens told her they thought the age was 18.

"Generally, they don't care. How many underage drinkers are there? Drinking laws and consent laws - I think teenagers believe that these laws were made by adults, which they are, and they don't think they're applicable to them."

Still, the new law may act as a safety net for those aged 14 to 16 who slipped through the legal cracks because they often say they consented to sexual activity even in high-risk situations, Ms. Miko-Kelly says.

"I saw a lot of patterns in court cases," she says of her findings in her outreach efforts. "If a youth was 14, it was really difficult to prove that they were being exploited and used for prostitution or just exploited by an adult."

If a 14-year-old said they consented to sex, then generally the courts would say their hands were tied, she says. "Raising the age to 16 does protect the 14- and 15-year-olds in the court when they will only look at the clear case of their age. It does protect them in that way."