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Stephen Harper’s agenda for criminal justice reform is like a bad cover version of an old song that was never a big hit to start with. He wants mandatory minimum sentences despite the well-established criminological principle that the severity of punishment will not deter crimes. He also wants to get rid of house arrest, even though we’ve been working with this sentencing option for less than 10 years. It was introduced in 1996 in response to the fact that our rate of incarceration had risen to the fourth-highest in the world.
There is little evidence that offenders have been committing serious crimes while under house arrest, but Harper’s hit parade has no room for innovation. But the real oddity in his agenda is his proposal to raise the age of consent from 14 to 16.
Harper has really taken to time travelling with this proposal. Extending the criminal law’s reach deeper into the realm of adolescent sexuality makes little sense other than to satisfy Helen Lovejoy’s inane battle cry to “think of the children.”
Reasonable people will disagree about when a child becomes an adult for the purpose of sexual experimentation. In Switzerland, the age of consent is 18. In Japan it’s 13. The 2003 Canadian Community Health Survey indicates that the average age for losing your virginity in this country is 16.5, but an average age tells very little about the actual sexual patterns and desires of kids younger than the average.
I’ve known lots of people who started playing around with sex at 12 or 13 in a healthy but clumsy manner, and I’ve also known many 12- and 13-year-olds who seem utterly incapable of understanding the significance and consequences of sexual play. Who knows? Fourteen may not be an entirely realistic age limit, but drawing lines in the sand is always somewhat arbitrary.
At common law, the age of consent was 10. In Victorian times it was raised to 14 in most jurisdictions, including Canada. Until 1988 it was also an offence in this country to have sexual intercourse with a “female person” between 14 and 16 if she was “of previously chaste character.”
Until the 1970s, the law relating to sexual conduct was still fairly intrusive. There were prohibitions against buggery, sodomy, gross indecency and the seduction of young women under 18. We have largely abandoned the Victorian mission of social engineering, and in 2006 I think it can be said that there is a great deal of sexual liberty.
Only a true anarchist would believe there should be no official, legal limits on the pursuit of sexual gratification. Some limits will be necessary to protect the vulnerable.
But there’s absolutely no evidence that the current rules controlling youth sexuality are inadequate.
Since 1988, our Criminal Code has stipulated that anyone under the age of 14 is incapable of consenting to any sexual activity. But there are some importance nuances to the under-14 prohibition. Section 150.1(2) lowers the age of consent to 12 as long as the sexual partner is under 16 years of age is less than two years older and c) is not in a position of trust or authority. Further, section 153 raises the age of consent by prohibiting any sexual touching with people under the age of 18 if you are in a relationship of trust or authority. There are also crimes of “luring a child by means of a computer system” and child pornography, and these offences define a child as being under 18. The criminal law justifiably extends its reach to 18 when there is proof of exploitation or harm.
Harper’s proposal is clearly symbolic and meaningless. Despite legitimate concerns about teen pregnancy and sexually transmitted diseases, there is no rational reason for invoking the criminal law and the threat of prison when a 14- or 15-year-old has sex with an older person with no evidence of exploitation or domination.
Harper may prefer that his children wait until 16, and so may many parents. But it is not the model of good parenting when you need to rely upon the criminal law to enforce your preferences.
Alan Young is a professor of law at Osgoode Hall. His column appears every other week.
