The Rights of Children Part Three: Child sexual exploitation and the age of consent

By Katherine Covell, PhD

This is the third article in a continuing series exploring the rights of the child. Dr. Covell is a professor of psychology at Cape Breton University, and the executive director of the Children's Rights Centre.

Illustration by Kim Rosen

No one wants to see children and young people sexually exploited. Youth, law enforcement officials, lawmakers and the public agree that all forms of sexual abuse and commercial sexual exploitation of children are unacceptable. There is, however, no such agreement on how best to protect children from sexual predators or how to balance protection with age-appropriate freedom for consensual activity between peers. The focus of disagreement has centered on Canada’s age of sexual consent law.

What is the age of consent?

The age of consent refers to the age at which the criminal law recognizes the legal capacity of a young person to consent to sexual activity. Since 1890, in Canada the age of consent has been 14 years. There are two exceptions. One exception is that 12 and 13 year-olds can consent to sexual activity with other young people no more than two years older than them. The other exception (described in section 153 of the Criminal Code) is that 14 year-olds are considered to be incapable of consent if the adult is in a position of trust or authority over them or in a relationship of dependency. A 14 year-old, then, cannot consent to sexual activity with a schoolteacher, health care or justice professional, athletic coach, or family member.

Arguments to increase the age of consent

There have been many criticisms of Canada’s age of consent law from a variety of sources. Church and family groups, such as the Evangelical Fellowship of Canada, have expressed their concerns. Not only are younger teens at risk of commercial sexual exploitation, they say, but also of sexually transmitted infections, early pregnancy, and early school leaving. The International Organization to End Child Prostitution, Pornography and Trafficking of Children (ECPAT) has argued that since most other western industrialized nations have a higher age of consent, usually 16 years, Canada has become a haven for child sex tourism and cross-border Internet luring. The Canadian Association of Police Boards has expressed similar concerns, noting that it is very difficult for 14-year-olds to demonstrate that they did not give consent. This makes it difficult for police to prosecute adults who sexually exploit children. These groups, among others, call for an increase in the age of consent to at least 16 to facilitate prosecutions and to reduce the trafficking and commercial sexual exploitation of children. It has been pointed out also that it is between ages 13 and 15 that young people are at highest risk of sexual exploitation, and that age 14 is the average of entry into the sex trade for Canadian children.

Arguments to keep the age of consent at 14 years

On the other hand, it has been argued that sexual activity in adolescence is normal and should not be criminalized. The Canadian Youth Sexual Health and HIV/AIDS 2003 report found that the average age of first sexual intercourse is 14.1 years for boys and 14.5 years for girls. Raising the age of consent, it is argued, will make sex go underground, increasing children’s vulnerability to predators and decreasing the likelihood that sexually active teens will use contraception or sexual health services.

The law

In response to such concerns and to a 2001 resolution of provincial Ministers of Justice urging an increase in the age of consent, the Liberal government introduced and passed Bill C-2, The Protection of Children and Other Vulnerable Persons Act. The bill came into effect in January 2006. Bill C-2 recognizes the vulnerability of children to all forms of sexual exploitation, and it recognizes Canada’s obligations under the United Nations Convention on the Rights of the Child. But Bill C-2 does not raise the age of consent. It creates new offences of voyeurism, redefines child pornography, reforms sentencing law, adds testimonial aids for child victims, and importantly draws a distinction between consensual and exploitive sexual activity.

Under Bill C-2, the focus is shifted from determining whether the child gave consent to whether the relationship between the child and the accused was exploitive. When hearing cases, judges are to determine exploitation by considering not only the age of the young person, but also the age of the accused, the evolution of the relationship between the accused and the young person, for example whether they met online in a chat room, and the degree of control or influence the accused had over the young person. It is expected that this Act will make it easier to prosecute adults who sexually exploit children, and make Canada a less attractive destination for Internet or tourist sexual predators. Bill C-2 should also impose less stress on the child victim by focusing more on the wrongful conduct of the accused adult than on whether the child gave consent. Nonetheless, this new legislation has not lessened criticisms and calls for raising the age of consent.

Critics of Bill C-2 say that the criteria for evaluating whether the relationship is exploitive are vague, subjective, and too open to interpretation. Moreover, critics argue, the bill will do nothing to lessen the rates of sexually transmitted diseases and pregnancies among young teens. Some members of the police and the public argue that only a complete ban on sexual activity prior to age 18 years will provide children all the protections they need.

At this time, the Harper government plans to introduce legislation to raise the age of consent to 16 years but with ‘close-in-age’ exemptions that allow 14 and 15 year-olds to engage in consensual sexual activity with those who are no more than five years older than themselves. This exemption prevents the criminal prosecution of peers who engage in consensual sexual activity. Not surprisingly, critics of both sides of the debate are unhappy with the proposed changes. What is most consistent with children’s rights?

A child rights approach

The Convention on the Rights of the Child explicitly states that every child —defining a child as a person under the age of 18 years — must be protected from sexual abuse (article 19) and from involvement in pornography and prostitution (article 34). The three principles of the Convention also have relevance here.

The principle of non-discrimination (article 2) tells us that protections must be in place for all children. Some children are particularly vulnerable to sexual exploitation and should be provided extra protections. Children with disabilities, children in institutions, and children who live and work on the streets are more frequently victims of sexual abuse and commercial sexual exploitation. This same principle also requires that every child be provided the sexual health information necessary to protect themselves. At this time there is wide variation in the amount, type, and timing of sexual health information given in Canadian schools.

The principle of best interests (article 3) not only requires that laws to protect children from sexual predators are the most effective possible, but also requires that their enforcement and related practices are in the best interests of children. No law is effective if not enforced. There is considerable evidence that those who sexually abuse children receive lesser sentences than those who sexually abuse or exploit adults. Offender accountability is often impaired by court decisions that give more weight to adult rights under the Canadian Charter of Rights and Freedoms, than to children’s rights under the UN Convention on the Rights of the Child. And prosecutions should require assistance to children and their families — especially those children who are working in the commercial sex trade.

The principle of participation (article 12) and the related rights to information (articles 13 and 17) are important guides for the provision of sexual health information. Every child has a right to information “aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health,” according to article 17.

Age-appropriate comprehensive sexual health education would do much to empower young people to protect themselves. Recent surveys indicate that children have surprisingly little knowledge about sexual activity, and many engage in high-risk behaviors. Comprehensive sex education delays initiation into sexual activity and promotes safer sexual practices among those who are sexually active. It is particularly important that children be taught to recognize and protect themselves from sexual predators, and to differentiate between love and exploitation. Gifts of cigarettes, alcohol, or clothing likely are not signs of love, but rather indicators of luring. Children should know this.

Education, not legislation

Ultimately, education may be more effective in protecting children from sexual predation than raising the age of consent to 16 years. In an historic meeting held in Canada in 1998, sexually exploited young people emphasized the importance of education to reduce vulnerability. It is not the law that would have protected us, these young people stated, but knowledge could have helped us to protect ourselves. Does law matter?

Law functions in two main ways — it criminalizes and it educates. Bill C-2 sends a clear message that exploitive sexual activity between adults and children is unacceptable, and if Bill C-2 is enforced, it should facilitate the criminal prosecution of those who exploit children. The new legislation proposed by the Harper government would send a message that sexual activity between teens and adults is unacceptable. Again, if enforced, the Harper proposal should facilitate the prosecution of adults who sexually exploit children. It is, then, difficult to argue that either piece of legislation is in itself in contradiction to the rights of the child. Both allow for age-appropriate consensual sexual activity and both provide some protections. Either is arguably an improvement over the 1890 age of consent law. But that is not enough. As law professor Anne McGillivray states, the law is not the problem. It is the lack of public and police vigilance and the lack of status afforded Canadian children.

Without changes in the way law is used, and without acknowledgement that children are independent bearers of rights rather than chattel, we can expect little change in the sexual exploitation of our children. The law may deter some sexual predators and may incarcerate others. But to fully protect children from sexual exploitation we may need to re-focus the discussion from the age of consent to how to respect our children’s rights to sexual health and healthy development. We need to consider why so many children are so vulnerable to sexual predators on the internet and on the streets. We must ask why our children have inadequate information to ensure their sexual health and safety. Only when we address such basic issues will we have a real chance of reducing the number of sexually exploited children.