There are no easy answers to the complex question of when a minor is old enough to have sex and with whom. (Stock photo from iStock/Getty Images).
When are you old enough to give consent to having sex and with whom? That is a question that has been debated for ages in law.
A recently released case, coming out of the Ontario Court of Appeal, examined the question once again.
The case dealt with a 21-year-old man who had a nearly one year relationship with a 15-year-old girl, which included sex. The relationship was labelled as having been positive by the court.
The girl was found to have initiated sex, although her boyfriend was reluctant, because the age of consent is 16 in Canada.
See: Sexual Assault FAQ
At trial level, the young man was found guilty of sexual assault, but the judge wouldn’t convict him, because she found neither coercion nor criminal intent, and found that the man’s rights were violated. However, the Crown appealed and Justice Bruce Glass decided the ban-on-consent law did not violate the man’s rights.
The young man appealed, claiming that the age-gap law violated his s. 7 Charter rights. However, the Ontario Court of Appeal agreed with the Crown’s arguments – that firm age limitations are for the protection of children – and he was sentenced.
The Criminal Code of Canada, in s. 150.1 bans raising consent as a defence to sexual assault for a person who had sex with a minor when:
- The minor is between the ages of 12-14, where the person is two years older or more.
- The minor is between the ages of 14-15, where the person is five years older or more.
- The minor is over 16 but under 18, where the minor was in a relationship of trust with the person with whom they had sex.
If the law considers the child old enough to have sex, and there was clear consent, why bother putting an age ban on it?
Yes, the Crown brought forth the argument that it is for the child’s protection, but don’t adults make the same mistakes as some of these children? Are there no 25-year-old women who go off birth control, have abortions, and fail to tell their partner, just like the 15-year-old girl did?
Then again, there is something to be said for life experience. Children are amongst the most vulnerable, because they don’t have the life experience of adults, and are more likely to get hurt.
So while a 25-year old may make the same mistakes as a 15-year old, if consequences arose, he or she would be in a better place to handle them.
Then, of course, there is yet another school of thought, which says children under the age of majority should not be legally allowed to have sex at all.
The point here is: there are no easy answers to the complex question of when a minor is old enough to have sex and with whom.