The Age of Innocence: A Cautious Defense of Raising the Age of Consent in Canadian Sexual Assault Law

Abstract

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. Tis change was motivated, in part, by several high-profile cases of Internet "luring" of younger teenagers. Tis article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. Te justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give a valid consent to sexual activity. Te article examines the arguments made by groups who opposed raising the age of consent, but finds those arguments unconvincing. It concludes by cautiously supporting a higher age of consent. Te higher age limit captures exploitation of young people that was not subject to criminalization in the past. However, a formal age of consent may also normalize exploitative sexual relationships that contain a significant age disparity, where the younger party is only marginally over the age of consent. It is argued that age should be a factor in determining whether a relationship is exploitative even where both parties are over the age of consent. Te fact that both parties in a relationship are over the formal age of consent should not relieve the courts from the responsibility to consider whether there was coercion or an abuse of power or trust.