Home — Adults — Sex — Sex and the Law

Sex

Sex and the Law

What is the age of consent for sexual activity?

The age of consent refers to the age at which a people are able to make their own decisions about sexual activity. In Canada, the age of consent was recently raised from 14 to 16, with some exceptions that still stand. Unmarried persons under the age of 18 cannot consent to anal sex. Someone under the age of 18 cannot legally consent to have sex with a person in a position of authority such as a teacher, health care provider, coach, lawyer or family member. As well, 12 and 13 year-olds can consent to have sex with other youth who are not more than 2 years older than themselves. There is also a provision called the 5 year peer group provision, which means that youth aged 14 or 15 will be able to consent to sex with partners who are no more than 5 years older than themselves. Many worry that raising the age of consent deters youth from asking for sexual health information and treatment. Advocates of sexual rights for youth argue that criminalizing sexuality is not an effective way to deal with issues of abuse and exploitation, and that raising the age of consent only forces youth to neglect their sexual health for fear of legal consequences.

Is the age of consent different for anal sex?

The Criminal Code of Canada states that persons under the age of 18 cannot engage in anal intercourse except if they are legally married. For those over the age of 18, anal intercourse is legal only when it is practiced in private between 2 consenting adults. This section of the Criminal Code has been declared unconstitutional by federal courts of appeal, as well as by courts of appeal in Ontario, British Columbia and Quebec. The courts in this case ruled that a higher age of consent for anal sex, than for vaginal sex, discriminated against gay men and violated the Canadian Charter of Rights and Freedom. As long as the Criminal Code remains unchanged, the possibility that people could be charged with this offence still exists. Therefore, gay rights activists are lobbying to have a uniform age of consent for both anal and vaginal sex.

What types of material are considered to be child pornography?

The Canadian Criminal Code defines child pornography as pictures, films, videos or other visual representations that show persons under the age of 18 engaged in sexually explicit activities. These images can also be considered pornographic if they show the sexual organs or the anal region of a person under 18 for expressly sexual purposes. Child pornography can also include written or audio material that describes or records sexual activity with a person under the age of 18. It is an offence to possess, create, advertise or distribute any material that meets this definition of child pornography. It is also illegal to counsel or encourage illegal sexual activity with someone under the age of 18. Illegal sexual activity could include anal sex, sex with a person of authority, or sex for the purposes of prostitution.

The interpretation of this definition of child pornography is not always clear cut. For example, it is legal for youth 16 and over to engage in sex but it is illegal for them to send pictures of themselves in sexual situations over the internet. However, pictures of nude children that have no sexual intent, such as pictures a parent might take of a child in the bath, are not considered pornographic. The definition of sexually explicit is not clearly stated in legislation and is open to interpretation. Photographs or images that some would define as artistic could be labeled as sexually explicit by others.

The concept of advocating illegal sexual activity can also cause confusion in certain situations. Some might argue that educational materials that counsel gay youth on safe sex practices are actually forms of child pornography, since they advise youth under 18 on ways to safely practice anal sex. Sexual health material that describes sexual practices, and is aimed at youth under 18, could be interpreted as pornographic by some. These are examples of extreme interpretations of the concept of child pornography but they highlight some concerns that sexual rights advocates have with how the legislation could be applied.

Can I get tested for HIV/AIDS without giving my name?

If you want to get tested for HIV/AIDS, and you don’t want to give your name, you can choose anonymous testing. When you go to get tested you do not have to give your name. You are given a unique code which you then use to identify your results. You may be asked information about your age, gender or ethnicity, but this is for general statistical purposes and is not connected with your name. When you receive your test results they are not recorded on your health record. Only you can decide if you want to give this information to a health care professional.

Anonymous testing is usually offered at clinics and by some health care providers. All provinces have HIV/AIDS testing sites but at the present only 8 provinces offer anonymous testing. Each province and territory has a HIV/AIDS hotline that you can call to locate HIV testing sites near you. (www.aidssida.cpha.ca/english/links_e/index.htm).

If you have a positive test result your sexual partners need to know that they might have been exposed to the virus. You can choose to do this yourself, or you can contact a public health nurse with information about your partners. Your sexual partners will be contacted and advised to be tested for HIV/AIDS, but your name will not be mentioned.

What are the rights and responsibilities of a father who is under the age of 18?

When a man fathers a child at any age he is financially responsible for that child until the child turns 19. If a man is legally acknowledged to be the father of a child then he has parental rights for custody and access to the child. When a child’s birth is registered the name of the father must be recorded for paternity to be recognized. If a woman does not give the name of the father when the birth is registered, and a man wants to be acknowledged as the father, then there are other ways of establishing paternity. The biological father can make a formal application to the courts to be recognized as the father of a child. It might be necessary to use genetic testing to prove who the father of a child is. If a man denies he is the father of a child, the mother can ask the courts to recognize him as the father. Once paternity of a child is established, then the rights of the child to financial support must be met, and the rights of the father to have access to his child must also be considered.

Sex

Sex and the Law

Related Links: