Sexuality and U
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Sexual Health

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Sex and the Law

 

Consent
Consent for any sexual activity must be freely given. Consent cannot be given by someone who is intoxicated, unconscious, or otherwise considered incapable of giving their consent. As well, consent is not considered to be freely given if it follows from threats to personal safety, or threats to harm others. Once sexual activity has begun, consent can be withdrawn at any time, and this can be indicated with either words or actions.  No always means no, even if you have initially agreed to sexual activity.

Age of Consent
The age of consent refers to the age at which people are able to make their own decisions about sexual activity. In Canada, the age of consent was raised from 14 to 16 in 2008, with the passage of the Tackling Violent Crime Act. However, some exceptions to this age of consent remain. 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.

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. Activists have also objected to the fact that anal sex is the only sexual activity in the Criminal Code that is limited to two consenting partners.

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, or persons who are depicted as being 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, or of someone who appears to be 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, or with a person who appears to be under 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.

Sexting
The practice of sexting refers to the creation and distribution of sexual images or text through the use of digital media such as cell phones, email, instant messaging or social networking sites. Some recent studies of sexting and youth focus only on the use of cell phones to send and receive information, while other studies include a wider range of digital media. Studies that report on the prevalence of sexting among youth often do not specify exactly what constitutes a sexually suggestive image or text. One person’s idea of sexually suggestive is not necessarily the same as another person’s definition. It is therefore difficult to draw conclusions about how many young people have engaged in sexting, when the concept itself is not clearly defined.

As noted in the previous section on child pornography, images that depict youth under the age of 18, or those who are depicted as being under the age of 18, engaging in sexually explicit activities, are considered to be child pornography. When young people under the age of 18 send sexual images of themselves or of a partner who is under the age of 18, there is a possibility that they could be charged with distribution of child pornography as defined by the Criminal Code. There have been cases of this happening in the United States, however, to date there have been no such cases in Canada. However, there remains the possibility that some cases of sexting involving youth under the age of 18 could be prosecuted under the current Criminal Code of Canada.

Internet Luring
In 2002, the crime of internet luring was added to the Criminal Code of Canada.  This means that it is against the law to use a computer to communicate with a person under the age of 16, or to communicate with someone believed to be under the age of 16, for the purposes of arranging or encouraging a sexual offence. For sexual offences involving prostitution, pornography, anal sex or sex with a person in a position of authority, the age of consent is 18.   It is not a defense that the accused believed that the young person was over the age of 16 or 18, depending on the offence, unless every effort was made to confirm this fact.  

HIV/AIDS Testing/Disclosure
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.

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.

Whether to disclose HIV status can be a difficult personal decision. The laws that relate to HIV disclosure have been tested in recent legal cases involving persons with HIV/AIDS and their sexual partners. The Supreme Court of Canada has stated that persons who are HIV positive have an obligation to disclose their status to their partners before engaging in sexual activity that poses a “significant risk of serious bodily harm”. While “significant risk” has not been clearly defined by the courts, it is generally acknowledged that having unprotected anal/vaginal intercourse, and sharing intravenous needles, represents a serious risk of HIV infection.

Rights to Health Care and Information
In 1989, Canada, along with 191 other nations, signed the UN Convention of the Rights on the Child. This international treaty states that all persons under the age of 18 are entitled to adequate health care and education, the right to be protected from abuse and neglect, and the right to participate in decisions that affect them. The UN Convention clearly states that children are entitled to appropriate health education, support and services. This means that it is your right to have access to sexual and reproductive health information and services. As well, it is your right to have a say in any treatment decisions that might affect you.

While the UN Convention of the Rights on the Child is an international agreement, it is up to the individual countries to ensure that their laws support the rights outlined in the document. In Canada, the federal government has defined basic principles of universal health care in the Canada Health Act. The Act states that all Canadians must have reasonable access to insured, medically necessary health care services. Health care is a provincial responsibility, but each province must follow the principles of the Canada Health Act. Both the Canada Health Act and the UN Convention on the Rights of the Child underline the rights of young people to adequate health information and services so that they can lead safe and healthy lives.

Paternal Rights and Responsibilities
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.

Consent to Medical Treatment
In Canada, the age of consent for medical treatment can differ across provinces and territories. It can also differ based on the nature of treatment and the place where treatment is offered. For example, in both Saskatchewan and Prince Edward Island you must be at least 18 years of age or married to consent to treatment in a public hospital.  However, there is no legislated age in these provinces for having a procedure such as an abortion in a clinic rather than a hospital. The province of Quebec is the only province that has legislated a specific age (14 years) as the age of consent for medical treatment. Those below this age must have parental or guardian consent, or seek the consent of the court, for medical treatment.

In provinces that haven’t legislated an age of consent, the concept of the mature minor applies. This means that a person can choose to have medical treatment, regardless of their age, if he or she is able to understand the information about the treatment, including possible risks and consequences. Medical treatment also includes the writing of prescriptions for medications and products such as contraceptives. Permission from your parents is not required if your health practitioner believes you understand the information given to you. You can contact your local public health department or sexual health clinic for information on age of consent in your province or territory.
Just as consent for sexual activity must be freely given, so must consent for medical treatment. No one can threaten or force you to consent to treatment that you do not wish to accept, as long as you are fully capable of understanding the implications of your decision.

Confidentiality
The information you share with your doctor will be kept confidential except in certain instances. For example, if your doctor has reason to suspect that you are being abused, or that you might harm yourself or others, he or she can share this information with others. If these conditions don’t apply, and your doctor wants to send your personal information to someone else, you should be asked to sign a consent form that clearly states what information is being shared and with whom. You do not have to consent if you don’t want your information shared. You also have the right to look at any notes or records that your doctor keeps about your healthcare.

Emergency Contraception
In Canada, the emergency contraceptive pill (ECP/ Plan B/ Morning After Pill) is available in pharmacies without a prescription from a physician. In every province and territory, except Saskatchewan and Quebec, emergency contraception is available on the open shelves, and it is not necessary to consult with a pharmacist before you purchase it.  In Saskatchewan and Quebec it is not kept on the open shelves, and so you must ask for it at the counter. In Quebec, girls under 14 cannot get the pill unless they have the consent of a parent or guardian. There is no such age restriction in Saskatchewan, however if you are a minor pharmacists can refuse to give you the drug if they think you don’t understand the information given to you. In these provinces, pharmacists are required to tell you about the drug, how it works and possible side effects. They are also bound by law to report cases of suspected sexual abuse for those under the age of 18. If you are over 18, it is a woman’s own decision as to whether or not she wants to report any form of assault or abuse.

Some pharmacists may have religious or moral objections to the use of ECP. If this is the case, they can refuse to give you the drug but they should direct you to other places where you can obtain it, such as nearby clinics, hospitals or pharmacies. You have the right to be treated with respect and sensitivity regardless of the personal beliefs of a pharmacist. Any record of your use of ECP is confidential and should not be made available to anyone else without your signed consent.

For more information on sex and the law:

Dept. of Justice. Canada.
Age of Consent to Sexual Activity: Frequently Asked Questions. (2011)
http://www.justice.gc.ca/eng/dept-min/clp/faq.html

Canadian Medical Protective Association
Consent: A guide for Canadian physicians. (2006)
http://cmpa.org/cmpapd04/docs/resource_files/ml_guides/consent_guide/pdf/com_consent-e.pdf

Media Awareness Network.
Criminal Code of Canada: Child Pornography and Luring of Children on the Internet – Summary. (2010)
http://www.media-awareness.ca/english/resources/legislation/canadian_law/federal/criminal_code/criminal_code_child.cfm

Canadian AIDS Society
http://www.cdnaids.ca/

Canadian HIV/AIDS Legal Network
Criminal Law and HIV Non-Disclosure in Canada: Questions and Answers. (2011)
http://www.aidslaw.ca/publications/publicationsdocEN.php?ref=1222

CATIE (Canadian AIDS Treatment Information Exchange)
www.catie.ca