Ages of consent in North America

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Main article: Age of consent

The ages of consent for sexual activity vary by jurisdiction across North America. The specific activity engaged in or the gender of its participants can also be affected by the law. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, for example homosexual relations or close in age exceptions may exist and are noted when relevant.

Contents

[edit] Canada

Although Canada is a federation, the criminal law (including the definition of the age of consent) is in the exclusive jurisdiction of the federal government, so the age of consent is uniform throughout Canada. The age of consent in Canada is generally 14 (see below).

Where an accused is charged with an offence under

  • s. 151 (Sexual Interference) or
  • s. 152 (Invitation to sexual touching) or
  • s. 153(1) (Sexual exploitation) or
  • s. 160(3) (Bestiality in presence of or by child) or
  • s. 173(2) (Indecent acts),

or is charged with an offence under

  • s. 271 (Sexual assault) or
  • s. 272 (Sexual assault with a weapon, threats to a third party, or causing bodily harm) or
  • s. 273 (Aggravated sexual assault)

in respect of a complainant under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
{Criminal Code of Canada, R.S.C. 1985, c. C-46, section 150.1 (1), link continuously updated as Act is amended.}

There exists an exemption in cases where the partners are within two years of age of each other (Section 150.1(2)) or where the person who would be charged is under 14 (Section 150.1(3)). Section 153(2) mandates an age of consent of 18 years in cases where the other partner is in a "position of trust or authority".

Finally, section 159 of the Criminal Code sets the age of consent for anal intercourse at 18 years, with an exception if the two partners are married. This makes the effective unfettered age of consent for gay men 18. In the past, courts in Ontario (1995) and Quebec (1998) independently declared Section 159 of the Criminal Code of Canada (Anal Intercourse) unconstitutional.

[edit] History

The age of consent for heterosexual vaginal sex was 12 until 1890 when parliament raised it to 14. It remained there until 1985 when it was raised to 18 in cases where an adult partner is in a position of authority over a minor [1].

[edit] Current developments

The current Conservative government has introduced a bill to raise the age of consent in Canada to 16, while retaining the "close in age" exception allowing 14 and 15 year olds to have sexual relationships with individuals less than five years older than themselves.[2] This bill is still in committee as of December 2006, awaiting a third reading.[3]

[edit] See also

Criminal Code of Canada - Full text of the Criminal Code, from the Department of Justice website

www.justice.gc.ca - Canadian Dept. of Justice FAQ on current age of consent laws prior to proposed change

[edit] United States

The United States of America is a federation where the age of consent laws are made predominately at the state level, however there also exist federal age of consent related laws.

[edit] Federal Laws

{Chapter 117, 18 U.S.C. 2422(b)} forbids the use of the United States Postal Service or other interstate or foreign means of communication, such as telephone calls or use of the internet, to persuade or entice a minor (defined as under 18 throughout chapter) to be involved in a criminal sexual act. The act has to be illegal under state or federal law to be charged with a crime under 2422(b), and can even be applied to situations where both parties are within the same state, but uses an instant messenger program whose servers are in another state.[4]

{Chapter 117, 18 U.S.C. 2423(a)} forbids transporting a minor (defined as under 18) in interstate or foreign commerce with the intent of engaging in criminal sexual acts in which a person can be charged. This subsection is ambigious on its face, and only seems to apply if you transport a minor across state or international lines to a place where the conduct is already illegal to begin with. United States Department of Justice seems to agree with this interpretation.

{Chapter 117, 18 U.S.C. 2423(b)} forbids traveling in interstate or foreign commerce to engage in "illicit sexual conduct" with a minor. 2423(f) refers to Chapter 109A as its bright line for defining "illicit sexual conduct", as far as non-commercial sexual activity is concerned. For the purposes of age of consent, the only provision applicable is {Chapter 109A, 18 U.S.C. 2243(a)}. 2243(a) refers to situations where such younger person is under the age of 16 years, has attained 12 years of age, and the older person is more than 4 years older than the 12-15 year old (persons under 12 are handled under 18 U.S.C. 2241(c) under aggravated sexual abuse). So, the age is 12 years if you're within 4 years of the 12-15 year old's age, 16 under all other circumstances. This most likely reflects Congressional intent to not unduly interfere with a state's age of consent law, which would have been the case if the age was set to 18 under all circumstances. This law is also extraterritorial in nature to US Citizens and Residents who travel outside of the United States.

Although legislation tends to reflect general societal attitudes regarding male verses female ages of consent, Richard Posner notes in his Guide to America's Sex Laws;

"The [US] Supreme Court has held that stricter rules for males do not violate the equal protection clause of the Constitution, on the theory that men lack the disincentives associated with pregnancy that women have to engage in sexual activity, and the law may thus provide men with those disincentives in the form of criminal sanctions."[5]

[edit] Arizona

The age of consent in Arizona is 18. However there exist in the legislation defenses to prosecution if the defendent is close in age to the "victim" or a spose of the "victim". Note: these are not close in age exeptions but defenses at court. Arizona Revised Statute 13-1405(A)

13-1407 (Defenses)

  • B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.
  • D. It is a defense to a prosecution pursuant to section 13-1404 or 13-1405 that the person was the spouse (legally married AND cohabitating) of the other person at the time of commission of the act...
  • F. It is a defense to a prosecution pursuant to section 13-1405 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

[edit] Colorado

The age of consent in Colorado is 17, however there exist in the legislation close in age exeptions.

18-3-402(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: (d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or (e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim;

Colorado Revised Statutes website

[edit] Delaware

The age of consent in Delaware is 16. However, there exists in the legislation a close in age exeption.

Title 11 § 761. Definitions generally applicable to sexual offenses. (j) A child who has not yet reached his or her sixteenth birthday is deemed unable to consent to a sexual act with a person more than 4 years older than said child. Children who have not yet reached their twelfth birthday are deemed unable to consent to a sexual act under any circumstances. [Crimes and Criminal Procedure, Delaware Criminal Code]

[edit] Florida

The age of consent in Florida is 18, however close in age exemptions do exist.

800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age. (1) DEFINITIONS. As used in this section: (a) "Sexual activity" means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. (4) LEWD OR LASCIVIOUS BATTERY. A person who: (a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or (b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activitycommits lewd or lascivious battery, a felony of the second degree

794.05 Unlawful sexual activity with certain minors.-- (1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree...

Florida code, Title XLVI, Chapter 794

[edit] Georgia


[edit] Iowa

The age of consent in Iowa is 16 in most cases {§709.3(2), §709.4(2)b&c}. There also exists in the Iowa Code a close in age exception with a position of authority inclusion.

Section 709.4 states; "A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances..." 2(c) "The other person is fourteen or fifteen years of age and any of the following are true..." (3) "The person is in a position of authority over the other person and uses that authority to coerce the other person to submit. (4) The person is four or more years older than the other person."

Section 709.15 forbids, amongst other things, sexual contact between a school employee and a "...person who is currently enrolled in or attending a public or nonpublic elementary or secondary school, or who was a student enrolled in or who attended a public or nonpublic elementary or secondary school within thirty days of any violation..." There exist similar laws for those who provide or purport to provide mental health services {§709.15}, officers in charge of offenders and juveniles {§709.16}.


There is currently controversy regarding Iowa's laws forbidding a person convicted of violation of "sexual abuse" laws to reside within 2000 feet of a school, daycare center, or in home daycare provider. {§692A.2A} This is a lifetime ban. Critics of this law state that it effectively banishes those convicted from living in most Iowa cities. They point out that this law also applies to those unfortunate enough to be convicted on charges brought just outside of the current close in age exemptions, as well as those convicted interstate where age of consent laws may be lower than in Iowa.

Iowa Code lookup

Further reading:

[edit] Kentucky

  • 16 - Kentucky Revised Statutes 510.020(3)(a). General definition of age of consent.
  • Exceptions:
    • Kentucky Revised Statutes 510.120(d). It is "sexual abuse in the second degree," a Class A misdemeanor, for a person over 21 to have sex with anyone under 18 for whom he or she provides a foster home.
    • Kentucky Revised Statutes 510.130. This statute defines "sexual abuse in the third degree," a Class B misdemeanor. It includes a defense when (1) the other person's lack of consent is due solely to being younger than 16, (2) the person deemed to be incapable of consent is at least 14, and (3) the actor is less than 5 years older than the other person.

[edit] Massachusetts

  • 16 - MGL 265-23, felony.
  • 18 - MGL 272-4, felony. This law, however, specifies that the perpetrator initiate, and that the victim be "of chaste life."

[edit] New Hampshire

[edit] New Jersey

  • 16 years in general, 18 years if the partner is acting "in loco parentis", e.g. as a teacher or a guardian. [6] [citation needed]

[edit] New York

Under 17 years of age: New York law states that a person less than 17 years of age is legally incapable of consenting to sexual intercourse or other sexual contact. These laws are typically known as statutory rape laws.

If the victim is under 13, and the defendant is at least 18, this constitutes a 1st degree sexual offense. 1st degree crimes are considered the most serious ones and carry the longest penalties. If the victim is under 15 and the perpetrator is at least 18, this constitutes a 2nd degree sexual offense. However, if the defendant is less than 4 years older than the victim, this may constitute an affirmative defense. Affirmative defenses are those in which the defendant introduces evidence which negates criminal liability.York Penal Code Section 130.25

[edit] Ohio

  • Age of consent for sexual conduct is 16.[7]
    • Formerly, the age of consent for heterosexual conduct was 16, for homosexual male conduct was 21, and no age of consent was defined for homosexual female conduct. [7]

[edit] Pennsylvania

The Age of consent in Pennsylvania is effectively 16 years of age, however close in age exemptions do exist.

  • "A person commits a felony of the first degree when he or she engages in deviate sexual intercourse with a complainant ... who is less than 13 years of age; or who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other." ( Section 3123 of PA Code)
  • "Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other." (Section 18-31B-3122.1 of PA Code)
  • "A person commits a felony of the first degree when he or she engages in sexual intercourse with a complainant ... who is less than 13 years of age." (Section 18-31B-3121 of PA Code).

[edit] Texas

The age of consent in Texas is 17 {Texas Penal Code Section 21.11}. However , "...It is an affirmative defense to prosecution under this section that the actor...was not more than three years older than the victim and of the opposite sex...(and) did not use duress, force, or a threat against the victim at the time of the offense" and is not a registered sex offender {Section 21.11(b)}.

Section 21.12 further prohibits all sexual contact between an educator and student enrolled at the primary or secondary school where said educator works. No age is specified by the statute (thus, even if the student has reached consent age of 17, it is still a violation), and violations are a second degree felony.

[edit] Virginia

  • 18. There is debate over whether the age of consent for vaginal sex starts at 15, based on law 18.2-371: contributing to the delinquency of a minor. However, statewide laws forbidding anal and oral sex still apply statewide, even though they cannot be applied when the act is between consenting adults.[8] This means oral and anal sex can only be conducted by partners 18 and older.

[edit] Washington

  • 18 - Applies under three different sets of circumstances, enumerated in RCW 9A.44.096. Foster parents with their foster children; school teachers and school administration employees over their students; The third set of circumstances require all of the following situations occur in tandem: The older person is 60 months or more older than the 16 or 17 year old, the person is in a significant relationship as defined, and such older person abuses the relationship to have sexual contact.
  • 16 - Under all other circumstances.
  • Several have reported that the immoral communication with a minor statute exists and places the age of consent at 18 due to the inability to "communicate" to 16- and 17-year-olds about sexual activity. These reports have been alarming in nature, however they are completely anecdotal, and perhaps even urban legend. The Washington Court of Appeals, Division 1 decided in the case of State v. Danforth, 56 Wn. App. 133, 782 P.2d 1091 (1989) that such communication has to be for the purposes of committing an illegal act under RCW Chapter 9.68A. Danforth's conviction was overturned by that ruling. However, the Washington Supreme Court in the case of State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993) overturned the scope of the Danforth ruling (though not the result; Danforth would have still had his conviction overturned under the McNallie standard), applying the communication statute to encompass all sexual misconduct with a minor, not just those under RCW Chapter 9.68A, which deal mostly with illegal child pornography and prostitution. Due to these cases, it is clear that communications with 16- and 17-year-olds just for general sexual activity is legal, as long as such conduct discussed is not about illegal conduct or would be illegal in real life (such as the teacher/student circumstance, the foster parent/foster child circumstance, the significant relationship abuse circumstance, or asking for illegal pictures or attempting to bring such younger persons into prostitution).

[edit] Wyoming

  • 18 - Per Wyoming statute 14-3-105 et sq as interpreted by the Wyoming Supreme Court in State v. Pierson and State v. Moore. Since consent of a 16 or 17 year old (which was thought to be the age of consent for a different set of offenses) to non-commercial or non-threatening sexual activity is not an absolute defense to be charged under 14-3-105, and subject to "societal standards" and parental objection, this effectively makes Wyoming's age of consent to be 18.

[edit] Notes and references

  1. ^ Tories move to raise age of consent by Terry Weber, Globe and Mail, June 22, 2006
  2. ^ Tories move to raise age of consent, CBC News, June 22, 2006
  3. ^ Government of Canada (December 1st, 2006). Status of the Bill: Bill C-22. 39th Parliament - 1st Session. Retrieved on 2006-12-11.
  4. ^ United States v. Dhingra, which discusses the fact of incorporation of state criminal law into violation of 2422(b), specifically California statute, where Dhingra resided and committed the acts.
  5. ^ Posner, Richard (1996). A Guide to America's Sex Laws. The University of Chicago Press. ISBN 0-226-67564-5. The case cited is Michael M. v. Superior Court, 450 U.S. 464 (1981).
  6. ^ A history of sex with students, unchallenged, New York Times, October 10, 2006
  7. ^ a b Age of Consent: Ohio. Retrieved on 2006-12-12.
  8. ^ Virginia Appeals Court Reaffirms Age of Consent in Sodomy Case, Prof. Arthur S. Leonard, Aug. 1, 2006

[edit] Further reading

[edit] See also

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