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] Bermuda (Crown Dependency of the UK)

In Bermuda, the age of consent is 16 for heterosexual and female homosexual acts, while the age of consent for male homosexual acts is maintained at 18 - Under review[citation needed].

[edit] History

Male homosexual acts were decriminalised in Bermuda since 1994 where the above conditions were set[citation needed].

[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), s. 152 (Invitation to sexual touching), s. 153(1) (Sexual exploitation), 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), 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 a close in age 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 Sexual exploitation mandates an age of consent of 18 years in cases where a person is in a position of trust;

"Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person..." {Sect153}

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 discriminates against unmarried persons.

Section 159 is also a somewhat effective unfettered age of consent for gay men 18 as this is the only method of penetrative intercourse available for gay males.

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.[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] Mexico

The unfettered age of consent in Mexico is 18. In Mexico, criminal legislation is shared between the Federal Government and regional states. Federal law may allow relations between young persons as low as 12, however, there may be local state laws that override the federal law.

[edit] Federal Law

Article 261 of the Federal Penal Code of Mexico (PDF) states that: ”Whoever, without the purpose of reaching copulation, performs a sexual act in a person under 12 or in a person that has no capacity of understanding the meaning of the act or that for any reason cannot resist, or demands that the act is performed, will be punished with a term of 2 to 5 years in prison”. If the offender uses moral or physical violence, an extra half term is added to the initial time.

Article 266 refers to the previous article 265, which covers the rape of adults in general and establishes a term of 8 to 14 years in prison for sex obtained through physical or moral violence. Article 266 then states that: "It is equivalent to rape and will be punished with the same penalty: (1st Clause) – who without violence performs a copulation with a person under 12”. The 3rd Clause of this article punishes with the same penalties also “the vaginal or anal introduction of objects, without violence and with lascivious goals”, in a person under 12 or in a person that has no capacity of understanding the meaning of the fact, or for any reason cannot resist. If any of the aforementioned acts is performed with physical or moral violence, the sentence is raised in up to a half.

A further article, 266 Bis, determines an extra penalty of up to a half under certain circumstances – (a) when there are multiple offenders; (b) when the offense is committed by a parent, legal guardian, step-father or “companion” (amasio) of the mother; (c) when there is an abuse of authority of someone as a civil servant; (d) when the crime is committed by a person who has the minor under his or her custody, guard or education, or yet through the abuse of trust.

There is another crime in Article 262 for consented sex with adolescents aged 12 to 18, when consent is obtained through deceit. The penalty is 3 months to 4 years in prison. This crime, however, is only prosecuted through a complaint of the minor or his/her parents or legal guardians, as determined in Article 263.

Further reading:

[edit] Local laws

[edit] Federal District of Mexico City

The age of consent in the Federal District of Mexico City is 12, and the overall criminal legislation of Mexico’s capital is close to that of the federal law regarding this subject, although tougher in some aspects – higher penalties and broader definitions.

According to the Estatuto del Gobierno del Distrito Federal (PDF)(in Spanish) (Government Statute of the Federal District), Article 42, Clause XII, the District’s Legislative Assembly has powers to legislate in criminal law.

Article 175 of the Federal District Penal Code refers to the previous Article 174, which stipulates a term of 6 to 17 years of prison for the rape of adults, while defining copulation as “the introduction of the penis in the human body through the vagina, anus or mouth”. Article 175 (violación) then states that: "It is equivalent to rape and will be punished with the same penalty: (1st Clause) – who performs a copulation with a person under 12 years of age or with a person that has no capacity of understanding the meaning of the act or that for any reason cannot resist”; The 2nd Clause defines as committing the same crime whoever “introduces in the vagina or anus any element, instrument or any part of the human body different from the penis”, in relation to these same persons.

Article 177 covers “sexual abuse” and punishes other acts referred as “unintentional” acts –“who without purpose of reaching copulation, performs a sexual act with a person under 12 or a person that has no capacity of understanding the meaning of the act or that for any reason cannot resist it, or that demands that such act is observed or performed, will be punished with 2 to 7 years in prison”.

In both Articles (175 and 177), there is an extra half term in case of physical or moral violence. And according to Article 178, there is also a punishment of an extra two thirds of the term under the same circumstances foreseen in Article 266 Bis of the Federal Law (see above), added by two new circumstances – (clause V) when the victim is inside a private vehicle or a public service vehicle; and (clause VI) when the crime is committed in a desert or isolated place.

Finally, there is a crime called estupro stipulated in Article 180, which refers to consented sex with adolescents aged 12 to 18, when consent is obtained through any means of deceit. The penalty is 6 months to 4 years of prison. This crime needs a complaint (querella) to be prosecuted.

[edit] United States

The United States of America is a federation where the age of consent laws are made predominantly 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 ambiguous 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 travelling 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 defendant is close in age to the "victim" or a spouse of the "victim". Note: these are not close in age exceptions 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 offence 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 cohabiting) 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 unfettered age of consent in Colorado is 17, however there exist in the legislation close in age exceptions which allow those at least 15 and less than 17 to engage in acts with those less than ten years older.

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 exception.

Title 11 § 761. Definitions generally applicable to sexual offences. (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. By law, the exception permits an adult under the age of 24 to engage in legal sexual activity with a minor no younger than the age of 16.

800.04 Lewd or lascivious offences 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

The age of consent in Georgia is 16 as specified by Section 16.6.3 of the Criminal Code of Georgia.

[edit] Idaho

The age of consent in Idaho is 18 in ordinary circumstances with no close in age exception as specified in the Idaho statutes 18-1601.

[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}.

[edit] Iowa's "banishment law"

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

Iowa: further reading:

[edit] Kentucky

The age of consent in Kentucky is 16. Section 510.020 of the Kentucky Revised Statutes deems a person unable to consent if he or she is less than 16 years old. It is a defense however if the "victim" is at least 14 and the actor is less than 5 years older {510.130(b)}.

Additionally, under 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.

[edit] Massachusetts

The age of consent in Massachusetts is 16 as specified by Chapter 265, Section 23 of the General Laws of Massachusetts, which states;

"Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age shall ... be punished..." MGL 265-23.

However, Chapter 272, Section 4 sets another age of consent at 18 where the "victim" be "of chaste life" and the perpetrator induces them.

"Whoever induces any person under 18 years of age of chaste life to have unlawful sexual intercourse shall be punished" MGL 272-4.

[edit] Missouri

The age of consent in Missouri is 17, however there exist close in age exceptions which allow those under 21 to engage in sexual activity with those 14 or older.

This legislation applies to both sexual intercourse (RSMo 566.032 and RSMo 566.034) as well as "sodomy", or "deviate sexual intercourse" (RSMo 566.062 and RSMo 566.064)

It should be noted that mistake as to the age of the victim may be a defense in some circumstances as defined in RSMo 566.020. Missouri repealed the "sodomy" sex laws in July 2006 between same-sex adult partners [1] and replaced with the exceptions as shown above.

[edit] New Hampshire

The age of consent in New Hampshire is 16. However a close in age exception exists where a person may "engage in sexual penetration" with a person 13 years old or older and younger than 16 if their age difference is less than 3 years. However if the partner is acting "in loco parentis", e.g. as a teacher or a guardian, the minimum age is 18. NH Criminal code Section 632-A:3 and Section 632-A:2

[edit] New York

The age of consent in New York is 17.

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.

New York Penal Code Section 130.25

[edit] North Carolina

The age of consent in North Carolina in general is 16, though no school faculty member can have any sexual activity with any student more than 4 years their junior except when married to the person {§14‑27.7}. Any sexual intercourse with a 13-15 year old is prohibited unless the defendant is less than 6 years older than the victim except when married to the person {§14‑27.2, 14‑27.4 & 14‑27.7A}.

There is no defense against a charge of rape that the victim is the spouse of person committing the act {§14‑27.8}.

North Carolina General Statutes Chapter 14

[edit] Ohio

The age of consent in Ohio is 16 as specified by Section 2907.04 of Ohio legislation. However there exists a close in age exception where an offender can be charged only if 18 years of age or older {§ 2907.04}. However in that case, it is possible for both minors to be charged as "unruly" if brought to court {§ 2151.022}.

[edit] Pennsylvania

In Pennsylvania, a person 18 years and over can completely escape criminal liability for consensual sex only if their partner is also 18 or over.

The Age of consent in Pennsylvania is officially 16 years of age, but effectively 18 years of age, due to the interplay of various criminal statutes. A person who is 4 or more years older than a consenting partner who is less than 16 years of age can be charged with the following felony sex offenses: Statutory sexual assault {§ 3122.1} (vaginal or anal intercourse), Aggravated indecent assault {§ 3125} (penetration of the vagina or anus), Involuntary deviate sexual intercourse {§ 3123} (oral sex). A person 18 years or over, who engages in consensual sex with a person between the ages of 16 and 18 can be charged with Corruption of minors {§ 6301}, which is a first degree misdemeanour.

There is no "4 year rule" for the charge of corruption of minors. Additionally, the offense of corruption of minors is nebulously defined, criminalizing any conduct committed by a person 18 years and upwards which tends to corrupt the morals of a person less than 18 years of age. Sex is generally considered to constitute an act which corrupts the morals of a minor.

The corruption of minors statute creates a strange glitch in Pennsylvania law, as illustrated by the following hypothetical. A girl and boy in the same grade could be dating and legally having sex with each other throughout their 4 years of high school. In their senior year, the girl turns 18 in April, while the boy will not turn 18 until June. On their prom night in May, the boy and girl have sex, as they have previously done throughout high school. However, the girl is now committing the offense of corruption of a minor, because she is 18 years old and her boyfriend is only 17.

(Note: The official Pennsylvania Consolidated Code is not yet available online, links provided are to a third party maintained site last updated in 2003)


[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 offence" 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

There is no unfettered age of consent in Virginia according to state Codes. Any penetrative sexual act other than penile-vaginal intercourse is defined in Virginian law as 'sodomy'. Section 18.2-361 of the Virginian Code entitled "Crimes against nature" states in part;

"If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of ... felony..."

The effect of this statute may be invalidated by the US Supreme Court's decision in Lawrence v. Texas but the Virginia legislature has refused to revise the sodomy law, nor have the Virginian courts acted upon it. This means that those 18 and above involved in consensual activity in private may have a defense at court.

The current age of consent for penile-vaginal intercourse is adulthood as defined in the Code as 18.

There is debate as to whether the age of consent for penile-vaginal intercourse in Virginia is 15 as stated in Section 18.2-63 of the Code which states in part;

"If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of ... felony ... For the purposes of this section, (i) a child under the age of thirteen years shall not be considered a consenting child and (ii) "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse, and animate and inanimate object sexual penetration."

However this has yet to be tested in court.

[edit] Further reading

[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 offences) 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. Library of Parliament. Retrieved on December 11, 2006.
  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, 45. ISBN 0-226-67564-5.  The case cited is Michael M. v. Superior Court, 450 U.S. 464 (1981).

[edit] Further reading

[edit] See also

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