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Benedet on the Age of Consent

By Lawrence Solum

Janine Benedet (UBC Faculty of Law) has posted The Age of Innocence: A Cautious Defence of Raising the Age of Consent in Canadian Sexual Assault Law on SSRN. Here is the abstract:

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. This change was motivated, in part, by several high profile cases of internet ?luring? of younger teenagers. This 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. The 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. The 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. The 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 which 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 considered in determining whether a relationship is exploitative even where both parties are over the age of consent. The 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.

- accepted for publication & forthcoming in: New Criminal Law Review

Full post as published by Legal Theory Blog on June 21, 2010 (boomark / email).