Ages of consent in North America

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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.

Contents

1 Canada

1.1 History
1.2 Current developments

1.2.1 See also

2 United States

2.3 Federal Laws
2.4 Arizona
2.5 Colorado
2.6 Delaware
2.7 Georgia
2.8 Massachusetts
2.9 New Hampshire
2.10 Pennsylvania
2.11 Texas
2.12 Virginia
2.13 Washington
2.14 Wyoming

3 Notes
4 Further reading

Canada

The age of consent in Canada is generally 14 (see below). As where an accused is charged with an offence under section 151 (Sexual Interference) or 152 (Invitation to sexual touching) or subsection 153(1) (Sexual exploitation), 160(3) (Bestiality in presence of or by child) or 173(2) (Indecent acts) or is charged with an offence under section 271 (Sexual assault), 272 (Sexual assault with a weapon, threats to a third party or causing bodily harm) or 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.

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. Although not binding in other provinces, these rulings have set a precedent that would make successful prosecution elsewhere in Canada unlikely. [Egale Canada Submissions to the House of Commons Subcommittee on Solicitation Laws], Egale Canada, April 18, 2005

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 [Tories move to raise age of consent] by Terry Weber, Globe and Mail, June 22, 2006.

Current developments

The current (2006) 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.[Tories move to raise age of consent], CBC News, June 22, 2006

United States

The United States of America is a constitutional republic. Law making occurs at both Federal and State level. Age of consent laws are made predominately at State level, however there also exist Federal age of consent related laws.

Federal Laws

[] 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.[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.

[] 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.

[] 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 for as non-commercial sexual activity is concerned. For the purposes of age of consent, the only provision applicable is []. 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.

Arizona

(Information from [Arizona Revised Statutes website http://www.azleg.state.az.us/] as of 2006-Apr-21)

18 in the general case, possibly as low as 15 depending on the older person's age compared to the younger person's age - [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. (additional text omitted)
* 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.The construction for this is rather confusing, but if one party is over 2 years older, by even one day, then they are guilty.

Colorado

(Information from [Colorado Revised Statutes website] as of May 18, 2006)

Any age if the partner is within 4 years of age.18-3-402(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

15 if the partner is within 10 years of age. 18-3-402(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;

"It appears that Colorado has adopted the common-law age of consent for marriage as 14 for a male and 12 for a female, which existed under English common law," the ruling said. "Nevertheless, we need only hold here that a 15-year-old female may enter into a valid common-law marriage." [AP, June 15, 2006]

Delaware

16 if partner is more than four years of age older - [Title 11 § 761 J]
12 under all circumstances - [Title 11 § 761 J]

Georgia

16 - [Section 16-6-3 of the Georgia Code]

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."

New Hampshire

16 - [RSA 632-A:3. II.]
18 - position of authority over victim [RSA 632-A:2. I(k)]

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).

Texas

The age of consent in Texas is 17 . 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 21.12] 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, and violations are a second degree felony.

Virginia

18, 15-17 falls under [18.2-371 contributing to the delinquency of a minor] if partner is over 18, 13-14 falls under [18.2-63]

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 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).

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.