Some of the proposals made in Bill C-53 make substantial and significant changes to the law in the troublesome area of sexual offences, and the Commission is to be congratulated for those advances. There are, however, other areas in which we think the Commission either did not go far enough, or went too far. We will first detail the points upon which we are particularly pleased to see reform and then go on to discuss at greater length those sections that we think still stand in need of reform.

We approve of Section 175 (Vagrancy) being repealed.

With respect to the general changes to the rape laws, we approve of Section 244(3). We also approve of Section 246.3 which deletes the need for corroboration of a sexual offence, in view of the fact that corroboration is not required to convict for ordinary assault.

With respect to the changes incorporated in Section 250.1, we highly approve of making child abduction a criminal offence. As anyone who practices matrimonial law knows, low cost means of enforcing custody agreements is badly needed. Right now, an individual who is obliged to chase his or her kidnapping spouse from province to province to country to country can be financially ruined by it, or is stopped in the beginning by lack of financial means.

With respect to Section 442(3), we approve of the change giving the complainant the right to seek a prohibition of the publication of the complainant’s identity. But we also recommend that the accused should be able to seek a prohibition concerning his identity as well, on the basis that an accused is innocent until proven guilty, and publication is as damaging to his reputation as it is to the complainant’s.

We approve of the repeal of such outmoded offences as seduction of female passengers on vessels, conspiracy to fraudulently induce adultery or fornication, detaining a female against her will with intent to marry her or have illicit sexual intercourse with her and seduction of a female under 21 with the promise of marriage. We note that other Sections of Bill C-53 would cover situations where fraud or force were used in relation to sexual offences.

We also approve of the repeal of a number of sections that deal expressly with homosexual acts, such as buggery.

Finally, in general, we approve of those amendments which are designated to eliminate gender distinction, as for example in the widening of the definition of prostitute in Section 179(1) to include either sex.

We now pass to our points of disagreement.

Incest RECOMMENDATION:That in clause 6, the proposed Section 168.1 be amended to read as follows:

Section 168.1

1. (a) Everyone commits incest who, knowing that another person who is under 16 years of age is his blood relative, has sexual intercourse with that person.

(b) Everyone commits incest who, knowing that another person who is 16 years of age or more is his blood relative, and knowing that the said person is unaware that they are blood relatives, has sexual intercourse with that person.

(c) “Blood relative” in subsection (1) means a parent, child, brother, sister. half-brother, half-sister, grandparent or grandchild.

2. No person shall be found guilty of incest if he is under 16 years of age, or acted under restraint, duress or fear of the person with whom he had the sexual intercourse.

3. Everyone who commits incest pursuant to Section 169.1(1)(a) is guilty of an indictable offence and is liable to imprisonment for ten years.

4. Everyone who commits incest pursuant to Section 168.1(1)(b) is guilty of an indictable offence and is liable to imprisonment for five years.

5. No person shall be found guilty of incest under Section 168.1(1)(a), where he establishes that he honestly believed, on reasonable grounds, that the person with whom he had intercourse was sixteen years of age or more.

Rationale: Since incestuous relations may seriously scar those who engage in them, the law should protect the young from such potential harm. And since the harm is potentially more grave than that of the sexual exploitation dealt with by sections 166-8, we concur with the Commission’s recommendations that the penalties should be correspondingly more severe.

For the same reason, an adult should be held criminally liable for having intercourse with a blood relative where (a) he/she knew the partner was a blood relative, but the partner did not, and (b) he/she did not apprise the partner of the fact. However, we do not think that this misdeed is as grave as with the young, and hence that there should be a corresponding reduction in the penalty.

With respect to adults (i.e., persons over 16) who are aware of their blood relations to one another, however, we take a different view. It is our position that the importance of giving people freedom of choice in matters of sexual morality should entitle them to incur any risk of scarring or regret that may later emerge. Thus we recommend that, with respect to these persons, incest should no longer be a criminal offence.

The sexual exploitation of young persons by producing visual representations of their sexually explicit conduct.

RECOMMENDATION 1. That in clause 6, Section 168.2(1)(b) be amended to read “a visual representation whose production has involved inducing, coercing, or agreeing to use the participation of a person under sixteen years of age in any sexually explicit conduct”.

RECOMMENDATION 2: That the marginal notation for 168.2(1)(b): “Using young persons to produce visual representations of their sexually explicit conduct”.

RECOMMENDATION 3: That Sections 168.2(1)(c) and (d) be deleted altogether.

RECOMMENDATION 4: That an additional subsection 169.2(4) be added, to read: “No one under sixteen years of age shall be found guilty of an offence under this section”.

RECOMMENDATION 5: That the marginal notation for 169.2(4) be: “Defence”.

Rationale for Recommendations 1, 2 and 3: We agreed that inducing, coercing or agreeing to use a child under sixteen years of age in any sexual explicit conduct, or participating in such an activity, is clearly harmful to the child and should be prohibited. It was not, however, clear to us that printing, publishing, distributing or otherwise disseminating the product of such an activity is harmful to the children who were involved in its production. There is no clear danger from disseminating such material that would, in our opinion, warrant the restriction on free speech that subsections (c) and (d) would impose.

Our objection to the wording of Section 168.2(1)(b) of Bill C-53 is that it does not distinguish visual representations of the sexual conduct of children that are made possible by the exploitation of children, and those which are produced by innocent means. Paintings, cartoons, drawings, animated films and sculpture could represent sexual conduct on the part of children without being the product of an unlawful act. Such representations would almost certainly be the product of imagination, and the act of imagining children participating in sexually explicit conduct would not exploit or harm anyone.

If Section 168.2(1)(c) and (d) were deleted from Bill C-53, we foresee that prosecution of materials described therein would nevertheless go forward under the obscenity provisions of the Code. We would disagree with such prosecution, not because we would not be likely to find much or most of such material disgusting but because we cannot allow the disgusting, disturbing or degrading features of any idea or image to be sufficient reason for its prohibition. This of course is the Association’s general position on all forms of what is called obscene or pornographic material.

Rationale for Recommendations 4 and 5: Sexual relations between children may possibly be the occasion of children sexually exploiting one another, but we doubt that this is often the case.

For the reasons that we find it necessary to take special steps to protect children from sexual exploitation (inability to properly consent, inability to properly understand the consequences, etc.), we must presume children to be innocent of wrongdoing in their sexual conduct with one another.

We are relieved to see the defence of public good provided for in this section. We cannot sensibly regard all of the sexual conduct of children as harmful to them, and we are sceptical that every instance of producing a visual image such as described in 168.2(1) would in fact be exploitive. The majority of children in our culture masturbate, and we do not regard this sexual conduct as generally harmful. Children in some few other cultures participate in sexual intercourse at remarkably (from our perspective, in any case) early ages, and appear to escape harm. We must consider the possibility of films or photographs being produced that record such sexual conduct for purposes such as scholarly study or the advocacy of ideas relevant to sexual education. We regard it as impossible to provide a legal description of such material that would at once exclude it from the possibility of prosecution and prevent truly exploitive material from finding shelter tinder the description. We hope, therefore, that those who produce scholarly material in this area, and who use it responsibly for the purposes of study and the advance of understanding in this delicate and controversial area, would find a defence in 168.2(3). This is an instance in which we feel the protection of the innocent can only be achieved by the accretion of an appropriate body of case law.

Gross Indecency

RECOMMENDATION: That clause 7 be deleted, thus making gross indecency no longer a criminal offence.

Rationale: The proposed Section 169.1 makes criminal only a small sphere of conduct which is not already prohibited by other sections of the Code. If the act is carried out without consent of one of the parties, the act falls under the assault provisions (ss. 144-5). If the act is carried out in a public place, it falls under the article covering indecent acts (s.169). If the act is carried out in private and between persons under sixteen, then the act falls under the new code’s sexual misconduct sections (ss. 166 and 167). The only conduct Section 169.1 precludes which is not already precluded by other sections are acts of gross indecency between consenting persons in private where one partner is between 16 and 18.

We feel, however, that no such conduct should be criminally prohibited on any definition of “gross indecency”—and it is to be noted that neither the old Criminal Code nor the proposed legislation provides a definition. There is nothing that consenting persons of the ages in question should be forbidden to do or show one another which is not already forbidden by other sections of the Code, let alone anything for which they should be liable to such heavy punishment. In this regard, we note that it is particularly inappropriate for the proposed legislation to recommend a heavier maximum penalty for acts of gross indecency conducted in private (5 years) than the maximum set for acts of indecency conducted in public (Section 169: summary conviction).

Our proposal is but an extension of a trend already apparent in the Law Reform Commission’s recommendations. The proposed section 169.1 lowers the age of persons open to the charge of gross indecency from twenty-one to eighteen. It is our view that the reasons which justify that reduction also justify the removal of the section entirely.

Assault

RECOMMENDATION:That in Clause 18, the proposed subsection 244(4) be amended by insertion of a sub-section (b) to read as follows:

(4) For the purposes of this section,
(a) it is a question of fact whether the complainant consented or not; and

(b) the complainant shall be deemed not to consent if he refuses or resists; and

(c) consent shall not necessarily be inferred f rom the fact that the complainant submitted to or did not resist the application of force.

RECOMMENDATION 2: That the heading, or marginal notation, for subsections 244(3) and 244(4) be “Consent an act of voluntary communication”.

RECOMMENDATION 3: That in the proposed subsection 244(5) the words “Where a question is raised as to whether the accused believed” be replaced by the words “Where there is evidence that the accused believed”.

RECOMMENDATION 4:That in clause 18, subsection 246.5(1) be amended to read:

(1) Where an accused is charged with an offence under section 166 (sexual misconduct with person under fourteen), 168 (sexual misconduct by parent, guardian, etc.), 168.1 (incest), 246.1 sexual assault) or 246.2 (aggravated sexual assault), no question shall be asked by or on behalf of the accused, and no evidence shall be admitted, concerning the sexual activity of the complainant with a person other than the accused.

and that the remaining subsection of Section 246.5 be deleted.

Rationale for Recommendations (1) and (2): The intended effect of inserting the new sub-subsection is to clarify the definitions of the offences so as to make more explicit in what way the element of lack of consent enters into them. The offence most in need of clarification is of course sexual assault (the successor to rape).

The point is to make explicit the idea that (to consider the case of rape) consent is an act which a woman has a right to perform or not to perform, and that her autonomy with respect to giving or withholding consent not only may not be invaded by others but also cannot lapse through changes of circumstance. If consent were a state of mind, it would become possible to go behind a complainant’s protestations at the time, and conduct an enquiry into the question of whether she was in fact in such a state of mind or not; whether she consented or not would cease to be a matter which was up to her to decide. It is of course possible for consent to be given tacitly, or by silence, or by acts of compliance, but an act of some kind, if only an act of omission, is essentially .required. A man is therefore required, not to form an opinion, but to obtain a consent, which always remains the woman’s right either to give or withhold.

When the definition of the offence is clarified in this way, less importance will be attached to questions about the honest belief of the accused. When the accused claims to have had an honest belief that the complainant consented, both sides of the familiar debate tend to assume that the subject matter of the belief is a state of mind. But the only question at issue is what communication he complainant voluntarily gave to the accused. If she explicitly said no, or indicated refusal by a clear sign, or resisted, then she withheld consent. Cases of tacit consent might give rise to dispute, but that is no ground for regarding clear cases as in any way obscure. The proposed clarification of the definition of consent embodies the common sense point often made that “no means no”.

It may be objected that the law will restrict the freedom to engage in sexual activities in which one partner invites the other to use force and to override denials of consent. That is true, but this unusual and relatively minor restriction is an inevitable consequence of securing a right of basic importance, and as such fully justified. Someone who accepts an invitation of this kind will have committed an offence, and will face the risk of being accused at a later date. It is entirely reasonable that he should undergo that risk, since he has now placed himself in a position in which it is impossible for him to interpret reliably the communication he is receiving. He can no longer distinguish a game being played from a genuine change of mind. It is both conceivable and probable that a person entering such a relationship will acquire sudden and alarming reasons for withdrawing from it. The law must protect the inalienable autonomy of that person, not only in all ordinary situations. but even in such an extremely rare circumstance.

Rationale for Recommendation (4): The proposed Section 2A.6.5 limits the right of the accused to ask questions concerning the sexual activity of the complainant with persons other than the accused. The scope still allowed for such questions is that of relevance to the question of the accused’s honest belief that the complainant consented. Evidently the intention of retaining even this much scope for such questions is protect the defence of honest belief in consent; and the intention the questions so severely and elaborately is to reduce the familiar evils of rape trials, in which the complainant is subjected to a personal ordeal, and her credibility often undermined, by irrelevant and prejudicial questioning. The proposed amendment is a compromise between these two aims.

However, the Association believes that no compromise is necessary, and all reference to sexual activity with persons other than the accused should be made inadmissible.

The only element of the offence which is relevant is the question of whether the complainant gave or withheld consent on the occasion in question. To establish honest belief about the correct interpretation of silence or of other dubious forms of communication, it may be relevant to consider other beliefs held by the accused. But the complainant’s actual sexual activity with persons other than the accused can be thought relevant only on assumptions which prejudice the continuing autonomous right of the complainant to give or withhold consent. On the other hand, it no longer needs arguing that the admission of evidence on this subject is prejudicial with respect to the testimony both of the accused and of the complainant, and that the mere possibility of its admission deters complainants and obstructs justice. The ingenuity which has been expended in unsuccessful attempts to safeguard such evidence testifies to the necessity of simply excluding it.

Other sexual offences not dealt with by Bill C-53:

We note that a number of offences have been left relatively untouched, except for elimination of gender distinctions. For instance, the offence of soliciting for the purpose of prostitution is left intact as are a number of other offences related to prostitution, such as the bawdy house offences.

Our Association holds the view that no act should be made criminal unless serious harm is done or threatened to others. As such, we are in full agreement with the present state of the law according to which neither being a prostitute nor acts of prostitution are criminal offences. For the same reason, we also agree with the Butt decision according to which solicitation for purposes of prostitution is a criminal offence if and only if it is carried out in a manner which is pressing or persistent. But this judgment has, in our view, nothing to do with prostitution per se; insofar as any soliciting is neither pressing nor persistent, it should be allowed; and insofar as any soliciting is pressing or persistent, it should be criminally prohibited. As such, to have a section of the Criminal Code singling out solicitation for purposes of prostitution is unnecessary and discriminatory.

Addendum:
Sexual Offences bill Approved at the December 1982 Board Meeting

In its earlier submission on Bill C-53, the B.C. Civil Liberties Association did not comment on the proposals for Section 166 and 167, being respectively sexual misconduct with persons under 14, and between 14 and 16.

We are concerned by the use of the term “sexual misconduct” in these sections and the fact that it is not defined in the Criminal Code or in Bill C-53. For instance, by its very name, this term seems to imply that some sort of sexual activity is permissible with persons in these age groups. We suspect that this was not the intention of the drafters of this legislation.

We note that the Law Reform Commission suggested the wording “sexual contact” and suggested that it might be defined to mean “touching of the sexual organs of another or touching of another with one’s sexual organs that is not accidental”. The problem with this definition is that there may be some forms of touching we would wish to prohibit that do not include touching of sexual organs, for example, french kissing. There is also a question over whether such innocuous activities as bathing the baby and medical examinations would be included under this definition. A terminology that may avoid such contradictory results and which our Association puts forward for discussion is “sexual conduct”.

A further difficulty that we have with Section 166, is with sub-section 3, which states that it is not a defence to the charge that the accused believed at the time the sexual misconduct took place, that the complainant was 14 years of age or older. Our Association is of the opinion that there are often situations where a child under 14 years of age invited sexual contact with an adult and appeared to be far older than 14 years of age. It seems that an “honest belief on reasonable grounds test” should be available for these sorts of cases. We have a similar difficulty with Section 167 which deals with sexual misconduct with a person who is between the ages of 14 and 16 years. Although there is a type of “consent” defence where the accused is “less responsible than the complainant for the sexual misconduct that took place”, this seems an odd method of assessing culpability, especially since it might be possible for a person to fail the “honest belief on reasonable grounds test”, but still be found not guilty on the basis that the victim was more responsible than the accused for the sexual misconduct that took place.

RECOMMENDATIONS:

1. Section 166 and 167:

Change the word “sexual misconduct” to “sexual conduct”.

2. Section 166(3):

Delete Section 166(3) which would eliminate the defence of honestly believing the child was 14 years of age or more, and substitute a defence where the child consented and did not state that he or she was under 14 years of age and a reasonable man in the circumstances would have believed that the said child was over 14 years of age, and the accused honestly so believed.

3. Section 167(2):

Delete Section 167(2) and insert a similar “reasonable grounds” test.