Age of Consent in North America

Ages of consent in North America
The ages of consent for sexual activity vary by jurisdiction across North America.

Overview …
The age of consent is the age at or above which a person is considered to have the legal capacity to consent to sexual activity. Both partners must be of legal age to give consent, although exceptions may exist when both partners are within a certain number of years in age. Persons below the age of consent may not, by law, give consent, and sexual relations involving such persons may be punished by criminal sanctions similar to those for rape or sexual assault. Non-violent sexual contact with persons under the age of consent may be punished as “statutory rape” or a similar legal term.

Historically, the age of consent applied to male-female relationships; homosexual relationships were often illegal in themselves regardless of the ages. Modern laws have explicitly recognized different relationships, but the circumstances may affect the legal status, and there may be multiple “ages” that apply in any jurisdiction. For instance, different ages may apply if the relationship is homosexual, or if the sexual contact is other than vaginal intercourse. Also, different ages may apply if one partner is in a position of power or authority over the other (e.g., a teacher-student relationship).



Bahamas, The
In the Bahamas, the age of consent for opposite-sex activity is 16 and the age of consent for same-sex activity is 18 . Since 1991 homosexuality was legalized. However, “public homosexuality” is an offense that carries a 20 year jail term without parole. Art. 16
Further reading :
• Gay Times information on the Bahamas
• Interpol’s information page on the Bahamas

Bermuda (Overseas territory 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 .
History
Male homosexual acts were decriminalized in Bermuda since 1994 where the above conditions were set .

Canada …
The Tackling Violent Crime Act took effect on 1 May 2008, making the current age of consent 16 .
There exist two close in age exemptions, depending on the age of the younger partner. A youth of twelve or thirteen can consent to sexual activity with an individual no more than two years older than them. A fourteen- or fifteen-year-old can consent to sexual activity with a partner who is no more than five years older than them, or to whom they are married. (Marriages are permitted for those above 16 outside Quebec, and above 16 for males and 14 for females in Quebec.) Neither exception applies if the accused was in a position of trust or authority towards the victim, the victim was in a relationship of dependency with the accused, or if the relationship between the accused and victim is found to be exploitative.

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. Section 151 of the Criminal Code of Canada makes it a crime to touch, for a sexual purpose, any person under the age of 16 years. Section 153 then goes on to prohibit the sexual touching of a person under 18 by a person in three circumstances: if he or she is in a “position of trust or authority” towards the youth, if the youth is in a “relationship of dependency” with him or her, or if the relationship is “exploitative”. The term “position of trust or authority” is not defined in the Code but the courts have ruled that parents, teachers, and medical professionals hold a position of trust or authority towards youth they care for or teach. For determining whether or not a relationship is “exploitative”, s. 153 (1.2) of the Code provides that a judge can consider how old the youth is, the difference in ages between the partners, how the relationship evolved, and the degree of control or influence that the older partner has over the youth.

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 defense that the complainant consented to the activity that forms the subject-matter of the charge.

Anal intercourse …
Additionally, 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. It is interesting to note that this section reads “husband and wife,” even though same-sex marriages have been legal in Canada since 2005.
However, courts in Ontario (1995) and Quebec (1998) have independently declared Section 159 of the Criminal Code of Canada (Anal Intercourse) unconstitutional.

History
The age of consent for heterosexual vaginal sex was previously 12 years of age; in 1890, parliament raised it to 14. The punishment for anyone who breached the law was life imprisonment and whipping, while the punishment for anyone who only attempted to seduce an underage girl was two years’ imprisonment and whipping. From March 2008, the Tackling Violent Crime Act became effective, which among other crimes included under the Act has raised the age of consent in Canada to 16. Anal sex still remains at age 18 under section 159, and the new measures still allow for close in age exceptions only between 12 and 16: if there is no more than a two year gap for those 12 and 13, or a five year gap for those 14 and 15.
Female homosexuality was never illegal in the former English colonies; oral sex was legalized in 1969 with the same age of consent as vaginal sex and anal sex was also legalized in 1969, but with a higher age of consent being set at 21, under section 159; then in 1988 the age of consent for anal sex was lowered to 18. As of 2008 there are no plans to repeal section 159, even though it has been ruled unconstitutional in some places of Canada.
Further reading
• Criminal Code of Canada – Full text of the Criminal Code, from the Department of Justice website
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Mexico …
In Mexico, the age at which there are no restrictions for consensual sexual activities is 18 , while the minimum age of consent varies between 12 and 18, according to state laws. In Mexico, criminal legislation is shared between the federal and state governments. The Federal law establishes the age of 12 as the minimum age at which states can legislate upon; however there may be local state laws that override the federal law. In practice though, the decision as to whether or not to prosecute is left to state authorities regardless of the younger person’s age.

Federal Law
Article 261 of the Federal Criminal Code (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, stepfather 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:
• (PDF) Official version – Mexican Chamber of Deputies website. (in Spanish)
• Copy in HTML/PDF, browsable by section (in Spanish)
• Interpol website (in Spanish))
Local laws
The age of consent is puberty in:
Nuevo León, Querétaro
12 in:
Aguascalientes, Baja California Sur, Campeche, Coahuila, Chiapas, Guanajuato, Guerrero, Hidalgo, Jalisco, Mexico City, Morelos, Oaxaca, Puebla, San Luis Potosí, Sonora, Tabasco, Tamaulipas, Yucatán, Zacatecas
14 in:
Baja California, Colima, Chihuahua, Durango, Quintana Roo, Sinaloa, Tlaxcala, Veracruz
15 in:
Mexico (state)

18 in:
Nayarit (as of November of 2006), Michoacán (as of August of 2006)
All Mexican states have Corruption of Minors statutes that can, upon complaint of the family (or minor), be used to punish sexual relations with persons under eighteen. It should be noted that while actual prosecutions for violations of Corruption of Minors statutes (and age of consent statutes in general) tend to be sporadic, regional, and very situation dependent, many Mexican states nonetheless classify Corruption of Minors as a “Delito Grave” (Grave Crime) in their penal codes.

Additionally, all the states have “Estupro” (statutory rape) laws that can, upon complaint of the family (or minor female), be used to prosecute adults who engage in sexual intercourse with “chaste” and “honest” females under eighteen by means of “seduction” or deceit (such as the false promise of marriage). A similar situation exists in some southern U.S. states.

Federal District
The age of consent in the Federal District ( Mexico City) is 12 , one of the lowest in the world, 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 Crimianl 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.

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.
There is a Corruption of Minors statute (Article 184) that can be used to punish by imprisonment, for seven to twelve years, adults who engage in sexual relations with persons under eighteen. This situation exists all over Mexico, and can be prosecuted upon complaint of the family or the child.




United States…
The United States of America is a federal republic where the age of consent laws are made at the state level. There exist several federal statutes related to protecting children from sexual predators, but none of them imposes an age limit on sexual acts. On 26 June 2003, both heterosexual and homosexual sodomy became legal in all US states and territories under a US Supreme Court decision called Lawrence v. Texas (between non-commercial, consenting adults in a private bedroom). In Limon v. Kansas (2005), the Kansas Supreme Court used Lawrence as a precedent to overturn the state’s “Romeo and Juliet” law, which proscribed lesser penalties for heterosexuals than homosexuals convicted of similar age of consent related offenses There is ongoing advocacy for a uniform age of consent. One proposal would make the national age of consent 18 . If a state has an age of consent below the federal limit, 10% of federal education funds would be reduced. Thus far, Congress has not considered this or any other proposal to change the status quo. However there is a common misconception among many Americans that there is a federal limit at 18, but that is false, as the age limit in most states is in fact below 18.


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 reside within the same state but use an instant messenger program whose servers are located in another state.

{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 when the minor is transported across state or international lines to a place where the conduct is already illegal to begin with. The 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 one is 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 U.S. Citizens and Residents who travel outside of the United States.

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

“The U.S. 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.”

Local Laws ….

Alabama
The age of consent is 16 , minimum age for civil majors (19 years old).
Shown by articles of the Code of Alabama :
• 13A-6-70 :
(c) A person is deemed incapable of consent if he is: (1) Less than 16 years old; or …
• 13A-6-67 :
(a) A person commits the crime of sexual abuse in the second degree if: …
(2) He, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old.
• 13A-6-61 ”
(a) A person commits the crime of rape in the first degree if: …