On September 15, 2016 Graham James, the former junior hockey coach convicted of sexually assaulting players he coached in the nineties was granted full parole after seven years in prison. His victims included retired NHL stars Theo Fleury and Sheldon Kennedy, whom James repeatedly assaulted by abusing his position as coach. Though James has admitted that he cannot change his attraction to young people, he has promised never to put himself in a position where he can hurt kids again.
The courts are doing their best to make sure he keeps his promise for the terms of his parole include no contact with anyone under the age of eighteen, no contact with the victims or their families, and he’s not allowed to work in any job or profession involving minors.
We all know that Graham James is a pedophile who probably should have remained in some form of incarceration for the rest of his life.
This article isn’t about him.
It’s about the laws protecting Canada’s young from sexual assault.
The laws against sexually assaulting minors are found in the Canadian Criminal Code and come in two forms. The first are laws themselves, the second are as circumstances in which the penalty for the crime increases if the victim is under the age of consent.
As per the Canadian Criminal Code, the age of consent is sixteen years old. Anyone under that age cannot legally consent to sexual activity.
Anyone who for a sexual purpose, touches directly or indirectly or with an object, a part of the body of someone under the age of consent is committing a crime and looking at a minimum sentence of one year in jail and a maximum of fourteen years. The same penalty applies to anyone who invites, counsels, or incites someone under sixteen to touch someone’s body part for sexual purposes. It also applies if a person touches or incites someone under under the age of sixteen to engage in sexual touching when he or she is in a position of authority and the young person is in a dependent position or where the nature of the relationship could be construed as exploitative. The only possibility of a lesser sentence is if the offender gets a summary conviction, which is considered less serious and reduces the sentence to a minimum of ninety days and a maximum of two years.
The Criminal Code also protects minors from bestiality. Bestiality in the presence of someone under sixteen or inciting someone under sixteen to commit bestiality is punishable by a maximum sentence of fourteen years and a minimum one year in jail. Once again, there is the possibility of being tried on summary conviction in which case the person will face a minimum ninety days or a maximum of two years.
For exposing oneself to a minor the penalties are a lot lighter. Exposing oneself consists of flashing your genitals to someone under the age of sixteen and will get the offender up to two years in prison or a minimum ninety days in jail. If the offender is lucky enough to get a summary conviction, he or she is looking at a minimum of thirty days or a maximum of six months.
Sexual Assaults are where the age of victim will increase the sentence for the crime. If the victim is over sixteen, the maximum sentence is only ten years. If the victim is under sixteen, it’s the same fourteen years maximum and minimum one year as for other sexual offenses involving minors. If a weapon or something used as a weapon was part of the assault, the fact that the victim was under sixteen takes the penalty from a maximum of fourteen years to a life sentence.
Defenses for sex crimes against minors are limited.
Unlike adult sex crime cases, an offender cannot claim the victim consented to the activity if the victim is less than sixteen years old. There is an exception to this, however, in the case of accusations of touching or inciting to touch or exposing genitals for sexual purposes.
If the victim is over fourteen years old but under sixteen and the accused is less than five years older and not in a position of authority or any other exploitative relationship with the person, he or she can claim the person consented. Someone who did any of those things at the age of twelve or thirteen cannot even be accused of the crime unless the person was in a position of trust or authority towards the victim.
It is NOT a defense to argue that the accused believed the victim was sixteen or more at the time of the activity unless the accused took “reasonable steps” to find out the age of the victim. The attempt to use this as a defense comes up a lot in Men’s Rights’ Activist discourse when jerks try to get out of a rape charge by claiming that because the victim had fully developed boobs and was wearing makeup, the rapist had every right to think the activity was legal.
The laws and judicial practices when it comes to rape in Canada need an overhaul.
If you have any doubts, look at the language used in the Canadian Criminal Code. In the section on sexual assault, the victim is always referred to as a “complainant”. While in legalese, the word means a plaintiff in legal cases, to laymen the word starts with “complain”. Since language shapes the way we think, using a word like that to describe a victim creates the unconscious belief that rape victims are not victims but complainers.
No matter the age, a rape victim is just that, a VICTIM, and despite what a certain judge in Alberta would have you believe, it’s NEVER, EVER the victim’s fault.
* Featured image: Graham James released from prison
