Pregnant at 15: Some legal issues relating to treatment

TEENAGE PREGNANCY

Jay is 18 years old, a recent graduate from high school. He has been developing feelings for Janice, who is 3 years younger than him. Finally he had the courage to ask her out on a date. Their personalities are very compatible and they got along very well, leading them to develop into a committed, romantic relationship.

Jay and Janice usually go out on movie dates and take long walks in the park. As the days went on, they got closer with each other emotionally and physically, holding hands and hugging. Both of them started to become very fond of each other. They began to kiss passionately and fiddled with each other under clothing. They felt sexually aroused, and got more comfortable with touching and continued whenever they had the chance to.

One day, Jay went over to Janice’s house when her parents were not home. They decided to watch a movie and got carried away when they started kissing passionately, and doing the usual things they did. Jay suggested that they try to have sex. Janice thought about it and asked if he had protection.  Jay convinced Janice that it would be okay if they didn’t have any because every friend he knows who has sex has no problems without a condom. Janice was then persuaded and they went up to her room and had sexual intercourse.

A month or so later, Janice felt unwell and was nauseated. Janice suddenly remembered that her period did not come during the first week of the month, which was odd. Jay and Janice started to worry and bought a pregnancy test in the drug store. The test was positive. Janice was pregnant.
 

Janice, only age 15, decided that she should tell her parents. Her parents were furious and upset. Her parents wondered if abortion for young teenagers may be risky and dangerous, but insist that she abort anyways because they didn’t want to take care of her baby.

Janice wants to give birth to her baby.  At the same time, she is angry at Jay about the condom issue.

Teenage sexual activity and pregnancy: What the Law Says:

Q1: Was the sexual activity between Janice (age 15) and her boyfriend Jay (age 18) legal?

A: Yes.  Janice was old enough to legally consent to sex with Jay.

When are you old enough to legally consent to sexual activity?

If you are…

·                     12 or 13, you can consent to sex, but only with someone less than two years older than you.

·                     14 or 15, you can consent to sex, but only with someone who isless than 5 years older than you. But, you CAN'T consent to sex with someone who is more than two years younger than you (or you could be charged).

·                     16 and older, you can consent to sex with anyone older than you. 

·                     In all of these cases, however, if you are under 18, you cannot legally consent to sex with someone who is in a position of trust or authority over you (like your teacher, swim coach, Pastor). That person could be charged with a criminal offence.

Read the law: Criminal Code of Canada, s.150.1-153.

Q2: Can Janice go against her parents’ wishes and deliver the baby (instead of having an abortion)?

A: Yes. As long as Janice has the capacity to consent to medical treatment and understand her medical situation, she can make her own decisions around her pregnancy and the birth.

When are you old enough to make your own medical decisions?

In Ontario, your age does not determine your ability to make decisions about medical treatment. Instead, you can make your own decisions about your health care as long as you are considered capable by your doctor or health-care provider.  Being capable means that you can understand the information that you are given about treatment as well as the consequences of your decision (such as the risks and results of the treatment).  

Your doctor might consider you capable with respect to some treatments and decisions, but incapable with respect to others, depending on how complicated or risky those treatments are.  For example, the different treatments Janice can expect to hear about at the doctor’s office might range from a second pregnancy test to an ultrasound (a test to look at the fetus and see if it is developing healthily) to an abortion (a procedure to end the pregnancy).  All of these are treatments with different risks, so the doctor might decide that Janice is capable of making some of those decisions and not others. 

In Ontario, you are presumed to be capable of making medical decisions unless the doctor has a reason to believe that you are not capable.  Age can play a role in this decision, since the older you are, the more able you generally are to make independent decisions and understand the consequences of those decisions.  It’s always a good idea to ask the doctor before you discuss something with them, in order to make sure that the doctor will respect your rights and not tell your parents what you have said.

Since Janice is fifteen, the doctor will probably decide that Janice is capable of making most or all of her medical decisions.  Any decisions that Janice makes cannot be disclosed to her parents, unless Janice gives her express consent.  This means that the doctor must ask Janice before telling her parents about her health care information, decisions, and treatment, and Janice must tell the doctor that it is okay to tell.  Ideally, Janice would sign a “consent” form that states exactly what information the doctor may share, and who the doctor can share it with.

It is unlikely, but possible that her doctor may decide that Janice is incapable with respect to a certain treatment or medical decision.  For example, if Janice has a severe learning disability or a mental health condition that prevents her from being able to understand her medical issues and the treatment options, then the doctor may decide she is incapable.  In such a case, the doctor will then be able to disclose Janice’s medical information to someone called a “substitute decision-maker.”  Since Janice is under 16 and lives with her parents, this person would be one of her parents.  In this case, Janice will be able to discuss her situation with her parents, but they will be responsible for making her health-care decisions for issues where the doctor has decided Janice is incapable.

For more information about teen pregnancy, support, and health care options if you think you might be pregnant:

The June Callwood Centre is a multi-service centre for pregnant and parenting teens in Toronto.  Their website contains links to other resources (if you are planning to have a baby or make a decision about a pregnancy), as well as information about the resources they provide.

Rosalie Hall provides services for young women who are going to have a baby or who are new parents, including education, counseling and outreach, child care, among other programs.

Planned Parenthood Toronto provides health care and health services to youth, including on sexual and reproductive health issues, and they will provide information and pregnancy-related medical treatment, including pregnancy tests, counselling on pregnancy options, and referrals to services to help pregnant women make an informed decision regarding pregnancy.

The Ontario laws that determine who can make medical decisions and how medical information can be released are the Health Care Consent Act and the Personal Health Information Protection Act.

The scenario for this post was written by Ying Yi Lau, a volunteer member of the PLE Team.  The legal info was written by JFCY. 

Sex and Booze on Prom Night: Legal Issues

Scenario

Andrew just turned 20 years old and graduated from high school this week.  This Saturday he is going to prom with his 14-year-old girlfriend, Maria, who is in grade 9. Andrew and Maria have been dating for about six months and Maria has decided that she would like to lose her virginity to Andrew at prom.

On prom night, Andrew’s parents are not home. Andrew grabs several of the beers from the fridge and puts them in his backpack.

Once he arrives at prom, Andrew gives several of the beers to his friends to drink.  These friends are all under age 19. His girlfriend Maria also grabs a beer from Andrew’s backpack and mixes it with her pop. She drinks the alcoholic beverage without the teachers noticing. 

Andrew and Maria are having fun at prom and dancing to the music. They decide to sneak into the washroom to have sex.  Luckily no teachers come into the washroom but a couple of students walk in and then run out in embarrassment.

Will Andrew and Maria face any legal repercussions from their actions on prom night?

LEGAL INFORMATION:

Sexual Activity and the Age of Consent

The age of consent refers to the age at which a young person can legally consent to sexual activity. All sexual activity without consent, regardless of age, is a criminal offence. 

Whether to consent to sex is always your decision. The Canadian law requires that all people participating in sexual activity must give their own consent: you decide whether you want to be involved in any kind of sexual activity, from kissing and touching to intercourse. 

However, the law sets some limits on that, so that it is illegal if you are below a certain age to be sexually involved with certain other people. This means that if you are too young to consent to sex with a particular person, that older person could be charged with a criminal offence. 

The general age of consent for sexual activity in Canada is 16 years. This means that if you are 16 or older, you can consent to sex with anyone older than you.

The Criminal Code provides "close in age" or "peer group" exceptions whereby a 14 or 15 year old can consent to sexual activity with a partner as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. 


A similar exception exists for 12 and 13 year-olds: they can consent to sexual activity with a partner who is less than two years older than them.

In all of these cases, however, if you are under 18, you cannot legally consent to sex with someone who is in a position of trust or authority over you (like your teacher, swim coach, Pastor). That person could be charged with a criminal offence.

In this prom scenario, because Maria is only 14 and Andrew is six years older than her, any sexual activity between them is illegal. This includes kissing and sexual touching. Andrew could face serious punishments for this as a regular sexual assault (see Criminal Code section 271) or the child-specific criminal charge of sexual interference or invitation to sexual touching (see Criminal Code section151 and 152).

For more info on the legal age of consent for sexual activity, check out JFCY’s YouTube video here, and the Government ofCanada’s website on this issue.

Underage consumption of alcohol

Maria is too young to legally consume alcohol.  According to ss.30(8) of the Liquor Licence Act,  it is illegal for a person under the age of 19 to have, consume, attempt to purchase or otherwise obtain alcohol. The only exception to this prohibition is where parents provide alcohol to their own children, at home with parental supervision.

Andrew is also in violation of the Liquor Licence Act for knowingly providing his underage friends with alcohol.

Both Maria and  Andrew may be charged under the Liquor Licence Act and be made to appear in Provincial Offences Court.

Sex on school property

Depending on the school’s Code of Conduct, the school principal may decide to sanction Maria for illegally consuming alcohol and having sex on school property. It is possible that she could be suspended.  (To read more about suspension, check out JFCY’s legal info pamphlet. 

Since Andrew has already graduated, the school can't suspend him but they could make a report to the police and refuse to let him back onto the school property in the future.

This scenario was written by PLE Team volunteer Tracy Chen, a joint LLB/MBA student at York/Osgoode.  The legal info was written by JFCY summer law student Robin McNamara (UofT) and reviewed by a JFCY lawyer. 

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Photo sources: 

Dress - http://www.chicagotribune.com/features/style/sns-prom-bad-dresses-pictures,0,3304913.photogallery

People drinking: http://www.bcmj.org/blog/raise-glass-new-canadian-alcohol-guidelines-take-break-tomorrow

Some Comments About the Age of Consent

 The following is an opinion piece by JFCY volunteer and PLE Team Member Marsha Rampersaud.  Marsha is a criminology student at York University.  The opinions in the piece are hers, not those of JFCY.  To learn more about the current law relating to age of consent, see this past blog post and our YouTube video.

After watching the JFCY's  YouTube video on the “AGE OF CONSENT” I was interested to learn more about this law.  I researched the history of the law and the reasons behind the last set of amendments in 2008.  What I found in my research was both surprising and informative. 

‘Age of Consent’ describes the age when a person can participate in a particular activity (generally sexual activity) legally.  What this means is that if someone is below the age of consent for sexual activity, it doesn’t matter (in the eyes of the law) whether they have participated willingly or unwillingly in the sexual activity, because they are considered to lack the capacity to consent.  This has legal consequences for a young person’s sexual partner.  If one partner is below the age of consent, the other partner can be held criminally responsible for participating in sexual activity.  Age becomes the standard to determine criminal responsibility, regardless of whether the relationship was actually consensual.   

Age of consent law has changed in recent years.  In June 2006, Bill C-22 proposed changes to the age of consent law.  Bill C-22 did not become law, but similar changes were proposed in Bill C-2, an omnibus bill that followed Bill C-22.  It was given royal assent in February 2008, which means that the changes it proposed are now part of the Criminal Code of Canada.  


Offences relating to sexual activity engaged in by young people date back to the late 1800s in Canada.  The definition of these crimes has been revised over the years, as society’s expectations for men and women have changed.  One part of Bill C-2 changed the age of consent law in section 150.1 of the Canadian Criminal Code, which pertains to sexual offences.  The reason behind the bill, as stated by Parliament is to better protect youth against sexual exploitation by adult predators.

Bill C-2 was significant for a number of reasons: in describing the changes to the law, the government often referred to age of protection, instead of age of consent.  Why is this important?  While consent means to give permission, which leaves power in the hands of youth, protection means to keep someone safe.  This takes the power out of the hands of youth and puts it into the hands of law enforcers (police, government etc.).  In my opinion, the result is that young people who fall within the scope of the age of protection are denied a voice regarding their sexuality.

For a number of offences relating to sexual activity by young people, the bill effectively raised the age of consent from 14 to 16.  There are some exceptions: There isa "close-in-age" exemption in the bill, which allowed 14- and 15-year olds to legally consent to sexual activity with someone who was less than 5 years older than them, and 12- and 13- year-olds to consent to sexual activity with someone less than two years older. (For more on that, watch JFCY's YouTube video explaining these exceptions.)


Despite public protest, the bill failed to address the question of lowering the age of consent to anal intercourse, which remains at 18.  Keeping the age of consent for anal intercourse at 18 has a negative impact on gay, bisexual and queer male teenagers specifically, since the age to consent to all other forms of sexual activity remains at 16.  However, in Ontario, the Court of Appeal has found that this distinction is unconstitutional, which means that even though the law about age of consent for anal intercourse still exists, people should not be charged with it in Ontario.  Many other provinces have similar rulings, but the Canadian government still has not repealed the law, which means it is effective in provinces that don’t have these kinds of court rulings.  It also means that anyone who does not know about the court rulings, and just looks at the Criminal Code to find out about the crime, will not know that the law does not apply in Ontario. It could have a negative effect on the dignity and self-esteem of gay, bisexual and queer teenagers. Knowing all this, I can’t help but ask the question, who does this law actually protect?  Or, more appropriately, who does this law target? 

In my opinion, this shift in the legislation represents a paternalistic conceptualization of childhood and sexuality.  It presumes that the state knows what is best when it comes to a young person’s sexual decisions.  But who can know more about their sexuality than the youth themselves?

Under Bill C-2, people under the age of 18 are viewed as unable to make certain decisions about sexual activity by themselves.  This does not take into account the multitude of developmental stages that exist between ages 0 – 17.  The current legal conception collapses and combines infancy, toddlers, adolescence, pre-pubescence and pubescence, etc into one discreet category.  This view denies the agency of the youth.

I believe that age of consent law should recognize and celebrate a mature young person’s ability to make decisions.  Education is important so that young people can make informed decisions of when to give consent and when to withhold consent. If it were up to me, I would endorse a law that actually empowers youth through the promotion of safer sex and education and allows youth to make informed decisions, leaving the law free to target actual perpetrators.

Thanks to JFCY Volunteer and PLE Team member Marsha Rampersaud for this opinion piece, which represents her personal views on the laws about age of consent. It does not represent the views of JFCY as a whole. 

New Video: Age of Consent

Check out JFCY’s new video on age of consent.  For those of you who want the details in brief, there's a quick summary of the law below:

Consent to sex is always your decision – The Canadian law requires that all people participating in sexual activity must give their own consent: you decide whether you want to be involved in any kind of sexual activity, from kissing and touching to intercourse.  


However, the law sets some limits on that, so that it is illegal if you are below a certain age to be sexually involved with certain other people. This means that if you are too young to consent to sex with a particular person, that older person could be charged with a criminal offence. 

When are you old enough to legally consent to sexual activity?

If you are…

• 12 or 13, you can consent to sex, but only with someone less than two years older than you.
• 14 or 15, you can consent to sex, but only with someone who is less than 5 years older than you. But, you CAN'T consent to sex with someone who is more than two years younger than you (or you could be charged).
• 16 and older, you can consent to sex with anyone older than you. 
• In all of these cases, however, if you are under 18, you cannot legally consent to sex with someone who is in a position of trust or authority over you (like your teacher, swim coach, Pastor). That person could be charged with a criminal offence.

Read the law: Criminal Code of Canada, s.150.1-153.


Thanks to PLE Team Volunteers Terence Chen (actor and video-editor), Lucas Treleaven (actor and script-writer), Arif Hussain (director), Tracy Chen (filming), Cydney  Kim (brainstorming),  Christine Doucette (law student advisor) and Andrea (script, JFCY lawyer supervisor) for their work on this video!