John Robin Sharpe on Bill C-12 (C-20)

Bill C-20 extends the prohibition to adults who are "in a relationship with a young person that is exploitive of the younger person." This would appear to be a catch all clause which could potentially cover almost any adult/youth sexual relationship.

The interesting thing about the child sex law changes is that they may offer some unintended opportunities for the defence. They could be used to expose actual real life adult/youth situations and through the courts and the media perhaps educate the public as to their nature better than academic studies and polemics. In determining whether the relationship is exploitive of the young person, "the judge shall consider the nature and circumstances of the relationship between the person and the young person, including the following:

a. the age difference between the person and the young person;
b. the evolution of the relationship: and
c. the degree of control or influence by the person over the young person."

How courts would interpret "the evolution of the relationship" in relation to exploitation is uncertain. Certainly if the adult is seen as a predator, exploitation could be readily inferred. Aggressive police investigators and prosecutors will try to paint the adult as predatory, or failing that, as manipulative. How they first met, and how the first "sex" occurred, could become the subject of detailed courtroom testimony. Any positive aspects of the relationship, for example improvements in the young person’s behaviour or mood. Will acts of friendship, generousity of time and material, doing special things together, all things traditionally associated with courtship, will they be deemed as manipulation, or as the child abuse industry terms it, "grooming"? And will spats which are common as adolescent and man pursue separate interests, will they be reinterpreted as evidence of emotional violence? The investigators could write soap operas. Cross examination on the evidence dealing with "first sex" could be both entertaining and educational as the nature of the relationship is examined in court and broadcast. What might happen if the public learns about actual pederastic situations and scenes, and their complexity. Optimistically it could breed more tolerance.

The young person however, could have to deal with probing cross examination about intimate aspects of the relationship and its history or evolution leading to a more complete picture which could reveal positive factors such as genuine friendship and mutual respect which might be used to question the Crown’s claims of exploitation. This could perhaps benefit some men who become entangled in the law. At present the relationship can simply be dismissed out of hand as carnal.
The fact that the bill’s proposals allow the nature of relationships to be publicly explored could help some defendants challenge the simplistic myths people believe about boylovers Under the bill the courts would not only be ruling on what acts occurred but would delve into the quality of relationships. This is a radical precedent in criminal law.

Just as how a relationship began may become a subject for detailed testimony in trials, and so may how they ended where it is not the result of police intervention. Who broke it off and why? The supposedly callous rejection of boys by men when they cease to be attractive will certainly be raised by the prosecution. In some cases this orthodox assumption may be very true.

"The degree of control and influence" by the adult over the young person can be highly variable and subjective. There is also the question of whether the influence and control have to be active, or is its mere existence a sufficient basis to infer exploitation? This subsection is no doubt intended to criminalize almost all adult/young person relationships. Certainly adults have power but that doesn’t mean that they use it. Many youth lovers deliberately leave the question of sex up to the young person.

An adult’s influence and potential control may depend on things like his respect, loyalty, trustworthiness, appreciated advice and counsel, and the young person’s feeling for him. Is this what the bill is talking about? Maybe but I doubt it. More likely the bill is trying to cover perceived power imbalances not covered by the position of authority and dependency provisions of the existing law. Power imbalance is a fundamental assumption of official thinking about adult/youth relationships and a central tenet of feminist and psychiatric theories. Equality concerns based on similarities preclude any consideration of the dynamics of asymmetrical or complementary relationships.

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