INTRODUCTION AND BRIEF DESCRIPTION
Section 159(2) of the Criminal Code of Canada exempts consensual sexual acts performed in private between married couples or two consenting adults aged 18 or older from the provisions in subsection (1).
SECTION WORDING
159(2) Subsection (1) does not apply to any act engaged in, in private, between (a) husband and wife, or (b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.
EXPLANATION
Section 159(2) of the Criminal Code of Canada is a provision that essentially decriminalizes certain sexual acts that would otherwise be considered illegal. Specifically, this provision states that subsection (1) of Section 159 does not apply to any act engaged in, in private, between a husband and wife, or any two persons who are both 18 years of age or older and who both consent to the act. Subsection (1) of Section 159 makes it illegal to participate in anal intercourse, whether it is consensual or not, unless it is between a husband and wife. This provision was originally put into place to criminalize homosexual acts, as there was a stigma against homosexuality at the time. However, over time, this provision has been recognized as discriminatory and a violation of the Canadian Charter of Rights and Freedoms, and so this amendment to Section 159 was made in 2019. By removing the prohibition on consensual anal intercourse between two individuals over the age of 18, Section 159(2) recognizes the importance of personal autonomy and bodily sovereignty. It essentially affirms that adults have the right to engage in consensual sexual activities without fear of criminal consequences, as long as they are not harming or exploiting anyone else. It is worth noting, however, that this provision only applies to acts engaged in, in private. This means that engaging in public acts of sexual nature, regardless of whether both parties have consented or not, can still lead to criminal charges under other provisions of the Criminal Code. Additionally, any sexual act that involves someone who is under the age of 18, even if they give consent, can still lead to criminal charges under the applicable provisions of the Criminal Code.
COMMENTARY
Section 159(2) of the Criminal Code of Canada has been a hotly debated topic in recent years as it pertains to sexual acts performed between consenting adults in private. Essentially, the section allows for any sexual act to be performed by two consenting adults, even if the act in question might be considered morally or socially taboo or unacceptable. The section specifically exempts certain sexual acts from the criminal code, as long as they are performed between individuals who are legally allowed to engage in sexual activity. This means that two individuals over the age of 18 who have given their consent to engage in a specific sexual act are legally allowed to do so without fear of prosecution. This section of the criminal code has been the subject of much debate, largely due to the fact that certain sexual activities that were once taboo or illegal are now considered more acceptable or mainstream. For example, homosexuality was once considered a criminal offense, but is now recognized as a legitimate form of sexual expression. Despite this, many individuals still view homosexuality and other types of sexual behavior as immoral or unacceptable, and as such, they feel that section 159(2) should be repealed. In addition to the debate over the morality of certain sexual activities, there is also concern over the issue of consent. While the section states that both parties must consent to the sexual activity, some argue that there may be situations where one party feels coerced or pressured into the activity. This could be especially true in cases where there is a significant power differential between the two parties, such as in the case of consensual sexual activity between a boss and an employee. Despite the concerns over morality and consent, many legal experts argue that section 159(2) is an important part of the criminal code as it allows individuals to express themselves sexually without fear of persecution. They point out that consenting adults should have the right to engage in any sexual activity that does not harm others or violate their rights. In conclusion, Section 159(2) of the Criminal Code of Canada is a contentious issue that has been the subject of much debate and controversy. While some argue that the section should be repealed due to moral or consent concerns, others believe that it is an important part of the criminal code that allows consenting adults to express themselves sexually. Ultimately, the continued debate over this section highlights the importance of dialogue and discussion in shaping societal attitudes towards sexual expression and individual rights.
STRATEGY
Section 159(2) of the Criminal Code of Canada offers a legal loophole that allows for some very specific acts to be performed in private between consenting adults. The critical thing to consider is that this legal exception applies only to sex acts and not to any other types of activities, such as violence or harassment. As such, those who wish to engage in sexual activities in private must understand the terms and limitations of this section to avoid criminal charges. One of the key strategic considerations is to ensure that both individuals involved in the act are over the age of eighteen. Failing to do so could result in criminal charges under section 159(1) of the Criminal Code of Canada. Another important consideration is obtaining explicit consent from both participants. This should not just be a one-time discussion but rather an ongoing dialogue to ensure that both parties are comfortable with the activities being engaged in and can withdraw their consent if necessary. Another strategic consideration is the need for privacy. Section 159(2) applies only to acts performed in private, so engaging in these activities in a public or semi-public setting could still result in criminal charges. Therefore, it is critical to choose a location that is truly private and not accessible to anyone else who might inadvertently stumble upon the activity. For example, choosing a secluded area in the wilderness ensures that others will not accidentally see or disturb them. When dealing with this section of the Criminal Code of Canada, it is also crucial to understand the current cultural and political climate. While Section 159(2) may protect the legal right of two consenting adults to engage in specific activities in private, it is still critical to be aware of potential legal issues if these behaviours come to the attention of the public. Many people may take offence at certain sexual acts or consider them immoral, which can lead to negative social or legal consequences, such as harassment or discrimination. Therefore, it may be wise to employ a strategy that emphasizes discretion and privacy. For example, using code words or other modes of communication that are only understood by the two participants can help maintain secrecy. It can also be helpful to engage in activities that are less likely to be observed by others, such as to avoid using bright lights or playing loud music that may draw attention to the activity. Lastly, a key strategy is to ensure that there is a clear understanding of the legal implications of the sexual acts being performed. It is vital to know which types of sexual activities are legally protected under section 159(2) and which ones are not. Engaging in illegal activities, such as child pornography or non-consensual acts, will still result in criminal charges, even if they are performed in private. In conclusion, Section 159(2) of the Criminal Code of Canada offers some legal protection for individuals who choose to engage in certain sexual acts in private. However, this protection is limited and requires careful consideration of the terms and conditions outlined in the section. Effective strategies for dealing with this section include ensuring both parties are over eighteen, obtaining explicit and ongoing consent, respecting privacy, considering cultural and political sensitivities, employing discretion, and ensuring a clear understanding of the legal implications of the sexual acts involved.