What Is Statutory Rape (Statutory Sexual Assault)?

“Statutory rape” is a commonly used term (especially in the U.S.) to describe sexual activity that is technically consensual between the participants, but illegal due to one participant’s young age.

Canadian law doesn’t explicitly use the term “statutory rape,” but such cases are typically prosecuted under provisions related to sexual offences against minors (for example, sexual interference for victims under 16, or sexual exploitation when a person in a position of trust abuses a 16- or 17-year-old).

These are serious criminal offences carrying severe penalties. In fact, even a first-time offender convicted of sexual conduct with a minor faces mandatory jail time.

“No child under the age of 16 can lawfully provide consent for sexual contact with an adult. So, even if the younger person is a willing partner in sexual contact, the adult can be charged with a criminal offence.”

The quotes above underline the key point: a minor’s agreement or “willingness” is irrelevant in the eyes of the law – the act is illegal because of the age of the young person. The law essentially considers such situations sexual assault by statute, hence the term statutory rape.

What is Considered to be a Statutory Rape (Statutory Sexual Assault)?

Under the Criminal Code of Canada, the primary child sexual offences include sexual interference (Section 151), invitation to sexual touching (Section 152), and sexual exploitation (Section 153). Sexual interference covers touching any part of the body of a person under 16 for a sexual purpose (this can range from fondling to intercourse). Invitation to sexual touching is when an adult invites or incites a person under 16 to touch the adult (or themselves) in a sexual way.

Age of Consent in Canada

Canada’s age of consent for sexual activity is 16 years old. This is the general rule across all provinces and territories. In other words, a person must be at least 16 to legally agree to any form of sexual activity – from kissing and touching to intercourse.

If someone is younger than 16, they are not legally capable of consenting to sex, and any sexual activity with them can be prosecuted as a crime. (Not long ago, the age of consent was lower – it was 14 years prior to 2008, when Canadian law raised it to 16 to better protect youth from exploitation. This change made Canada’s laws stricter in response to modern concerns like online predators.)

Once a person reaches 16, they are generally free to consent to sex with adults of any age. However, if the older person is in a position of trust, authority or dependency relative to the 16- or 17-year-old, the law raises the effective age of consent to 18.

In other words, a 16 or 17-year-old cannot legally consent to someone like a teacher, coach, doctor, employer, caregiver, or anyone else who has power, trust or authority over them.

Sexual contact under those circumstances is a crime called sexual exploitation (since the relationship is inherently exploitative even if the youth ostensibly “agrees”). For example, a 17-year-old high school student cannot consent to sexual involvement with their 30-year-old teacher – that would be illegal because of the power dynamic, until the younger person is at least 18.

It’s important to emphasize that all these exceptions cease to apply if the older person is in a position of trust or authority over the younger one, or if the relationship is otherwise exploitative of the youth. The close-in-age allowances are meant for normal peer relationships – e.g. high school sweethearts – not for predatory situations.

Is It Statutory Rape if Both Are Under 16?

If two teenagers (or children) who are both under the age of consent engage in sexual activity with each other, are they both committing statutory rape?

The scenario might be, for example, two 15-year-olds who are boyfriend and girlfriend, or a 15-year-old and a 14-year-old experimenting sexually.

As long as they are close in age – such situations are not treated as crimes under Canada’s “close-in-age” exemption rules discussed earlier. The law is designed to avoid dubbing consensual teenage behavior as criminal so long as it occurs between peers of roughly similar age.

If both individuals are under 16 and close in age, neither is considered to be committing a sexual offence against the other. Canadian law effectively recognizes mutual consent between age-mates (even though legally, neither can give “consent” in the strict sense, the law provides a defence or exception in these cases).

Close-In-Age Expemptions

That said, the law also recognizes that consensual sexual exploration can occur between teenagers close in age. To avoid criminalizing all teenage intimacy, Canada’s Criminal Code provides specific “close-in-age” exemptions (also called peer group exemptions). These rules allow minors below 16 to engage in sexual activity with peers around their age, as long as the age gap is small and no one is in a position of trust or authority over the other.

Also, these exemptions only apply to peers; an adult cannot use a “close in age” defense with someone under 16. If an adult (18 or older) engages in sexual activity with a 14- or 15-year-old beyond the allowed age gap, or with anyone under 14 at all, that is unequivocally a criminal act.

“I thought he/she was older”

In Canada, mistaken belief about the minor’s age is not a defence unless the accused “took all reasonable steps to ascertain the age of the complainant”.

Essentially, any sexual contact with a person below the age of consent automatically becomes a sexual crime, because the law deems the younger person incapable of consenting. This is why we sometimes also call it “statutory sexual assault” – the assault is defined by statute (law) based on the age of the victim.

What if I Can Prove That I Had His/Her Consent?

Consent is not a defence. Even if the younger person willingly participated or even initiated the sexual activity, the older party is criminally liable. The law explicitly states that if the complainant is under 16, “it is not a defence that the complainant consented to the activity”. The rationale is to protect minors from exploitation and from their own potential lack of judgment; the law removes the onus from the child and places full responsibility on the older individual to avoid the sexual situation.

The prosecution doesn’t need to prove that the accused intended to break the law or even knew the victim’s age. If the ages don’t line up with the legal allowances, the offence is made out. An accused can try to argue mistake of age, but Canadian law makes this difficult: it’s only a defence if the accused “took all reasonable steps to ascertain the age” of the young person.

For example, if a 21-year-old met a person in an 18+ nightclub who turned out to be 15 with a fake ID, the 21-year-old would have to show the court evidence of diligent efforts to verify age (simply taking their word for it may not be enough).

In practice, successful use of the mistaken age defence is rare – the default expectation is that adults bear the risk and must ensure their partner is of legal age.

Who can be charged?

Any person who is over the age of 12 (the minimum age of criminal responsibility in Canada) can potentially be charged with a sexual offence against a minor. While typically the accused is an adult, teenagers can also face charges if, say, a 17-year-old engages in sex with a 13-year-old – the 17-year-old, despite also being a youth, could be charged under the youth justice system for a sexual interference offence.

The law’s priority is the protection of the younger party. Similarly, a person in their late teens (18 or 19) could be charged for sexual involvement with someone just a few years younger if it falls outside the close-in-age exemption.

When It Is a Statutory Rape And When It Is Not

If both partners are under 16 and both are very close in age, generally no crime has occurred. For example:

A 13-year-old and a 14-year-old kissing or having sexual contact would not be considered statutory rape under the law’s close-in-age exemption. They are close in age (1 year apart) and both under 16, so although the behavior might be concerning to parents, it isn’t a criminal offence.
A 14-year-old and an 18-year-old who are boyfriend and girlfriend and willingly engage in sexual activity would not be charged under statutory rape laws either – this pairing falls within the 5-year age difference rule (18 is exactly 4 years older than 14). The law views this as just within a tolerable range for youth sexual experimentation.
By contrast, a 14-year-old and a 19-year-old would violate the law (5-year difference) – the 19-year-old in that case would be committing an offence. Likewise, a 15-year-old with a 21-year-old is illegal. In these scenarios, the older partner could be charged and potentially convicted for sexual interference, regardless of any claim that “the 15-year-old wanted it” or “lied about their age.”
Two 15-year-olds who consent to have sex with each other are not committing any offence – neither is five years older than the other, obviously. The law does not intend to punish consensual teenage couples of the same age. In fact, the Criminal Code even provides that a 12- or 13-year-old cannot be prosecuted for sexual offences against another minor unless force, coercion, or a trust/exploitation situation is present (this prevents pre-teens from being labeled sex offenders for exploratory behavior with peers).
If one partner is, say, 13 and the other is 16, then the 16-year-old is above the allowed age difference and can be charged with an offence. It doesn’t matter that 16 is also a teenager; in that pairing, 16 is an adult in the eyes of the law relative to the 13-year-old. There have indeed been cases of older teens charged for sexual interference in Canada when the age gap exceeded the legal limit.

Who Can File Statutory Rape Charges?

If someone suspects that a statutory rape (i.e. sexual assault against a minor) has occurred, who can take action to initiate charges?

In Canada, criminal offences are prosecuted by the state, not by private individuals. This means that individuals themselves do not “press charges” the way it’s often phrased in movies or TV. Instead, any person can report the suspected crime to the police, and then it’s up to the police and Crown prosecutors to lay charges and carry the case forward.

“Anyone who knows about a sexual assault can make the complaint, not just the person who has experienced the assault. The police investigate the complaint. Then the Crown decides whether to formally accuse the suspect of a crime.”

In the context of statutory rape, the victim (if old enough) or their parent/guardian will typically be the one to go to the authorities, but it could also be a teacher, doctor, family friend, or any concerned citizen who becomes aware of the situation.

For example, if a school counselor learns that a 15-year-old student is sexually involved with a 25-year-old, the counselor can notify police even if the student doesn’t want to – and the authorities can still proceed with an investigation. As the quote above explains, anyone with knowledge can file a complaint with the police.

Once the police receive a report, they will investigate the allegations. This might involve interviewing the young person, the suspected offender, and other witnesses, as well as gathering any physical evidence (text messages, photographs, etc. if applicable). If the police believe an offence took place, they will consult with a Crown prosecutor (government lawyer) and charges may be laid against the suspect. In Canada, the formal charges are usually laid in the name of the Crown (often written as R. v. [Defendant], with “R” standing for Regina or Rex, i.e., the Crown/King). The Crown attorney is responsible for prosecuting the case in court.

It’s important to note that once charges are laid, the case is out of the complainant’s hands. The victim cannot “drop the charges” because they were never the one prosecuting to begin with – the case belongs to the Crown

Even if a young victim or their family has a change of heart or doesn’t want to go through with a trial, the Crown can still pursue the prosecution if there is enough evidence to proceed. (That said, the cooperation and testimony of the victim is usually very important in these cases, so in practice the Crown will consider the victim’s willingness to participate; but legally the decision to continue or withdraw charges lies with the prosecution, not the victim.)

The Procedure

In summary, statutory rape charges are filed by the state. The process generally works like this:

Report/Complaint: Someone reports the suspected underage sexual offence to the police. (This could be the minor themselves, a parent, a teacher, a doctor, etc. By law, certain professionals have a duty to report child abuse, which would include sexual abuse.)
Police Investigation: The police investigate the allegation. They may take statements, collect evidence, and in serious cases they can arrest the suspect during the investigation if needed.
Charges Laid: If there is evidence of an offence, the police (often in consultation with a Crown prosecutor) will lay charges under the appropriate Criminal Code sections (e.g., sexual interference, sexual assault, etc.). The case is then handed over to the Crown prosecutor’s office.
Prosecution: The Crown prosecutor will handle the court proceedings against the accused. The case will go through the criminal justice process – bail hearing, possibly a preliminary inquiry, then trial or plea bargaining, etc. – with the Crown representing the public interest.

For How Long Do You Go to Jail for Statutory Rape?

Canadian law sets both mandatory minimum sentences and maximum sentences for these crimes.

For the basic child sexual offence of sexual interference (touching a person under 16 for a sexual purpose), the Criminal Code prescribes the following penalties:

Every person who, for a sexual purpose, touches, directly or indirectly, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

In simpler terms, if prosecuted as an indictable offence, a statutory rape case carries a minimum of 1 year in prison and up to 14 years maximum. If prosecuted summarily, the minimum jail is 90 days and the maximum is 2 years less a day (which is just under two years).

More severe cases, such as prolonged abuse of a young child, can result in sentences in the upper end (10+ years). On the flip side, the absolute minimum anyone convicted of a sexual offence against a minor will get (assuming the charge has a mandatory minimum) is typically 90 days (if summary) or 1 year (if indictable) – and those short terms would usually be reserved for relatively less severe scenarios (perhaps a young offender close in age to the victim, or where the sexual contact was limited and there were strong mitigating factors).

The decision to proceed summarily or by indictment is typically made by the Crown and can depend on the severity of the allegations – more serious cases (e.g., prolonged abuse, very young victim, significant breach of trust, etc.) are likely to proceed by indictment, triggering the higher range of punishment.

It’s worth noting that other related offences have similar penalty ranges. For example, invitation to sexual touching (s.152) and sexual exploitation (s.153) also carry 14-year maxima and 1-year mandatory minimums on indictment.

If a sexual assault charge is laid (s.271 of the Code) in a case involving a minor, and it’s indictable, it actually has no mandatory minimum, but often the Crown will choose the child-specific charges that do have minimum sentences. In any event, Canadian judges have emphasized that sexual crimes against children almost always warrant significant jail time, even for first offenders, due to the need for denunciation and deterrence.

While the law sets those floors and ceilings, the actual sentence in a given case will depend on the circumstances. Courts will consider factors such as:

the age of the victim (offences against very young children usually attract harsher sentences),
the age difference between offender and victim,
the nature of the sexual acts (intercourse or penetration generally results in a higher sentence than something like over-the-clothes touching, though both are serious),
the duration and frequency of the abuse (a one-time incident might be treated more leniently than an ongoing pattern of abuse),
whether the accused was in a position of trust (e.g., a parent, teacher, coach abusing their role – this is very aggravating), the impact on the victim,
and the offender’s background (do they have prior convictions? are they genuinely remorseful? did they plead guilty or make the victim testify at trial?).

Canadian sentencing also allows for consecutive sentences if there are multiple victims or multiple distinct offences. So an offender convicted of abusing two different children could get separate sentences for each, served one after the other, leading to a longer total time in custody.

Some Case Studies

To give an example of sentencing in practice:

In one recent case in Alberta (2024), a 35-year-old high school teacher pleaded guilty to sexual exploitation of her 17-year-old student. The court sentenced her to three years in prison. The Crown prosecutor noted that three years was toward the lower end of the range for that kind of offence, given the breach of trust involved – but it was a joint recommendation by Crown and defence as part of a plea deal. In another case in Nova Scotia, a male teacher who was convicted by a jury of sexually exploiting a student received a four-year prison sentence for his crimes.

What Are The Chances To Avoid Jail?

It’s exceedingly rare for someone guilty of what the public considers “statutory rape” to avoid jail altogether; house arrest or suspended sentences are generally off the table due to Parliament’s imposition of jail minimums for these offences.

What Are The Consequences?

The impact of a statutory rape conviction “extends beyond a jail term… sex offender’s registry, and implications for future employment, travel, immigration status, and more.” In short, the punishment is not only the time behind bars but also a host of collateral consequences that can last a lifetime.

Beyond the raw jail time, a person convicted of a sexual offence against a minor will also face other consequences. They will be required to register as a sex offender in the national sex offender registry (under Christopher’s Law/SOIRA requirements). They will have a criminal record that can severely limit their future opportunities.

Travel to other countries (especially the US) can be impeded by a sex offence record. Many employers will not hire someone with a sex crime conviction, especially anything involving children or vulnerable persons, so the individual’s career and reputation are typically shattered. If the person isn’t a Canadian citizen, it’s likely to affect their immigration status or ability to remain in Canada.

If someone is charged with such an offence, it is critical to get legal advice immediately because the stakes (both in terms of personal liberty and future life impact) are extremely high.

How Much is Bail for Statutory Rape?

When a person is charged with a serious crime like sexual assault of a minor, they will typically have to go through a bail hearing to determine if they can be released from custody while awaiting trial, and under what conditions. A common question is, “How much is bail for this type of charge?” It’s important to understand that Canada’s bail system doesn’t work like a price tag per offence – there isn’t a fixed bail amount for “statutory rape” or any other crime. In fact, in Canada, bail is usually not a cash amount that you pay upfront at all (unlike the U.S. system of posting bail or bond). Instead, Canadian bail usually involves a promise or recognizance often backed by a surety (a person who supervises the accused and promises to pay a certain amount if the accused absconds or breaches conditions).

“Bail is not a fee to be paid for a person’s release. If the accused follows the conditions of the bail order, the surety will not be asked to pay any of the bail money for which the surety signed, therefore bail will cost nothing.”

When someone is granted bail, they (or their surety) might pledge an amount of money – say, $5,000 or $10,000 – but they do not actually hand over that money to the court. No money is paid unless the accused fails to comply with their bail conditions (for example, doesn’t show up to court, or breaches house arrest). If they comply fully, no one pays anything at the end of the case.

So, asking “how much is bail for statutory rape?” is a bit of a trick question. The cost of bail in terms of dollars is normally zero, provided the person obeys their release conditions.

However, there are other aspects to consider:

Will bail be granted at all?

Statutory rape (sexual interference, etc.) is a serious charge. The court will consider if the accused poses any risk to the public or the victim if released, and whether they’re likely to show up for trial. If the allegations are very severe (e.g., abuse of a very young child, or the accused has a prior record) the Crown might argue for detention (no bail).

Canadian law does have a presumption in favour of releasing an accused person, but for serious offences the hurdle to get bail is higher. Judges can deny bail if they believe detention is necessary for public safety or to maintain confidence in the justice system.

Conditions of release

If bail is granted, the judge will impose conditions to mitigate any risks. For sexual offences, common bail conditions include: no contact with the victim or any witnesses; no contact with anyone under a certain age (except possibly specified family members in presence of an adult); not to attend certain places like schools, parks, or other areas children frequent; not to use the internet or social media to communicate with minors; perhaps a curfew or house arrest; and supervision by a surety. The surety (often a close relative) may be required to pledge a significant amount of money (which they risk losing if they fail to supervise the accused properly).

Financial pledge (recognizance)

The amount of money that a surety has to pledge can vary widely. It isn’t standardized by charge, but rather set according to the accused’s circumstances and the surety’s means. For a serious charge like this, courts often ask for a larger pledge (many thousands of dollars) to emphasize the seriousness. But again, this money is only at stake if the accused violates bail. If they comply, the surety never actually pays it.

Is There a Statute of Limitations for Sexual Assault in Canada?

In Canada, serious sexual offences – including all forms of sexual assault – have no statute of limitations. This means a person can be charged many years, even decades, after the alleged crime occurred, as long as there is evidence to support the charge.

“Sexual assault is a crime. There is no time limit for making a complaint of sexual assault to the police.”

Canada’s criminal law divides offences into categories: indictable offences (serious crimes) generally have no limitation period, whereas summary conviction offences (less serious) usually must be charged within 12 months of the incident.

Most sexual offences of a significant nature are either indictable or “hybrid” (meaning the Crown can choose to proceed indictably). In practice, virtually all sexual offences involving minors will be treated as indictable due to their gravity, and thus there is no deadline by which charges must be laid.

Even for sexual assault in general, the Criminal Code was amended in the 1980s to eliminate time limits so that victims of old sexual crimes could seek justice when they were ready.

We have seen this in many historical abuse cases – for example, allegations from the 1970s or 1980s leading to charges and prosecutions today. Police can pursue an investigation long after the fact. Of course, the passage of time can make proof more challenging (memories fade, evidence might be lost, witnesses might be deceased), but legally nothing stops a charge from being filed in an old case of statutory sexual assault.

It’s also noteworthy that anyone who knows about the sexual assault can report it at any time. The victim doesn’t have to be the one to come forward initially. Sometimes, for instance, a child might confide in someone years later, or a family member might discover evidence of past abuse – they can report it even if the victim is not immediately on board.

The police will then approach the now-older victim to see if they are willing to give a statement. But again, there is no cutoff date after which the door is closed.

For completeness, if a case were to be prosecuted by summary conviction (which is rare for these offences, but let’s say a minor sexual assault charge was proceeded with summarily for some reason), technically the law says summary charges should be laid within 12 months of the offence. However, sexual interference and exploitation are hybrid offences and the Crown almost always opts for indictment, specifically to avoid such limitations and because of the seriousness.

A case can be brought forward at any time. Whether it’s 5, 10, or 30+ years later, a perpetrator can still face charges for sexual crimes against a minor. This is an important aspect of Canadian law that reflects the reality that victims of sexual abuse often need time before they are ready to report (especially when the victim was a child, they may only process and disclose the trauma in adulthood).

The justice system remains open to them whenever they come forward. From an accused’s perspective, one can never assume they are “in the clear” just because a long time has passed since the illegal act – there is always a risk that a report and charges could emerge later.

How We Can Help You

Facing a charge of statutory sexual assault (sexual interference, sexual exploitation, or related offences) in Canada is an extremely serious and life-altering situation. The legal system can be intimidating, and the stakes – as this article has shown – include mandatory jail time, a criminal record, and the stigma of being labeled a sex offender. If you or someone close to you has been charged with an offence of this nature, it’s crucial to obtain experienced legal representation as soon as possible.

At Jeff Reisman Law, we understand how overwhelming and frightening these charges can be. Our team has extensive experience defending clients against all types of sexual offence allegations, including those involving minors. We are here to protect your rights and ensure you get a fair process. Remember, a charge is not a conviction – the Crown must prove every element of the offence beyond a reasonable doubt. We will thoroughly investigate the evidence, challenge any weaknesses or inconsistencies in the prosecution’s case, and present a strong defence on your behalf.

How we can assist you:

Legal Advice & Strategy: We will explain the charges and the legal process in plain language, so you understand what to expect. Every case is unique – for some, the best approach might be negotiating a lesser charge or a plea to avoid a harsher outcome; for others, it might be fighting the charges at trial. We’ll develop a tailored defense strategy that aims for the best possible result, whether that’s an acquittal, a dismissal, or minimizing the penalties.
Bail Hearings: If you have just been charged and are facing a bail hearing, we can represent you to help you secure reasonable bail. We’ll propose a plan (such as a suitable surety and supervision conditions) to persuade the court that you can be released safely. Getting you out on bail allows you to better work on your case and resume some normalcy while the matter is ongoing.
Evidence Gathering: Our team will conduct a thorough review of the prosecution’s evidence and also gather any evidence in your favor. In statutory sexual assault cases, there may be text messages, social media interactions, or witness statements that can shed light on consent issues, mistaken age, or credibility of the complainant. We work with professional investigators when needed to ensure no stone is left unturned.
Challenging the Prosecution: We will file and argue any appropriate pre-trial motions – for example, to exclude evidence that was improperly obtained, or to get charges dropped if there have been unreasonable delays or if there is not enough evidence to proceed. We are also well-versed in the sensitive evidentiary rules that often come up in sexual offence cases (such as restrictions on questioning the complainant’s sexual history, etc.), and we’ll navigate those to maintain a robust defence.
Trial Defence: In the event your case goes to trial, we will vigorously defend you in court. This includes cross-examining witnesses (challenging the reliability of recollections, highlighting inconsistencies or biases), presenting any defense evidence or witnesses, and making persuasive arguments to the judge or jury. Our goal is to cast doubt on the prosecution’s case wherever possible. For example, if there is an issue of mistaken age and you did take steps to verify the complainant’s age, we’ll bring that forward. If there are questions about the complainant’s credibility or motives, we will ensure the trier of fact considers those issues.
Sentencing Advocacy: If a conviction does occur (or if you decide to plead guilty), we can still provide valuable help by advocating for the fairest possible sentence. We will gather mitigating factors – such as your lack of prior record, positive character references, evidence of rehabilitation or counseling, etc. – to present to the court. While the law may impose mandatory minimums, there is often room to argue for a sentence at the lower end of the range. We’ll also seek to minimize ancillary consequences; for instance, making sure any probation conditions are reasonable, or advocating on issues like credit for pre-trial custody.

Throughout the process, our firm prioritizes discretion, compassion, and professionalism. We know that being accused of a sexual offence involving a minor carries a heavy social stigma. Our communications with you are confidential and judgment-free. Our role is not to judge you, but to defend you. We will handle your case with the utmost sensitivity and dedication to protect your dignity and future.

Jeff Reisman Law has a strong track record in criminal defence, including defending clients against sexual assault allegations. We will stand by your side from start to finish – from the first consultation, through police interviews, court appearances, and (if it comes to it) trial. Our goal is to achieve the best outcome so that you can move forward with your life.

Contact us for a free consultation if you need help. We can discuss the details of your situation privately and outline how we can assist. Remember, early legal intervention can make a significant difference in these cases. You do not have to face these charges alone. We are here to help you navigate the legal system, assert your rights, and work towards a favorable resolution in a very challenging time.

Jail Time for Statutory Rape in Canada: What to Expect