Date: August 23, 2020
01) Sexual Consent: The Criminal Law in Europe and Overseas
“Article in Archives of Sexual Behavior 29(5):415-61 · November 2000 with 31 Reads
DOI: 10.1023/A:1001986103125 · Source: PubMed
Abstract
What role can the criminal law play in the battle against child sexual abuse? Should sexual relations of and with, persons under a certain age be criminalized regardless of the circumstances, even if they are consensual (“age of consent,” “minimum age”)? Where should such a minimum age-limit be fixed? Should there be a special, higher age-limit for particular conditions (e.g., “seduction,” “corruption”)? Should sexual contacts with minors within a relationship of authority be criminalized generally, or just if authority is abused? Should criminal proceedings be instituted ex officio or upon complaint only? Should authorities be provided with a power of discretion or should they be obliged to prosecute and sentence in each case? In answering these questions, it is highly beneficial to have a look across the borders to the solutions other countries have reached. This study presents an overview on the criminal law governing the sexual behavior of, and with, children and adolescents in all European jurisdictions and in selected jurisdictions outside of Europe. It shows which categories of offences exist and from which age onward young people can effectively consent to various kinds of sexual behavior and relations in the different countries. All states in Europe and all of the studied jurisdictions overseas have minimum age limits for sexual relations, and punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe, in one-half of the jurisdictions, consensual sexual relations with 14-year-old adolescents are legal; in three-quarters, with 15-year olds; in a majority, this is also the case when the older partner has started the relation (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions, such relations are legal from age 16 onward. Most states apply a higher age limit for contacts in relationships of authority. If the authority is not misused, the age limit in most jurisdictions is set between 14 and 16; if it is misused, between 16 and 18. Most states make no difference between heterosexual and homosexual relations.”
Citations:
… 9 In some legal systems, such as variant applications of Sharia law, a person’s chronological age may be considered less important than their stage of physical development. 11 Furthermore, in many legal contexts there is no specific age established for consent to sex, per se, but an individual is only legally allowed to give such consent in the context of marriage. 9 Significantly, it is very common for states to establish different legal ages of consent for married and unmarried individuals, for boys and for girls, and for particular sexual partnerships and acts. …
… 9 Whilst there is very little consensus around what the specific age of sexual consent should be, what appears almost universal is the notion that youth and childhood sexuality is a matter for legal regulation, and that there is at least some threshold below which sexual activity involving a child or young person is considered problematic and thus subject to state prohibition and control. 11 Furthermore, the lowest established legal limits indicate consensus around the idea that this minimum age should never, at least, be set below the age of puberty. In fact, when age of consent provisions first started appearing in national legislation, they tended to reflect the onset of biological sexual maturity, with most states establishing the limit at around 12-13 years; this was also typically the time at which a person was legally able to get married. …
… In fact, when age of consent provisions first started appearing in national legislation, they tended to reflect the onset of biological sexual maturity, with most states establishing the limit at around 12-13 years; this was also typically the time at which a person was legally able to get married. 11 Thus, the history of state regulation of sexual activity has long established connections between physical/ biological development, reproduction, marriage, and the legal sanction of sexual agency and decision-making. 4 Over time, the age of sexual consent in many states around the world has gradually been rising, rupturing the link between puberty and sexual consent, and extending the period of time between which a child may first be physically capable of reproducing and first legally able to have sex. …
