Age of consent
While the phrase age of consent typically does not appear in legal statutes,[1] when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent of consenting to sexual acts. This should not be confused with the age of majority, age of criminal responsibility, or the marriageable age.
The age of consent varies from jurisdiction to jurisdiction.[1] The median seems to range from 14 to 16 years, but laws stating ages ranging from 9 to 21 do exist. In many jurisdictions, age of consent is interpreted to mean mental or functional age.[2] As a result, victims can be of any chronological age if their mental age is below the age of consent.[3] Some jurisdictions forbid sexual activity outside of legal marriage completely. The relevant age may also vary by the type of sexual act, the sex of the actors, or other restrictions such as abuse of a position of trust. Some jurisdictions may also make allowances for minors engaged in sexual acts with each other, rather than a single age. Charges resulting from a breach of these laws may range from a relatively low-level misdemeanor such as "corruption of a minor," to "statutory rape" (which is considered equivalent to rape, both in severity and sentencing).
There are many grey areas in this area of law, some regarding unspecific and untried legislation, others brought about by debates regarding changing societal attitudes, and others due to conflicts between federal and state laws. These factors all make age of consent an often confusing subject, and a topic of highly charged debates.[1]
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History
Based on ancient Jewish law, Bar and Bat Mitzvah placed age of consent at 12 for girls and 13 for boys.[4]
Social attitudes
Social (and the resulting legal) attitudes toward the appropriate age of consent have drifted upwards in modern times. For example, while ages from 10 to 13 were typically acceptable in western countries during the mid-19th century,[1] 15 to 18 had become the norm in many countries by the end of the 20th century.
Moral philosophy
The general moral philosophy behind age of consent laws is the assumed need for the protection of minors. It is a common belief in many societies that minors below a certain age lack the maturity or life experience to fully understand the ramifications of engaging in sexual acts. These fears may include but are not limited to resulting pregnancies and psychological or physical damage. There is an ongoing debate in many cultures regarding child sexuality as it relates to age and an appropriate age of consent.[1] It is these debates that have informed the various laws in different jurisdictions and account for their disparity.
Religious basis
It should be noted that no major religion actually says it is wrong for someone over 18 to have sex with someone under 18, although some say that it is wrong for a man to have sex with a child. The question then becomes what is a child and what is an adult. Many legal systems refer to or are informed by the moral viewpoint of lawmakers, or refer to or appeal to cultural and religious norms. For example the Common law systems practiced in the United Kingdom and its former colonies were developed in the context of Christian values. Similarly the Laws in many Muslim based countries are based on the Qur'an and the resulting Sharia. In some legal systems secular philosophies form part of the culture and likewise are part of the context in which the laws are formed, sometimes leading to changes in the law of previous periods. Difference in opinion between various religious and secular groups forms a part of the cultural context of age of consent.
Law
| Sex and the law |
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 Bishop John Atherton, hanged for Sodomy. |
| Social Issues |
| Sex and the law · Age of Consent · Rights |
| Pornography · Miscegenation · Censorship |
| Same-sex marriage · Red-light district |
| Norms · Slavery · Objectification |
| Antisexualism · Violence · Ethics |
| Public morality · Homophobia · Essentialism |
| Specific Offenses |
| May vary according to Jurisdiction |
| Sodomy and Buggery · Bestiality · Rape |
| Statutory rape · Incest · Extreme pornography |
| Sexual assault · Public indecency · Adultery |
| Sexual Abuse · Child Sexual Abuse |
| Sexual harassment · Prostitution and Pimping |
| Deviant sexual intercourse · Child pornography |
| Child grooming · Prostitution of children |
| Portals: Law · Criminal justice |
Sexual relations with a person under the age of consent is in general a criminal offence, with punishments ranging from community service up to and including the death penalty. Many different terms exist for the charges laid and include child sexual abuse, statutory rape, illegal carnal knowledge, or corruption of a minor.[1]
The enforcement practices of age of consent laws tend to vary depending on the social sensibilities of the particular culture (see above). Often enforcement is not exercised to the letter of the law, with legal action being taken only when a sufficiently socially-unacceptable age gap exists between the two individuals, or if the perpetrator is in a position of authority over the minor -- e.g., a teacher, priest or doctor. The gender of each actor can also influence perceptions of an individual's guilt and therefore enforcement.[1]
In many jurisdictions, age of consent is interpreted to mean mental or functional age.[2] As a result, victims can be of any chronological age if their mental age is below the age of consent.[3]
Close in age exceptions
Defenses
Main article: Age of consent reform
The age of consent is a legal barrier to the minor being able to give consent and as such obtaining consent is not in general a defence to having sexual relations with a person under the prescribed age. Common examples include:
- Limited mistake of age – Where the accused can show mistaken belief that the victim was not under the age of consent. However, where such a defense is provided, it normally applies only when the victim is close to the age of consent or the accused can show due diligence in determining the age of the victim. (e.g. A 17 year old who used a fake ID to get into a bar for people 21 & older).[5]
- Marriage – In those jurisdictions where the marriageable age is less than the age of consent.
- Rape – where someone under the age of consent detains and rapes someone over the age of consent.
These different defenses can change dramatically from jurisdiction to jurisdiction, even between neighbouring states of the same union with the same age of consent.
Extraterritoriality
Increasingly the age of consent laws of a state are applied not only to acts committed on its own territory, but also acts committed by its nationals or inhabitants on foreign territory[1]. This is of questionable legality under international law but such questions are often ignored or neglected, for the most part for social and/or religious reasons. Such provisions have been frequently adopted to help reduce the incidence of child sex tourism. See the relevant sections below for discussion of laws in specific jurisdictions. See also universal jurisdiction; in principle the effective age of consent is the highest of all applicable ones.
Homosexual and heterosexual age discrepancies
Some jurisdictions (such as Bahamas, Bermuda, Chile, Gibraltar, Guernsey, Suriname and Vanuatu) have higher ages of consent for homosexual intercourse,[6] while 70 out of 195 jurisdictions around the world outlaw homosexual intercourse altogether. In Canada age of consent for anal sex is 18 compared to 16 for vaginal sex, which is being opposed by gay rights activists and has been declared unconstitutional by the courts in Ontario and Quebec.[7][8] These disparities are increasingly being challenged. Cases such as Lawrence v. Texas in the Supreme Court of the United States and Morris v. The Crown (United Kingdom) in the European Court of Human Rights have set precedents for international law.[9]
Other concerns
Marriage
The age at which a person can be legally married can also differ from the age of consent. In some jurisdictions this can negate the age of consent laws where the marriageable age is lower than the age of consent, but in others it does not. Further still, some jurisdictions have no actual age of consent but require persons to be married before they can legally engage in sexual activity.
Pornography
Variations also exist in some countries between the age of consent and the age at which an individual can appear in pornographic images and films. In many jurisdictions, the minimum age for legal participation and even viewing of such productions is 18. Films and images showing individuals under the age of 18 (or who appear to be under in some jurisdictions) in applicable jurisdictions can be classified as child pornography, even though the legal age of consent in those same jurisdictions is lower than 17.
Prostitution
While the legality of adult prostitution varies between different parts of the world, the prostitution of minors is illegal in most countries. Furthermore, some countries enforce worldwide jurisdiction over any involvement in child prostitution by their nationals.
The most common definition of a 'child' in this context is a person who is under the age of 18, although the laws of some countries distinguish between teenage prostitutes and the prostitution of younger children. For example, the Thai government defines a teenage prostitute as being between 15 and 18 years old, while the Japanese government defines one as being between 13 and 18. The age boundary for teenage prostitution is generally not the same as the age of consent in those countries.
Statutory rape
Where a jurisdiction's age of consent laws for sexual activity treat those convicted of those laws with the same severity as other forms of rape the law is often referred to as statutory rape. The different titles of age of consent laws include statutory rape, rape of a child, corruption of a minor, carnal knowledge of a minor and others. However, in the vernacular many of these terms are interchangeable and little differentiation is made.
Initiatives to change the age of consent
Age of consent reform refers to the efforts of some individuals or groups, for different reasons and with varying arguments, to raise, lower, abolish or otherwise alter age of consent laws. These efforts advocate five main positions:
- An introduction of close-in-age exemptions.
- A change in the way age of consent laws are examined in court.
- An increase in the ages of consent, more severe penalties for violation of these laws or both.
- A decrease in the ages of consent, less severe penalties for violation of these laws or both.
- To abolish the age of consent laws altogether or as a temporary practical expedient.
There is an ongoing debate over these laws. However, critics on both sides of these arguments are often arguing at cross purposes owing to their differences in defining what exactly the age of consent laws are to achieve and who they are intended to protect. For example those advocating close in age exceptions may be held up by their opponents as contradicting the protective nature of the age of consent law.
Ages of consent in various countries
Listed by region
Specific jurisdictions' laws relating to age of consent can be found on the following pages:
- Africa
- Asia
- Oceania
- Europe
- North America
- Central America
- South America
Antarctica – There are no specific age of consent laws in the Antarctic. In the unlikely event of a minor engaging in sexual activity, under the Antarctic Treaty, scientists and support staff stationed there may be subject to the laws of the party of which they are nationals. Other visitors to the continent may need to follow the laws of the country in which their expedition is organized, or the country from which it departs.[10]
See also
- Age disparity in sexual relationships
- British manifestations to lower the age of consent
- Child sexual abuse
- Convention on the Rights of the Child
- Emancipation of minors
- French petitions against age of consent laws
- The Maiden Tribute of Modern Babylon, a Victorian expose of child prostitution
- Minors and abortion
- Sexual Morality and the Law
- Sodomy law
- 1891 Age of Consent Act
References
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Waites, Matthew (2005). The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan. ISBN 1-4039-2173-3. OCLC 238887395 58604878.
- ↑ 2.0 2.1 [1] [2] [3] [4] [5]
- ↑ 3.0 3.1 [6] [7] [8] [9] [10]
- ↑ Niddah, 45b.
- ↑ Larry W. Myers (1965). "Reasonable Mistake of Age: A Needed Defense to Statutory Rape". Michigan Law Review 64 (1): 105–136. [11]. doi:.
- ↑ A table of worldwide ages of consent, including US states
- ↑ [12]
- ↑ [13]
- ↑ "Legal wrap up survey". www.ilga.org (2006-07-20). Retrieved on 2006-10-21.
- ↑ "What is the treaty?". Australian Antarctic Division (2006-03-23). Retrieved on 2006-07-18.
Further reading
Published books on the subject:
- Waites, Matthew (2005) The Age of Consent: Young People, Sexuality and Citizenship, (New York [United States] and Houndmills, Basingstoke [United Kingdom]: Palgrave Macmillan) ISBN 1-4039-2173-3
External links
- Legislation of Interpol member states on sexual offenses against children (Some information may be out of date)
- Worldwide ages of consent
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