|Sex and the law|
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|Sexuality · Criminal justice · Law|
While the phrase age of consent typically does not appear in legal statutes, 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. The European Union calls it the legal age for sexual activities. It should not be confused with the age of majority, age of criminal responsibility, the marriageable age, the age at which one can purchase and consume alcoholic beverages, or drive a car, or other purposes.
The age of consent varies from jurisdiction to jurisdiction. 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). Many jurisdictions regard any sexual activity by an adult involving a child as child sexual abuse.
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.
Traditionally the age of consent for a sexual union was a matter for the family to decide, or a tribal custom. In most cases this coincided with signs of puberty, menstruation for a woman and pubic hair for a man.
The first recorded age-of-consent law dates back 800 years: In 1275, in England, as part of the rape law, a statute, Westminster 1, made it a misdemeanor to "ravish" a "maiden within age," whether with or without her consent. The phrase "within age" was interpreted by jurist Sir Edward Coke as meaning the age of marriage, which at the time was 12 years of age.
In the 12th century Gratian, the influential founder of Canon law in medieval Europe, accepted age of puberty for marriage to be between 12 and 14 but acknowledged consent to be meaningful if the children were older than seven. There were authorities that said that consent could take place earlier. Marriage would then be valid as long as neither of the two parties annulled the marital agreement before reaching puberty, or if they had already consummated the marriage. It should be noted that Judges honored marriages based on mutual consent at ages younger than seven, in spite of what Gratian had said; there are recorded marriages of two and three year olds.
The American colonies followed the English tradition, and the law was more of a guide. For example, Mary Hathaway (Virginia, 1689) was only nine when she was married to William Williams. Sir Edward Coke (England, 17th century) made it clear that "the marriage of girls under twelve was normal, and the age at which a girl who was a wife was eligible for a dower from her husband's estate was nine even though her husband be only four years old."
Reliable data for when people used to marry is very difficult to find. In England for example, the only reliable data on age at marriage in the early modern period comes from records which involved only those who left property after their death. Not only were the records relatively rare, but not all bothered to record the participants' ages, and it seemed that the more complete the records are, the more likely they are to reveal young marriages. Additionally, 20th and 21st centuries' historians have sometimes shown reluctance to accept data regarding young ages of marriage, and would instead explain the data away as a misreading by a later copier of the records.
A small group of Italian and German states which introduced an age of consent in the 16th century also set it at 12 years. Towards the end of the 18th century, other European nations also began to enact age of consent laws. The French Napoleonic Code established an age of consent of 11 years in 1791, which was raised to 13 years in 1863. Nations such as Portugal, Spain, Denmark and the Swiss cantons, initially set the age of consent at 10–12 years and then raised it to between 13 and 16 years in the second half of the 19th century.
In the United States, by the 1880s, most states set the age of consent at ten or twelve, and in one state, Delaware, the age of consent was only seven. Women reformers and advocates of social purity initiated a campaign in 1885 to petition legislators to raise the legal age of consent to at least sixteen, with ultimate goal to raise the age to eighteen; the campaign was successful: by 1920, almost all states had raised the age of consent to sixteen or eighteen.
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, the end of the 19th century and the beginning of the 20th century were marked by changing attitudes towards sexuality, childhood and adolescence, resulting in raising the ages of consent.
Sexual relations with a person under the age of consent can be a criminal offence with punishments ranging from community service to the death penalty. Many different terms exist for the charges laid and include child sexual abuse, statutory rape, illegal carnal knowledge, and corruption of a minor.
The enforcement practices of age-of-consent laws 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 power over the minor (e.g., a teacher, minister, or doctor). The sex of each actor can also influence perceptions of an individual's guilt and therefore enforcement.
The concept of what actually makes up an age of consent differs between jurisdictions. Common examples include:
- Fixed age of consent— in most jurisdictions the age of consent is actually a specified fixed age, such as in the UK where it is 16.
- Onset of puberty as the age of consent— in some jurisdictions there is no fixed age of consent. Instead, sex is allowed with people who are sexually mature. In females it usually means passing menarche. Such jurisdictions include Yemen, but only in marriage, the states of Nayarit and Querétaro in (Mexico and Bolivia
- Marriageable age— not all countries have an age of consent, but a number of those jurisdictions (including Kuwait) make all sexual intercourse outside of marriage illegal.
Defences and exceptionsEdit
The age of consent is a legal barrier to the minor ability to consent and therefore obtaining consent is not in general a defence to having sexual relations with a person under the prescribed age. Common examples:
- Reasonably believing that the victim is over the age of consent—in some jurisdictions, (such as England and Wales), it is a defence if the accused can show that he reasonably believed the victim was over the age of consent. However, where such a defence 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 15-year-old who used a fake identification document to enter a bar for persons 18 and older).
- Marriage— in jurisdictions, including Brunei and India, it is an exception to age of consent laws if the accused can show that s/he is legally married to the other person.
- Rape—where someone under the age of consent detains and rapes someone over the age of consent.
- Close-in-age—while most legislation dealing with age of consent sets a single age under which sexual relations are illegal, some jurisdictions (such as Canada), have adopted close-in-age exemptions. In Canada the age of consent is 16, but there are two close-in-age exemptions: teenagers who are 14 or 15 may have sex with a partner who is less than five years older, and children aged 12 and 13 may have sex with a partner who is less than two years older. In the United States, these exceptions are colloquially known as "Romeo and Juliet" laws.
These different defences can change dramatically from jurisdiction to jurisdiction, even between neighbouring states of the same union with the same age of consent.
Discrepancies and inconsistenciesEdit
The age of consent is not always constant even within the same jurisdiction, in many countries there are a number of discrepancies. Common examples include:
- Homosexual and heterosexual age discrepancies – some jurisdictions, such as The Bahamas, Bermuda, Chile, Gibraltar, Greece, Paraguay and Suriname, have a higher age of consent for homosexual intercourse. However, such disparities are increasingly being challenged. In Canada, and the Australian state of Queensland, the age of consent for anal sex is officially higher at 18, compared with 16 for vaginal and oral sex. In Ontario and Quebec provinces in Canada, this difference is declared unconstitutional by courts.
- Gender age discrepancies – in some jurisdictions (such as Indonesia), there are different ages of consent for heterosexual sexual activity based on the gender of each person. In countries where there is a gender different for heterosexual activity usually females are lower than male for example in Indonesia males have to be of 19 years old and females 16 years old. There are also a number of jurisdictions which have this gender different generated due to the laws governing marriage (such as Kuwait and Palestine); in these jurisdictions it is illegal to have sexual intercourse outside of marriage so the de facto age of consent is the marriageable age. In Kuwait this means that girls have to be at least 15 years old and boys 17 years old.
- Position of authority/trust – in some parts of the world (such as England and Wales), in cases where a person is in a position of trust over a child or young person the age of consent is set higher. Examples include a teacher and student.
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. Such provisions have been frequently adopted to help reduce the incidence of child sex tourism.[original research?]
Where a jurisdiction's age of consent laws for sexual activity treat those convicted of those laws with the same severity as they do with 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.
The age at which a person can be legally married can also differ from the age of consent. In jurisdictions where the marriageable age is lower than the age of consent, those laws override the age of consent laws, at least as they apply to the spouse. Further still, some jurisdictions prohibit any sex outside of marriage, which can take place at any age, as in the case of Yemen.
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.
While the legality of adult prostitution varies among different parts of the world, the prostitution of minors is illegal in all countries. Furthermore, some countries (for example, Canada) enforce worldwide jurisdiction over any involvement in child prostitution by their nationals.
Initiatives to change the age of consentEdit
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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 exceptions.
- 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.
Ages of consent in various countriesEdit
Specific jurisdictions' laws relating to age of consent can be found, organized by region, on the following pages:
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 country 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.
- Age of consent in Brazil
- 1891 Age of Consent Act
- Age disparity in sexual relationships
- Age of accountability
- Age of reason (canon law)
- Age of consent manifestations (UK)
- 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
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 Waites, Matthew (2005). The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan. ISBN 1-4039-2173-3. OCLC 58604878 238887395 58604878.
- ↑ 2.0 2.1 2.2 2.3 "Encyclopedia of Children and Childhood in History and Society". http://www.faqs.org/childhood/A-Ar/Age-of-Consent.html.
- ↑ 3.0 3.1 3.2 Stephen Robertson, University of Sydney, Australia. "Children and Youth in History | Age of Consent Laws". Chnm.gmu.edu. http://chnm.gmu.edu/cyh/teaching-modules/230. Retrieved 2010-06-30.
- ↑ Stephen Robertson, University of Sydney, Australia (2007-11-29). "Children and Youth in History | Age of Consent Laws". Chnm.gmu.edu. http://chnm.gmu.edu/cyh/teaching-modules/230?section=primarysources&source=24. Retrieved 2010-06-30.
- ↑ "Campaign to Raise the Legal Age of Consent, 1885-1914, Lesson Plan". Womhist.alexanderstreet.com. http://womhist.alexanderstreet.com/teacher/aoc.htm. Retrieved 2010-06-30.
- ↑ 6.0 6.1 "Sexual Offences Act 2003 (See Sections 9 to 12)" (PDF). Published by the Government of the United Kingdom, (Office of Public Sector Information). http://www.opsi.gov.uk/acts/acts2003/pdf/ukpga_20030042_en.pdf.
- ↑ 7.0 7.1 "Summary record of the 488th meeting : Kuwait". Committee on the Rights of the Child. http://www.unhchr.ch/tbs/doc.nsf/0/2f5665ae20b956cb8025675a0033cafb?Opendocument. Retrieved 2009-09-05.
- ↑ Larry W. Myers (1965). "Reasonable Mistake of Age: A Needed Defence to Statutory Rape". Michigan Law Review (The Michigan Law Review Association) 64 (1): 105–136. - . doi:10.2307/1287118. http://jstor.org/stable/1287118.
- ↑ "Legislation of Interpol member states on sexual offences against children - Brunei". Interpol. 2006. http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/CsaBrunei.pdf.
- ↑ "Indian Penal Code". http://www.vakilno1.com/bareacts/IndianPenalCode/S375.htm.
- ↑ "Canada's age of consent raised by 2 years". CBC News. 2008-05-01. Archived from the original on 2008-05-02. http://web.archive.org/web/20080502083604/http://www.cbc.ca/canada/story/2008/05/01/crime-bill.html. Retrieved 2009-03-22.
- ↑ "159. ANAL INTERCOURSE". Efc.ca. http://www.efc.ca/pages/law/cc/cc.159.html. Retrieved 2010-03-22.
- ↑ "CRIMINAL CODE 1899 - SECT 208 208 Unlawful sodomy". Austlii.edu.au. http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s208.html. Retrieved 2010-03-22.
- ↑ "Mixed reviews to Tories' sexual consent bill - CTV News". Ctv.ca. http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060622/age_consent_060622/20060623/. Retrieved 2010-03-22.
- ↑ "Egale Canada > The State of the Play". Egale.ca. http://www.egale.ca/index.asp?item=468. Retrieved 2010-03-22.
- ↑ 16.0 16.1 "Sexual Offences Laws - Indonesia". Interpol. http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/csaIndonesia.asp. Retrieved 2009-09-05.
- ↑ "Palestinian Territories of West Bank and Gaza Strip - Marriage Age". Emory Law. http://www.law.emory.edu/ifl/legal/palestine.htm. Retrieved 2009-09-05.
- ↑ "Sexual Offences Act 2003 (See Sections 16 to 24)" (PDF). Published by the Government of the United Kingdom, (Office of Public Sector Information). http://www.opsi.gov.uk/acts/acts2003/pdf/ukpga_20030042_en.pdf.
- ↑ "What is the treaty?". Australian Antarctic Division. 2006-03-23. http://www.aad.gov.au/default.asp?casid=78. Retrieved 2006-07-18.
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
- Legislation of Interpol member states on sexual offenses against children (Some information may be out of date)
- Links to the relevant state laws for all 50 States and Washington DC
- Avert.org list
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