Age of consent
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. The person below the minimum age is considered the victim, and their sex partner the offender, although some jurisdictions provide exceptions through "Romeo and Juliet laws" if one or both participants are underage and are close in age.
For other uses, see Age of consent (disambiguation). Not to be confused with Marriageable age.
The term age of consent typically does not appear in legal statutes.[1]: 1–2 Generally, a law will establish the age below which it is illegal to engage in sexual activity with that person. It has sometimes been used with other meanings, such as the age at which a person becomes competent to consent to marriage,[2][3] but consent to sexual activity is the meaning now generally understood. It should not be confused with other laws regarding age minimums including, but not limited to, the age of majority, age of criminal responsibility, voting age, drinking age, and driving age.
Age of consent laws vary widely from jurisdiction to jurisdiction,[1] though most jurisdictions set the age of consent in the range 14 to 18 (with the exceptions of Argentina, Niger and Western Sahara which set the age of consent for 13, Mexico which sets the age of consent between 12 and 18, and 14 Muslim states and the Vatican City that set the consent by marriage only). The laws may also vary by the type of sexual act, the gender of the participants or other considerations, such as involving 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 and penalties resulting from a breach of these laws may range from a misdemeanor, such as corruption of a minor, to what is popularly called statutory rape.
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]
History and social attitudes[edit]
Traditional attitudes[edit]
In traditional societies, 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.[4]
Reliable data for ages at marriage is scarce. In England, for example, the only reliable data in the early modern period comes from property records made after death. Not only were the records relatively rare, but not all bothered to record the participants' ages, and it seems that the more complete the records are, the more likely they are to reveal young marriages. Modern historians have sometimes shown reluctance to accept evidence of young ages of marriage, dismissing it as a 'misreading' by a later copier of the records.[4]
In the 12th century, Gratian, the influential compiler of canon law in medieval Europe, accepted the age of puberty for marriage to be around twelve for girls and around fourteen for boys but acknowledged consent to be meaningful if both children were older than seven years of age.[5] There were authorities that said that such consent for entering marriage 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. Judges sometimes honored marriages based on mutual consent at ages younger than seven: in contrast to established canon, there are recorded marriages of two- and three-year-olds.[4]
In China, Law Code of the Qingyuan Reign (慶元條法事類), published in 1202 which catelogued laws that came into effect from 1127 to 1195, introduced statutory rape in the following decree: 'Successful intercourse with girls younger than 10 is considered rape in all circumstances, punishable by exile 3000 li (miles) away into the uncivilized provinces; if the rape was unsuccessful, exile by 500 li; If injury occurs in process, death by hanging'.[6]
From 1275 in England; as part of its provisions on rape, the Statute of Westminster 1275 made it a misdemeanor to "ravish" a "maiden within age," whether with or without her consent. The phrase "within age" was later interpreted by jurist Sir Edward Coke (England, 17th century) as meaning the age of marriage, which at the time was twelve years of age.[7]
The Great Ming Code, 25th section, Criminal Code on Rape came into effect from 1373, raised the age of consent to 12 by stating 'girls younger than 12 lack rational sexual desires, therefore any intercourse with them is considered the same as rape and therefore punishable by death with hanging'.[8]
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.[9] Sir Edward Coke "made it clear that the marriage of girls under 12 was normal, and the age at which a girl who was a wife was eligible for a dower from her husband's estate was 9 even though her husband be only four years old."[4]
In the 16th century, a small number of Italian and German states set the minimum age for sexual intercourse for girls, setting it at twelve years. Towards the end of the 18th century, other European countries also began to enact similar laws. The first French Constitution of 1791 established the minimum age at eleven years. Portugal, Spain, Denmark and the Swiss cantons initially set the minimum age at ten to twelve years.[7]
Age of consent laws were historically difficult to follow and enforce. Legal norms based on age were not, in general, common until the 19th century, because clear proof of exact age and precise date of birth were often unavailable.[7]
In 18th-century Australia it was thought that children were inherently sinful and vulnerable to sexual temptations. Punishment for "giving in" to these temptations was generally left to parents and was not seen as a government matter, except in the case of rape.[10] Australian children had few rights and were legally considered the chattel of their parents.[10] From the late 18th century, and especially in the 19th century, attitudes started to change. By the mid-19th century there was increased concern over child sexual abuse.[10]
Reforms in the 19th and 20th century[edit]
A general shift in social and legal attitudes toward issues of sex occurred during the modern era. Attitudes on the appropriate age of permission for females to engage in sexual activity drifted toward adulthood. While ages from ten to thirteen years were typically regarded as acceptable ages for sexual consent in Western countries during the mid-19th century,[1] by the end of the 19th century changing attitudes towards sexuality and childhood resulted in the raising of the age of consent.[7]
Other issues[edit]
Gender of participants[edit]
There is debate as to whether the gender of those involved should lead to different treatment of the sexual encounter, in law or in practice. Traditionally, age of consent laws regarding vaginal intercourse were often meant to protect the chastity of unmarried girls.[7] Many feminists and social campaigners in the 1970s have objected to the social importance of virginity, and have also attempted to change the stereotypes of female passivity and male aggression; demanding that the law protect children from exploitation regardless of their gender, rather than dealing with concerns of chastity. This has led to gender-neutral laws in many jurisdictions.[7] On the other hand, there is an opposing view which argues that the act of vaginal intercourse is an "unequal act" for males and females, due to issues such as pregnancy, increased risk of STDs,[49] and risk of physical injury if the girl is too young and not physically ready. In the US, in Michael M. v. Superior Ct.450 U.S. 464 (1981) it was ruled that the double standard of offering more legal protection to girls is valid because "the Equal Protection Clause does not mean that the physiological differences between men and women must be disregarded".[50]
Traditionally, many age of consent laws dealt primarily with men engaging in sexual acts with underage girls and boys (the latter acts often falling under sodomy and buggery laws). This means that in some legal systems, issues of women having sexual contact with underage partners were rarely acknowledged. For example, until 2000, in the UK, before the Sexual Offences (Amendment) Act 2000, there was no statutory age of consent for lesbian sex.[51] In New Zealand, before 2005, there were no age of consent laws dealing with women having sex with underage boys.[52] Previously, in Fiji, male offenders of child sexual abuse could receive up to life imprisonment, whilst female offenders would receive up to seven years.[53] Situations like these have been attributed to societal views on traditional gender roles, and to constructs of male sexuality and female sexuality; according to E Martellozzo, "[V]iewing females as perpetrators of sexual abuse goes against every stereotype that society has of women: women as mothers and caregivers and not as people who abuse and harm".[54] Alissa Nutting argues that women are not acknowledged as perpetrators of sex crimes because society does not accept that women have an autonomous sexuality of their own.[55]
Age-of-consent reform refers to the efforts of some individuals or groups, for different reasons, to alter or abolish age-of-consent laws. These efforts advocate positions such as: