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 to consent 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 voting age, the drinking age, driving age, or other purposes. Generally, it is set at 16 or 18, but age limits exist as low as 12 and as high as 21. In some countries, it is set at onset of puberty instead of a fixed age.[2]

The age of consent varies from jurisdiction to jurisdiction.[1] The relevant age may also vary by the type of sexual act, the gender 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 "gray 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] While there is a lower limit on consent, there is no upper limit.

Contents

History and social attitudes

Historians have considerable difficulties to overcome the cultural views of their own time regarding both the age of consent and the age of marriage.[3]

Traditionally, across the globe, 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]

In Ancient Rome, it was very common for girls to marry and have children shortly after the onset of puberty.

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.[5]

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 7. 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 7, in spite of what Gratian had said; there are recorded marriages of 2 and 3 year olds.[4]

The American colonies followed the English tradition, and the law was more of a guide. For example, Mary Hathaway (Virginia, 1689) was only 9 when she was married to William Williams. Sir Edward Coke (England, 17th century) 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]

Reliable data for when people would actually 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.[4]

A small number of Italian and German states introduced an age of consent in the 16th century, setting it at 12 years. Towards the end of the 18th century, other European countries 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 in 1863. 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.[5] Historically, the English common law set the age of consent to range from 10 to 12.[6]

In the United States, by the 1880s, most states set the age of consent at 10-12, and in one state, Delaware, the age of consent was only 7. A New York Times article states that it was still aged 7 in Delaware in 1895.[7] Female reformers and advocates of social purity initiated a campaign in 1885 to petition legislators to raise the legal age of consent to at least 16, with the ultimate goal to raise the age to 18. The campaign was successful, with almost all states raised the age of consent to 16-18 by 1920.[8][9]

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] the end of the 19th century and the beginning of the 20th century were marked by changing attitudes towards sexuality and childhood resulting in raising the ages of consent to ages generally ranging from 16 to 18.[5]

Law

Age of Consent - Global
     - puberty
     - less than 12
     - 12
     - 13
     - 14
     - 15
     - 16
     - 17
     - 18
     - 19
     - 20
     - 21+
     - varies by state/province/region/territory
     - must be married
     - no law
     - no data available

Sexual relations with a person under the age of consent is a criminal offence. Many different terms exist for the charges laid and include child sexual abuse, statutory rape, illegal carnal knowledge, and corruption of a minor.[1]

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 participant can also influence perceptions of an individual's guilt and therefore enforcement.[1]

"Age"

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.[10]
  • 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 pubescent or post pubescent. Such jurisdictions include Yemen, but only in marriage, and the states of Nayarit and Querétaro in (Mexico) and Bolivia. This was also the case of the Russian Soviet Federal Socialist Republic (RSFSR) during the Bolshevik era before its breakup.[11]
  • Marriageable age— not all countries have an age of consent, but a number of those jurisdictions (including Kuwait[12]) make all sexual intercourse outside of marriage illegal.

Defenses and exceptions

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[10]), it is a defence if the accused can show that he or she 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 claiming they were 16 or older).[13]
  • Marriage— in some jurisdictions, including Brunei[14] and India,[15] it is an exception to age of consent laws if the accused can show that he or she is legally married to the other person.
  • 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) allow for close in age exemptions.[16]. In Canada the unfettered age of consent is 16, but there are two close-in-age exemptions: minors 14-15 may have sex with a partner who is five years older, and minors aged 12-13 may have sex with a partner who is less than two years older. Some states in the United States also allow these exceptions, sometimes called Romeo and Juliet laws, although not all states do, for example, in Delaware, the unfettered age of sexual consent is 18, but minors 16-17 are allowed to have sex with each other and with adults below the age of 30.[17].

These different defences can change dramatically from jurisdiction to jurisdiction, even between neighboring states of the same union with the same age of consent.

Discrepancies and inconsistencies

The age of consent is not always consistent, even within the same jurisdiction. In many countries, there are numerous discrepancies. Common examples include

  • Homosexual and heterosexual age discrepancies – some jurisdictions, such as The Bahamas, Bermuda, Chile, Greece, Paraguay and Suriname –have a higher age of consent for homosexual intercourse. In the United Kingdom for example the age of consent was originally 21 for homosexual behavior, while it was 16 for heterosexual behavior [18] However, such discrepancies are increasingly being challenged. In both Canada and the Australian state of Queensland, the age of consent for anal sex is officially higher at 18 years, compared with 16 years for vaginal and oral sex.[19][20] In the Canadian provinces of Ontario and Quebec, this discrepancy has been declared unconstitutional by courts.[21][22]
  • Gender-age differentials – in some jurisdictions (such as Indonesia[23]), there are different ages of consent for heterosexual sexual activity that are based on the gender of each person. In countries, where there are gender-age differentials, usually, the ages for males are higher than the ages for females. For example, in Indonesia, males must be 19 years old and females must be 16 years old.[23] There are also numerous jurisdictions—such as Kuwait[12] and Palestine[24])--in which marriage laws govern the gender-age differential. 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 boys must be at least 17 and girls at least 15 years old.
  • Position of authority/trust – in some parts of the world (such as England and Wales[25]), in cases where a person is in a position of trust over a child or young person, the age of consent is higher, in England and Wales it is 16 unless the person is a student of the older person in which case it is 18. Examples include relationships between teachers and students.

Extraterritoriality

Increasingly the age of consent laws of a state are applied not only to acts committed in the state's own territory, but also to those committed by the state's citizens or inhabitants while they are on foreign soil.[1] An example is the United States, which has passed a Federal age of consent law banning sexual activity by US citizens with foreigners, or with other US citizens who are from another one of the States, if any of the partners is under 18. This applies in cases where any of the partners travels into or out of the United States, or from one State into another one, for the purpose of a sexual encounter.[26] The United States also applies this law in cases where the age of consent is lower than the age of both partners in both the states or countries involved, and does not allow exceptions for cases in which the partners are legally married, other regulations notwithstanding.[26]

Statutory rape

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.

Other concerns

Marriage

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 usually override the age of consent laws in the case of a married couple where one or both partners are below the age of consent. Further still, some jurisdictions prohibit any sex outside of marriage, which can take place at any age, as in the case of Yemen.

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 in applicable jurisdictions can be classified as child pornography, even though the legal age of consent in those same jurisdictions is lower than 18. For example in the United States under federal law it is a crime to film minors below 18 in sexual acts, even in states where the age of sexual consent is below 18. [26]

Prostitution

In many countries there are specific laws against child prostitution.

Initiatives to change the age of consent

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 five main positions:

  • Introductions of close-in-age exceptions.
  • A change in the way that age-of-consent laws are examined in court.
  • Either increases in the ages of consent or more severe penalties or both.
  • Either decreases in the ages of consent or less severe penalties or both.
  • Abolition of the age-of-consent laws either permanently or as a temporary, practical expedient.

By country or region

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 an adult engaging in sexual activity with a minor, 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.[27]

See also

References

Notes
  1. ^ a b c d e f g Waites, Matthew (2005). The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan. ISBN 1-4039-2173-3. OCLC 58604878 238887395 58604878. 
  2. ^ http://www.avert.org/age-of-consent.htm
  3. ^ Lelis, Arnold; Percy, William A.; Verstraete, Beert C. (2003). "The Age of Marriage in Ancient Rome". Studies in Classics. Mellen Press. http://www.mellenpress.com/mellenpress.cfm?bookid=5718&pc=9. Retrieved 2011-08-09.  Vern Bullough is quoted here: "Examining the secondary literature dealing with age of consent (including the age of marriage) is a fascinating illustration of the inability of historians to overcome the cultural beliefs of their own time."
  4. ^ a b c 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. 
  5. ^ http://www.slate.com/articles/health_and_science/human_nature/2007/09/the_mindbooty_problem.html
  6. ^ The New York Times. October 15, 1895 - http://query.nytimes.com/gst/abstract.html?res=9B01EEDC113AE533A25756C1A9669D94649ED7CF&scp=1&sq=%22age+of+consent%22+delaware&st=p
  7. ^ 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. 
  8. ^ "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. 
  9. ^ a b "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. 
  10. ^ http://www.cyberussr.com/rus/uk136-e.html
  11. ^ a b "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. 
  12. ^ 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. – <105:RMOAAN>2.0.CO;2–D . doi:10.2307/1287118. JSTOR 1287118. 
  13. ^ "Legislation of Interpol member states on sexual offences against children - Brunei". Interpol. 2006. http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/CsaBrunei.pdf. 
  14. ^ "Indian Penal Code". http://www.vakilno1.com/bareacts/IndianPenalCode/S375.htm. 
  15. ^ "Canada's age of consent raised by 2 years". CBC News. 2008-05-01. http://www.cbc.ca/canada/story/2008/05/01/crime-bill.html. Retrieved 2009-03-22. 
  16. ^ http://www.age-of-consent.info/states/Delaware
  17. ^ The Causes and Cures of Criminality Eysenck, Hans 1989 Plenum Press New York page 229
  18. ^ "159. ANAL INTERCOURSE". Efc.ca. http://www.efc.ca/pages/law/cc/cc.159.html. Retrieved 2010-03-22. 
  19. ^ "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. 
  20. ^ "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. 
  21. ^ "Egale Canada > The State of the Play". Egale.ca. http://www.egale.ca/index.asp?item=468. Retrieved 2010-03-22. 
  22. ^ a b "Sexual Offences Laws - Indonesia". Interpol. http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/csaIndonesia.asp. Retrieved 2009-09-05. 
  23. ^ "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. 
  24. ^ "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. 
  25. ^ a b c "Research on sex offender laws and their effects on people and society". SOL Research.org. 2009. http://www.solresearch.org/~SOLR/rprt/USnatlAoC.asp. Retrieved 2011-10-23. 
  26. ^ "What is the treaty?". Australian Antarctic Division. 2006-03-23. http://www.aad.gov.au/default.asp?casid=78. Retrieved 2006-07-18. 
Further reading

External links



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Look at other dictionaries:

  • age of consent — age of consent: the age at which a person is deemed competent by law to give consent esp. to sexual intercourse or marriage see also statutory rape compare emancipation, legal age Merriam Webster’s Dictionary of Law. Merriam Webster …   Law dictionary

  • Age of consent — Consent Con*sent , n. [Cf. OF. consent.] 1. Agreement in opinion or sentiment; the being of one mind; accord. [1913 Webster] All with one consent began to make excuse. Luke xiv. 18. [1913 Webster] They fell together all, as by consent. Shak.… …   The Collaborative International Dictionary of English

  • age of consent — n. Law 1. the age at which a person may marry without parental approval 2. the age at which a person is considered legally competent to consent to sexual intercourse …   English World dictionary

  • age of consent — age′ of consent′ n. law Law. the age at which a person is considered competent to consent to marriage or sexual intercourse • Etymology: 1800–10 …   From formal English to slang

  • age of consent — ► NOUN ▪ the age at which a person s consent to sexual intercourse is legally valid …   English terms dictionary

  • age of consent — age of con sent n the age of consent the age when someone can legally get married or have a sexual relationship …   Dictionary of contemporary English

  • age of consent —    The age of consent has been discussed from Plato, through Locke and into contemporary public policy. It covers a variety of different situations, from smoking, taking alcohol and watching X rated movies to legal permission to engage in various …   Encyclopedia of contemporary British culture

  • age of consent — noun the minimum age for marrying without parental consent or the minimum age for consensual sexual relations; intercourse at an earlier age can result in a charge of assault or statutory rape; the age differs in different states of the Union •… …   Useful english dictionary

  • age of consent — N SING: the N The age of consent is the age at which a person can legally agree to having a sexual relationship. He was under the age of consent …   English dictionary

  • age of consent — age of con·sent kən sent n the age at which one is legally competent to give consent esp. to marriage or to sexual intercourse …   Medical dictionary

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