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|Sex and the law|
(May vary according to jurisdiction)
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts, and is thus the minimum age of a person with whom another person is legally permitted to engage in sexual activity. The distinguishing aspect of the age of consent laws is that the person below the minimum age is regarded as the victim, and their sex partner as the offender.
The term age of consent rarely actually appears in legal statutes; it has sometimes been used with other meanings, such as the age at which a person becomes competent to consent to marriage, but the meaning given above is the one now generally understood. It should not be confused with the age of majority, age of criminal responsibility, the voting age, the drinking age, driving age, etc.
Age of consent laws vary widely from jurisdiction to jurisdiction, though most jurisdictions set the age of consent in the range 14 to 18. The laws 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 misdemeanor such as corruption of a minor, to what is popularly called 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.
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.
Ancient Greek poet Hesiod in "Works and Days" (c. 700BC) suggests that a man should marry around the age of thirty, and that he should take a wife who is five years past puberty.
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 involving 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.
The first recorded age-of-consent law dates to 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 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.
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."
In the 16th century, a small number of Italian and German states set the minimum age for sexual intercourse for girls, setting it at 12 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 11 years. Portugal, Spain, Denmark and the Swiss cantons, initially set the minimum age at 10–12 years.
A general great shift in social and legal attitudes toward issues of sex took place in the modern era and beliefs on the appropriate age below which girls should not be permitted to engage in sexual activity drifted toward adulthood. While ages from 10 to 13 were typically regarded as acceptable ages for sexual consent in Western countries during the mid-19th century, by the end of the 19th century changing attitudes towards sexuality and childhood resulted in the raising of the age of consent to around 16.
The English common law had traditionally set the age of consent within the range of 10 to 12, but in 1875 the age was raised to 13. After intense sensational media revelations about the scourge of under-age prostitution in London in the 1880s caused respectable middle-class outrage, the age of consent was raised to 16 in 1885. Early feminists of the Social Purity movement such as Josephine Butler and others, instrumental in securing the repeal of the Contagious Diseases Acts, began to turn towards the problem of child prostitution by the end of the 1870s.
The investigative journalist William Thomas Stead of the Pall Mall Gazette was pivotal in exposing the problem of child prostitution in the London underworld through a publicity stunt. In 1885 he "purchased" one victim, Eliza Armstrong the 13-year-old daughter of a chimney sweep, for £5 and took her to a brothel where she was drugged. He then published a series of four exposés entitled The Maiden Tribute of Modern Babylon, which shocked its readers with tales of child prostitution and the abduction, procurement and sale of young English virgins to Continental "pleasure palaces". The "Maiden Tribute" was an instant hit with the public. Victorian society was thrown into an uproar about prostitution. Fearing riots on a national scale, the Home Secretary, Sir William Harcourt pleaded in vain with Stead to cease publication of the articles. A wide variety of reform groups held protest meetings and marched together to Hyde Park demanding that the age of consent be raised. The government was forced to pass the Criminal Law Amendment Act 1885 that raised the age of consent to 16 and clamped down on prostitution.
In the United States, as late as the 1880s most States set the minimum age at 10–12, (in Delaware it was 7 in 1895). Inspired by the "Maiden Tribute" female reformers in the US initiated their own campaign which petitioned legislators to raise the legal minimum age to at least 16, with the ultimate goal to raise the age to 18. The campaign was successful, with almost all states raising the minimum age to 16–18 years by 1920.
In France, Portugal, Spain, Denmark and the Swiss cantons and other countries, the minimum age was raised to between 13 and 16 years in the following decades. Though the original arguments for raising the age of consent was based on morality, since then the raison d'être of the laws has changed to child welfare and a so-called right to childhood or innocence.
In the 21st century, several Western countries have raised their ages of consent recently. These include Canada (in 2008 - from 14 to 16); and in Europe, Iceland (in 2007 - from 14 to 15), Lithuania (in 2010 - from 14 to 16), and Croatia (in 2013 - from 14 to 15).
The 21st century also saw concerns about child sex tourism and commercial sexual exploitation of children, which have led in recent years to several international instruments regarding child sexual abuse, such as the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote, 25 October 2007), and the European Union's Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography.
Sexual relations with a person under the age of consent is a crime in most countries. Jurisdictions use a variety of terms for the offence, including child sexual abuse, statutory rape, illegal carnal knowledge, corruption of a minor, besides others.
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.
The threshold age for engaging in sexual activity varies between jurisdictions (see below). Most jurisdictions have set a fixed age of consent. However, some jurisdictions permit sex with a person after their puberty, including the Bolivia and the state of Nayarit (in Mexico) (and Yemen, but only in marriage).
The age of consent is a legal barrier to the minor's ability to consent and therefore obtaining consent is not in general a defense to having sexual relations with a person under the prescribed age, for example:
Some countries have age of consent laws which apply not only to acts committed within the country, but also to those committed by its citizens or inhabitants while they are on foreign soil. For example, a federal United States law bans sexual activity by its citizens with foreigners or with a US citizens from another state, 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, for the purpose of a sexual encounter. 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.
The age at which a person can be legally married can 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. Some jurisdictions prohibit all sex outside of marriage irrespective of age, as in the case of Yemen.
In some countries, the age of consent may be lower than the age at which a person can appear in pornographic images and films. In many jurisdictions, the minimum age for participation and even viewing such material is 18. Films and images showing individuals under the age of 18 in some jurisdictions may be classified as child pornography, even though the legal age of consent in those jurisdictions is lower. 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 consent is below 18. In those states of the United States where the age of consent is lower, charges such as child pornography can be used as alternatives.
Jailbait images can be differentiated from child pornography, as they do not feature minors before the onset of puberty, nor do they contain nudity. The images are, however, usually sexualized, often featuring tween or young teen girls in bikinis, skirts, underwear or lingerie. Whether or not these images are legal is debated. When questioned regarding their legality legal analyst Jeffrey Toobin stated he thought it was not illegal, though legal expert Sunny Hostin was more sceptical, describing jailbait images as "borderline" child porn which may be illegal.
In many countries, there are specific laws dealing with child prostitution.
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:
Specific jurisdictions' laws relating to age of consent can be found, organized by region, on the following pages: