Inequality of Laws on Sex and Statutory Rape (in Europe)

Over the last few days I have had interesting discussions with a friends about sex, the legal age of consent and statutory rape (ie. sex with someone considered ‘under age’) the implications, how it applies and how others might be affected by it.  I thought I would pose the questions, both answered and unanswered to you the reader.  If you wish to comment please do, if you do comment, please do not use any names or identifying details of the people concerned.

What follows are some scenarios, some real, some fictitious (and I’m not going to reveal which are which)…  Some refer to situations I have been in, some not, if you know me extremely well you will may possibly guess who and when, but otherwise you’d have to be one of the people concerned to know.  Others I mention are public as they have been in local and national newspapers, sometimes causing public outcry.  In all cases I will not reveal names, and I will delete/unapprove any comments that indicate who is involved (so please don’t do it if you comment, think before you write.)

First though the laws… according to Wikipedia in the UK, the age of consent is 16 (18 if one of the people are persons in a position of power (Person in a position of power are people like: Mum, Dad, Gardian, BabySitter, Doctor, Teacher, Priest, etc)  In Sweden it’s 15, in Malta its 18 etc… Now in most countries the age limit is physical age, not mental age, and that would be because of the difficulties of defining mental age.  In a couple of countries (eg Malta) there is an additional caveat in that a person that who has engaged in multiple consensual sexual relations in the past cannot be considered a minor even if their physical age is lower than that specified in law…. some countries have differing laws for homosexual vs hetrosexual relationships as well, I’m not going to get into that mine field, except to refer to both as if they are the same… that in mind consider the following:

Note: In each of the ‘non public’ examples I will refer to me as one person regardless of whether it was or not as there are at least 2 cases were the ‘other person’ was someone of around my age.  This of course ensures they are ficticious, but give real world issues.  It also means it’s harder to tell which ones have me involved and which ones do not. 😉

First some public cases…

Two Maltese residents/citizens of ‘minor’ age (both 14 or 15 if I remember correctly) the male was prosecuted for rape, the female wasn’t.  On the other hand in Britain, 2 persons (one male, one female) of ‘minor’ age engaged in sex, both were arrested and prosecuted for statutory rape.  Outside of Europe but something directly related, a 20+ female school teacher in Australia was jailed for engaging in sex with a 14 year old student.  Now the discussion on that is “why?” well in the latter (Australian) case it’s simple, a position of power, large age difference etc, laws were applied correctly and justly, but looking at the other two cases.  First the British one… how can two people (both minors themselves) be prosecuted for non consensual sex (statutory rape) with each other?  To ‘Rape’ someone one person is a victim, one is the instigator, how can both be the victims or worse (logically) both be the instigators?  Second, the Maltese case, there have been several such cases, some better argued by lawyers and some not, and that affects the outcome.  Some cases the lawyers have argued that the female has been sexually promiscuous in the past and therefore the law does not apply, this has affected the outcome and resulted in a ‘not guilty’ verdict.  The question here is ‘should it’, and ‘how is it proved’?

Now some non public stuff, both fictitious and real…

The law in Spain has the legal age of consent at 13 (unless deceit is used – which increases it to 16) the legal age for marriage as of November 2000 was set to 13 also.  So consider this, if 2 people from Spain are married and engage in a normal sexual (and marital) relationship and go to the United Kingdom for a holiday where the law states to be married or have sex they have to be over the age of 16… what happens?  Do they both get arrested and prosecuted for Rape, do they become ‘unmarried’ for the duration of their visit?  What happens if instead of a visit they move there to live permanently?  (On that last thought, if one of the couples’ parents moves to the UK permanently, and the son/daughter moves as a child of the parents… can the spouse gain a spouse Visa and move with his/her wife/husband?)

Now something to consider with me…(fictitious or not?  You decide!)

I was recently engaged in conversations with others about a relationship with me and others (none of which I have engaged in I might add).. I am 42 currently and a pre-op transsexual and all my documentation indicates ‘female’…  All ‘prospective’ partners turn out to be under the age of 18, however they professed to being/appeared to be 23+ when the question of a relationship came up.  Had I engaged in a relationship with any of them I could have been in a very serious and very dangerous place.  Being Australian (even with being a Maltese resident) the laws of Australia apply to me, so as per another case a few years back, I could have been arrested, prosecuted and jailed for engaging in a relationship with either of them (regardless of not knowing their real ages…) but forgetting the Australian laws (as this is an European issue) what would happen here in Malta.

The two girls are 17 year old Maltese residents/citizens, the next is 17 year old Swedish girl and on a long (6 month) holiday, another is a 17 year old British girl…  So lets look at them individually with my thoughts..

First being 42 and being more than double their ages, any consideration of ‘age difference’ are mute.

Now.. Maltese girls, 17, sexually active but legally considered a minor (18 for the age of consent.)  It would have been consensual (she chased me for a relationship), but is it legal?  How does one show that its consensual, how does one show ‘prior sexually active’ if it came to the ‘crunch’?  Well with one that would have been easy, a 17 year old mother already, so that definitively shows prior sexual activity, but what about the others, past boyfriend or past girlfriend? (that doesn’t show sexual activity, only that the person had a relationship..)  Next a Swedish girl, legal age of consent is 15, as a non-resident/holiday maker do the same laws apply, as I am resident and she not, does that make a difference?  If I visit her at home in Sweden, it is legal (Swedish law, I’m Australian so that starts other issues.) Similar issues go with the British girl, except the legal age of consent in the UK is 16 unless you’re in a position of power..  So what would happen if she approached me as a student of IT (at school/university/college) and asked for help, would I be in a position of power if I did help (I am not a teacher by profession.)

Now for some other issues that cannot be applied to me…

How about a if a 16 year old Spanish girl and a 16 year old British boy met on holiday here and engaged in sexual intercourse…?  Would either/both be arrested?

The conclusion and my thoughts (or more of a whole load of questions to be answered)…

The laws across Europe are totally inconsistent, and within the Schengen area there are even more issues in that it is conceivable that two people could engage in sexual activity and either or both be totally legal in their actions and then just walking 10 paces it could be illegal for either or both and have jail time as a possible result.  How are the laws applied?  How can they be applied in such cases?  Should age difference count in the legal system?  If a 16 year old in the UK engages in sexual activity with a 15 year old (two people in the same class at school for example) should one be guilty of statutory rape?  (if not how would one apply the law as there is a need for a clear age ‘limit’ and variations will result in more expense and confusion in the legal system.)  It is indicated in the Maltese definition of consent that majority (if not all) prosecution are based on complaint of the parents and often a same sex relationship is objectionable were as a differing sex relationship is not and therefore rarely prosecuted.  Should psychiatric evaluation of both parties be taken into account?  I know many 20+ year olds (both male and female) with an apparent (and in some cases a real) mental age of a 12-14 year old and I also know plenty of under 16’s that have an apparent mental age (and looks) of a 20+ year old. Does/Should country of residence have an influencing factor on prosecution?

If you do decide to comment, please prefix your comment with your profession if you are a lawyer or policeman/policewoman and your country.  As mentioned before please do not provide identify details of any one involved unless the case is public record (ie quote legal precedence or newspaper publications.)