The exploitation of children is a real and present problem, one that has only worsened. Children are roped into forced labour; they are trafficked for sex; they are coerced into the production of child sexual abuse material, and the list of crimes goes on.
Fortunately, Malta has many laws in place designed to protect children across these areas of concern, but one extremely complicated example is that of the age of consent.
Not long ago, a legal issue arose when a 15-year-old boy and his 14-year-old girlfriend faced court after she gave birth. Although they were cleared, Magistrate Abigail Critien suggested either lowering the age of consent or decriminalising consensual sex between close-in-age minors.
There are many different factors to consider here. One is the age of consent, the age at which an individual can legally consent to sexual intercourse under any circumstances. Another is the minimum age of the victim, which refers to the age below which an individual cannot legally consent to sexual intercourse under any circumstances.
Also to be taken into consideration is the age differential, when the sexual relationship began and the ages of the two parties at that time.
Generally speaking, minors younger than the age of consent in Malta cannot legally consent to sexual acts. This means, for example, that a 20-year-old man who has sex with a 13-year-old girl could be charged with rape, even if the 13-year-old wanted to have sex with him. But what happens if two 13-year-olds have sex? Or a 15-year-old and a 17-year-old?
Ironically, the same 15-year-old and 17-year-old who can have consensual sex with each other could be criminally prosecuted in Malta if they exchange nude photos of themselves. Child pornography is generally any sexual image of a person under 18, and because there is currently no exemption for young people who are close in age to one another, possible charges could include disseminating, viewing, or possessing child pornography, all of which are criminal offences and require registration as a sex offender.
Can it be that it is time to revisit our criminal code to prevent serious criminal charges if sexual contact occurs between young people who are close in age?
The debate, like our concept of "childhood", has evolved over the centuries with changing social mores. The debate over the age of consent and statutory rape is characterised by many viewpoints, but two primary ones are the desire to protect children from harm, on one hand, and also to allow young people, particularly women, to exercise their own sexual expression, freedom and autonomy without being subject to legal worries under the guise of moral policing.
Today, the age of consent across the world varies from 13 to 18. Having age of consent laws in place ostensibly protects children from being married off, in some cases to their rapists or to predators who groomed them.
A remaining grey area within this critical legal and juridical issue is the distinction between adults preying on vulnerable minors and adolescents, a handful of years apart in age, engaging in sex.
Many are today arguing that low-risk adolescents should be allowed to engage and experiment with sex without fear of facing a steep imprisonment sentence, fine or entry into the sex offenders' register. Engaging in sex should not condemn a teenager to a lifetime of unintended consequences and punishment.
Cases such as the above are often called "Romeo and Juliet" cases, with the term tracing its roots back to the eponymous play by William Shakespeare, in which Romeo was believed to be around 16 years old and Juliet 13. In modern times, as they consummated their secret marriage, Romeo could, under current Maltese legislation, be labelled a sex offender.
To date, there is more than one country where such Romeo and Juliet cases are no longer criminalised. Examples that spring to mind are several US states, France, Spain, Finland and Hungary.
In most cases, these sorts of "Romeo and Juliet" laws state that individuals with a typical age difference between two and four years are not considered offenders or predators if they engage in sexual activity. Some states may also require there to be proof of a dating relationship along with those age differences.
The problem is that these laws are not applied uniformly. Whether a person in such a circumstance is charged depends on the prevailing mood in the community, the police, the parties involved, the prosecutor, and, often, on how angry the parents of the younger party are.
Still, it is rare for those caught in a "Romeo and Juliet" situation to be violent offenders, if they can be called offenders at all in some cases. As such, the argument should be whether they are to be penalised with a lifelong spot in the sex offenders' register.
With adult predators, there is always the real risk of re-offending, which is why things like the sex offender register exist in the first place. But, with adolescents in relationships, this may not necessarily be the case. It just might be a situation of two teenagers in love. The majority are no threat to anyone, yet they are treated the same as a child molester or a rapist.
At the end of the day, the primary purpose of the Romeo and Juliet law is to acknowledge the emotional and physical development that adolescents experience during their teenage years.
Dr. Mark Said