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Spanish Government will raise the age of sexual consent from thirteen to sixteen. This change -it is said- aims to fight against abuse and child prostitution, not to penalize “sexual relationships among equals”. To this purpose, it will be considered a crime (abuse) to perform sexual acts with a person under sixteen, even if he/she consents, but with an important qualification: there will be no crime if both are alike in age and maturity, not to penalize behaviours that might belong to social reality.
It’s certainly laudable to protect minors; but there are two sides of this project which call my attention. One is this new figure of speech: “sexual relationships among equals”, subjective and ambiguous as they come, and introductory of an unwanted moral content in the Penal Code; not to mention that it might even violate the Constitution, as far as it restricts the minors’ freedom to choose their sexual partners. Besides, it suggests -or, at least, opens the door to- the possibility of extending, under the same “equals” fundation, the exemption of responsibility to other typified criminal behaviours.
The other is the wrong -to my belief- assumption that only sexual relationships “among equals” (whatever this means) belong to the social reality. No doubt, such relationships are much more common than those taking place among “unequals”; but dismissing the latter from social reality is a too bold step. Statistics support that many Lolitas choose an adult as their sexual playmate, and it’s also not unfrequent to find boys who sleep with women of age. Why these cases should be outside of social reality?
For typifying a crime, we must in the first place to attend to the legal right we want to protect; in this case, minors’ sexual freedom. But protecting a freedom by way of curbing it sounds somewhat puzzling, and we wonder: what does sexual freedom precisely mean? Lacking a legal definition, and linking to the aim of fighting sexual abuse, it’s reasonable to understand it as, for instance, the freedom to decide, consciously and responsibly, upon how a person wants to sexually dispose of their bodies; and this ability to freely and maturely decide, this sexual responsibility, the teenager either has it or lacks thereof, but it has nothing to do with the “likeness in age and maturity” of the chosen mate. (Quite another thing would be the how easily they can be influenced; but, had we to take into account this ductility of human will in every behaviour, we’d end up doing without the principle of responsibility and, then, we’d have to dismantle the whole penal thingy.) Thus, if the Government considered that people under sixteen lack the necessary ability for taking a mature decision on their sexual activities, all sex with them should be penalized, with no exception. But this is not the case: the future revision of the Spanish penal code, by allowing sex among equals, clearly means that preserving the virginity of minors until they can dispose of sensibly is not its goal; and the only conclusion is, the boasted protection of minors consists simply in limiting the range of people they can chose as mates: only those who are alike in age and growth. We don’t aim, then, at our children not playing doctors before sixteen, but at them playing among themselves. We don’t mean to defend our Lolitas’ integrities, but to keep Humbert Humbert away from the party.
On the other hand, Spain struggles for many years to achieve an earlier sexual education and development for teenagers; our broadcast programming abunds in uncurbed content full of explicit references to sex and promiscuity which can’t but arise sexual interest of children and stimulate their replaying of the watched behaviours; and during the last decades the age for having the first sexual experiences has dropped one or two years. In such a society sounds somewhat contradictory to postpone the legal acknowledgement of such earlier sexual ripeness.
Then, how this selective curb is justified?, how can we explain this sexual consent age’s leap from thirteen to sixteen… only when it comes to sex with adults?
And which is the undefined limit for this “alikeness in eath and ripeness”? Definitely not sixteen, as, happening to be absurd to incriminate two minors who had had sexual intercourse between them, making victims of themselves at the same time, the exception wouldn’t be necessary in the legal text. Eighteen, perhaps? Hmm… Sexual relations between a boy eighteen and a girl fifteen don’t seem to be outside the “social reality” that wants to be respected, as such couples must be, certainly, quite common in our nowadays sexually liberated society. Twenty, then? Maybe. We don’t know, and we won’t know until we build case-law along the years to come. Every new breach exposed to our judges’ capriciousness turns into a crack for Justice, in upper-case letters.
Be as it will, there is an undeniable conclusion: when we fight sexual abuse and seek minors’ sexual freedom protection, if we consent young adults having intercourse with minors and we forbid the same to the rest of adults, we’re presupposing the laters fulfilled abuse, violating the sacred presumption of innocence. And this, reader, is an outrage; a discrimination implying the system’s incompetence, or failure and give up, to objectively tell in which cases there is abuse and in which don’t. It’s easier to imprison any adult who had sexual relations with a young teenager, regardless of the consent, than trying to find out whether or not there was abuse. Worse yet: it’s not only easier, but politically more profitable, as it suits the morals of a vindicating and outspoken part of the population who don’t like their young daughters -it’s always the daughters- to go out with older boys, and who would be delighted to see these in jail.
