A juvenile court has called upon legislators to consider lowering the age of consent to address the ever-growing reality of sex among under-16s, and instead embark on a more effective sex education campaign.
The issue came to the fore when a 15-year-old boy and his 14-year-old girlfriend ended up in court, separately charged with defilement and engaging in sexual activity with a minor under the age of 16.
Such a minor is deemed a vulnerable person in terms of article 208AC of the Criminal Code.
Their sexual relationship came to light after the girl gave birth.
Social welfare officials flagged the matter to the relative authorities, triggering police investigations which ultimately led to criminal charges against the underage parents. During proceedings before the Juvenile Court both the boy and girl opted for their right not to testify against each other to avoid self-incrimination.
The court observed that this case was not the first of its kind.
The prosecution produced no other witnesses or documentary evidence “that could somehow result in a conviction,” observed Magistrate Abigail Critien.
The alleged offences had taken place when the boy was almost 16, which means a few months to go to the current age limit of sexual consent. His girlfriend was just over 14.
When delivering judgment in respect of the boy, the court observed that this case was not the first of its kind.
The magistrate had, in fact, presided over similar cases where in the absence of the “best evidence”, the court had no option but to acquit the accused.
However, the crucial question that arose at this stage was whether it was time for the legislator to consider lowering the age of sexual consent from 16 to 14, bringing it in line with the age when a young offender may face criminal prosecution in court.
If not, should the legislator at least consider decriminalisation in cases where both underage minors of approximately the same age and same degree of maturity engage in consensual sex, suggested the court.
When putting the matter to the legislator, the court carried out a detailed study of the legal scenario applicable throughout Europe, focusing on each EU member state to understand better the way society has evolved.
“We are living in a world where, whether right or wrong, one must admit that promiscuity is a reality and that the age at which minors or adolescents are engaging in sex is constantly getting lower,” observed Magistrate Critien.
The EU Directive on combatting sexual abuse and sexual exploitation of children and child pornography deals with the age of sexual consent which varies between 14 and 16.
The subject also features under the Lanzarote Convention on the protection of children against sexual exploitation and sexual abuse.
After analysing the criminal laws throughout all 27 EU member state jurisdictions, the court concluded that the average age of consent in Europe currently stood at 14.25, well below the Maltese age limit of 16.
We are living in a world where, rightly or not, minors are “growing up” faster and experimenting with their sexuality at a younger age, observed the magistrate.
Given this reality, it would be wise to embark upon a “useful and serious discussion” on this subject which would hopefully result in a lowering of the age of sexual consent so as to reflect current lifestyle.
This would also bring our system in line with the average age limit currently applicable throughout the rest of Europe.
Such amendments ought to be considered in cases when the alleged offenders are young teens, of the same or almost the same age and personal development who have no “malicious intent” nor any interest in testifying against each other.In the case before the court in Malta, the minors consented to sex and had no intention of “defiling” anyone.
All they wanted was simply “another teenage experience and no more”.
Perhaps it was time to introduce “more filtering” and laws that are more selective in their approach because it was a pity that such underage teens who “after all only meant to ‘have fun’ together” ended up criminally charged in court.
The police’s hands are tied in such circumstances and charges are pressed against both parties.
But the police and the courts should focus resources on crimes that merit time and effort rather than on such situations which are not even classified as criminal offences in other countries.
And “a sex education campaign would be more effective than prosecution in court,” observed the magistrate, calling upon the legislator to consider lowering the age of consent and decriminalising sexual activity in such scenarios.
The court also ordered that a redacted copy of the judgment, removing all references to the parties’ identity, was to be sent to the Prime Minister and the Justice Minister for consideration.
Lawyer David Gatt was counsel to the boy. Lawyer Edward Gatt was counsel for the girl.