Ages of consent in South America

Age of consent for heterosexual sex by country
     – 13
     – 14
     – 15
     – 16

The ages of consent for sexual activity vary by jurisdiction across South America. The specific activity engaged in or the gender of its participants can also be affected by the law. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, for example close in age exceptions may exist and are noted when relevant. The only country in South America where male same-sex sexual conduct is illegal is Guyana and a higher age of consent for same-sex sexual relations in Chile and Paraguay.

The below is a list of all jurisdictions in South America as listed in List of sovereign states and dependent territories in South America.

Introduction

In South America, many countries have different levels of protection or of restriction for sexual activities with minors. The age at which there are no restrictions indicates the moment when someone reaches full sexual autonomy with respect to the law, while the minimum age of consent shows the minimum age at which someone can legally give consent, however under certain restrictions or circumstances. Sexual acts with someone under this minimum age are legally classified as sexual abuse. The extent and nature of these restrictions or circumstances vary according to the country and are explained below in the proper section.

Argentina

In Argentina, the age at which there are no restrictions for sexual activities is 18, while the minimum age of consent is 13 regardless of gender or sexual orientation.

Sexual acts with children younger than 13 are strictly illegal. Sexual relations with teens 13-18 are addressed by several laws. None of these laws explicitly outlaws such relations, but makes them open to prosecution under certain circumstances (such as if the relation is considered exploitative or if the minor was "corrupted").

Restrictions apply for sex with adolescents between the ages of 13 and 16 (Argentine Penal Code, Article 120). Charges can be brought only after a complaint by the minor, their parent or guardian - (Argentine Penal Code Article 72) (however, the State prosecutes when the minor has no parent or legal guardian, or when the offender is one of them).

The restrictions mentioned above (for ages between 13 and 16) apply whenever someone over 18, taking advantage of the sexual immaturity of the minor or of his/her superiority (preeminencia) with respect to the minor, practices one of the following acts:

(Arg. Penal Code, Article 120 combined with Article 119, 1st and 3rd paragraphs).

There is also a further Argentine law, 'Corruption of minors', which can bring charges to those manipulating minors below the age of 18 into having sexual relations - (Argentine Penal Code Article 125 - in Spanish).

Article 125 reads:

ARTICULO 125. - El que promoviere o facilitare la corrupción de menores de dieciocho años, aunque mediare el consentimiento de la víctima será reprimido con reclusión o prisión de tres a diez años.

Approximate translation: ARTICLE 125. - Anyone who promotes or facilitates the corruption of persons under eighteen, even with the consent of the victim shall be punished with seclusion or imprisonment of three to ten years.

Penalties are aggravated in three situations:

Bolivia

The age of consent in Bolivia is set at 14, per Article 308 Bis, Violación Infantes, Niña, Niño y Adolescentes, which punishes rape (violacion) of children under 14, "even without the use of force or intimidation and when consent is alleged" (así no haya uso de la fuerza o intimidación y se alegue consentimiento). There is a close in age exemption of three years.[1]

Brazil

In Brazil, the age of consent is 14, regardless of gender or sexual orientation, with a judicial precedent showing that a close-in-age exception that allows those aged 12 and 13 to engage in sexual activity with partners who are 5 years older or less is legal, although not legally formalized.[2] The age at which there are no restrictions for sexual activities is 18.

Sex with minors below the age of 14, at least for all those older than 18,[2] is equivalent to statutory rape and is legally defined by Article 217-A of the Brazilian Penal Code (see text here in Portuguese) as the "rape of a vulnerable person", with a penalty of 8 to 15 years in prison.[3]

The prostitution of minors (all ages under 18) is punished by law and is prosecuted by the State, according to the Code of Minors (Article 244-A), as well as according to the Penal Code, Articles 218-B, 227, 230, 231 and 231-A. The law makes no distinctions between sexual orientation cases.

In any case, only individuals aged 18 or older can be legally charged, since this is the Brazilian age of criminal responsibility according to the Federal Constitution, Article 228.

History

The Brazilian Imperial Code, in its Article 219, added by Notice 512 of 1862, established the age of 17 for the legal presumption of violence in sexual relations.[4] Later on, the Republican Penal Code of 1890, in its Article 272, lowered this age to 16.[5]

The Penal Code of 1940 lowered the presumption of violence in sexual acts (equivalent of statutory rape) to 14 (Article 224, “a”, of the then Penal Code), but consensual sex with adolescents aged 14 to 17 could still be prosecuted under “corruption of minors” (Article 218) or “seduction of minors” (Article 217) while, in both cases, only parents could file charges to form a lawsuit (Article 225).

Sex with young adolescents aged 12 or 13, although under the age of statutory rape, were then also prosecuteable only by parents (Article 225) (see old version of the 1940 Penal Code here – in Portuguese), while sex with those younger than 12 was prosecuted by the State based on the legal definition of child (Article 2nd of the Code of Minors).

As an exception, the State could prosecute the offender when the minor was at any age below 18 but only when the family of the minor was so poor that they couldn’t afford a lawsuit (Penal Code, article 225, I) or when the offender was the father, mother, stepfather, stepmother or legal guardian of the minor (Penal Code, article 225, II).

On March 2005, the crime of seduction of minors (Article 217 of the then Penal Code) was abolished by the Brazilian Congress. It was applicable only when the victim was a virgin woman between 14 and 18.

On August 2009, the crime of corruption of minors (former Article 218 of the Penal Code) referring to consensual acts with adolescents aged 14 to 17 without parental consent was abolished by Law 12.015/2009. The crime was replaced with a new one under the same name but now applicable to sexual acts with minors below 14, however prosecuteable not more by legal guardians but by the State (according to the new Article 225 of the Penal Code).[6]

The crime of sexual harassment (Article 216-A of the present Penal Code) practiced in situations of hierarchical superiority or ascendency in a job, position or occupation is now punisheable with a higher penalty if the victim is younger than 18 years old (2nd Paragraph).

Chile

In Chile, the age at which there are no restrictions for sexual activities is 18, while the minimum age of consent is 14. Limitations exist between 14 and 18 years old (Art. 362 Chilean Penal Code). Even when not clearly stated in Article 362, later on, in Article 365, homosexual activity is declared illegal with anyone under 18 years old.

Art. 362.[7] El que accediere carnalmente, por vía vaginal, anal o bucal, a una persona menor de catorce años, será castigado con presidio mayor en cualquiera de sus grados, aunque no concurra circunstancia alguna de las enumeradas en el artículo anterior.

Translation: Whoever has carnal access, by vaginal, anal or oral route, to a person under fourteen years, shall be punished by imprisonment of any degree, if circumstances listed in the previous article are not also present.

There also exists in the Chilean Penal Code, a legal figure called estupro. This figure establishes some limitations to sexual contacts with children older than 14 and younger than 18 years old. The estupro legislation (Article 363) defines four situations in which sex with such a children can be declared illegal even if the minor consented to the relationship (non-consensual sex with anyone older than 14 y.o. falls under the rape legislation, Article 361; while any sexual contact with anyone under 14 y.o. falls under the statutory rape legislation, Article 362.):

The sexual acts regulated by Articles 361 (rape), 362 (statutory rape), 363 (estupro) and 365 (homosexual sex) are defined as "carnal access" (acceso carnal), which means either oral, anal or vaginal intercourse. Other articles within the penal code regulate other sexual interactions (Articles 365 bis, 366, 366 bis, 366 ter, 366 quarter). Article 365 bis, regulates the "introduction of objects" either in the anus, vagina or mouth. Article 366 bis, defines "sexual act" as any relevant act with sexual significance accomplished by physical contact with the victim, or affecting the victim's genitals, anus or mouth even when no physical contact occurred.

Article 369 states that charges relating to these offenses (Articles 361 to 365) can be brought only after a complaint by the minor or the minor's parent, guardian or legal representative. Nevertheless, if the offended party cannot freely file the complaint and lacks a legal representative, parent of guardian, or if the legal representative, parent or guardian is involved in the crime, the Public Ministry may proceed by its own.

History

In 1810, the age of consent for opposite-sex activity was 12. In 1999, the age of consent was set at 14 for both girls and boys in relation to heterosexual sex.[8] Homosexual acts were decriminalized in 1999, with an age of consent of 18.[9] In 2011, the Tribunal Constitucional de Chile confirmed that the age of consent is 14 for heterosexual relations (for both girls and boys), as well as for lesbian relations (Woman-girl), but it is 18 for male homosexual relations.[10][11]

Colombia

The Criminal Code of Colombia (Act 599 of 2000) as it was modified by article 4 of law 1236 of 2008, sets the age of consent at 14, regardless of gender or sexual orientation.[12]

Art 208 states: El que acceda carnalmente a persona menor de catorce (14) años, incurrirá en prisión de doce (12) a veinte (20) años.

Translation: Whoever has sexual intercourse with a person under fourteen (14) years is liable to imprisonment of between twelve (12) and twenty (20) years.

Art 209 states: El que realizare actos sexuales diversos del acceso carnal con persona menor de catorce (14) años o en su presencia, o la induzca a prácticas sexuales, incurrirá en prisión de nueve (9) a trece (13) años.

Translation: Whoever performs sexual acts other than sexual intercourse with a person under fourteen (14) years, or in his/her presence, or induces him/her to engage in sexual practices, is liable to imprisonment of between nine (9) and thirteen (13) years.

Ecuador

Under the new Criminal Code, which came into force in 2014, the minimum age of consent in Ecuador is 14, regardless of gender or sexual orientation. However, sexual acts with teens aged between 14 and 18 can still be prosecuted in certain circumstances. An adult who uses deceit (engaño) to gain the consent of an underage youth (aged between 14 – 18 years) can be prosecuted under the Estupro law (Article 167);[13] also when consent is obtained through exploitative means the act can be prosecuted under the Childhood and Adolescence Code of 2003- Article 68.

Sex with a child under 14 is considered rape under Artículo 171.- Violación, which reads: "It is considered rape the carnal access (...) 3. when the victim is under 14."[13]

The Childhood and Adolescence Code of 2003, in its Article 68, have broadened the definition of sexual abuse of minors to include any physical contact or suggestion of sexual nature obtained through seduction, blackmail, harassment, deceit, threat or similar means.

Falkland Islands (UK)

Age of sexual consent is 16, regardless of sexual orientation or gender since 2006.[14]

South Georgia and the South Sandwich Islands (UK)

Age of sexual consent is 16, regardless of sexual orientation or gender since 2006.

French Guiana (France)

Guyana

The age of consent in Guyana is 16. The age of consent was raised from 13 to 16 on October 31, 2005, by a unanimous resolution of the Guyanese parliament.[15][16][17] Whilst male homosexual 'indecency' and all attempted anal sex carries a 10-year sentence, anal sex itself is punishable with life imprisonment. Female homosexual activity is not mentioned in the 1860 “buggery laws”.[18]

Paraguay

The general age of consent in Paraguay is 14 for heterosexual relations and 16 for homosexual .[19]

Article 135 of the Paraguayan Penal Code, which covers the sexual abuse of children, defines child (“niño”), for the purposes of the article, as anyone under 14 (see 8th clause). Sexual acts in general with a child under 14 are punished with up to three years in prison or a fine (1st clause). The same penalties occur when sexual acts are performed by the adult before someone under 14 or are headed to him, or when the child is induced to practice it (with another child) before an adult or with a third person. In case of sexual penetration (“coito”), the term is aggravated to three to twelve years in prison (4th clause). If the victim is under 10, penalties may increase in up to fifteen extra years (4th clause, changed by Law 3440/2008). When the offender is under 18, accusations may be lifted (6th clause).

Article 138 of the same Code, called “Homosexual acts with minors”, reads: “Who, being over the age of majority, performs sexual acts with a person of the same sex between the ages of 14 and 16, will be punished with up to two years in prison or with fine”.(see,[20] click link in "texto completo").

Marriage and adultery

There is also a further crime called estupro (Article 137), which is defined as “extramarital sex” (adultery) practiced with female adolescents between 14 and 16. This crime is punished with a fine and applies when one of the partners is married. If the offender is under 18, accusations may be lifted.

Article 137 of the Penal Code reads: “(1) The man who persuades a woman from 14 to 16 to perform extramarital coitus (sexual intercourse) will be punished with fine; (2) When the defendant is under 18 the penalty may be disconsidered.” (see sources above).

Peru

The age of consent in Peru has changed several times during recent years, and has been subject to political debates,[21][22] but today it is fixed at 14, regardless of gender or sexual orientation, in accordance with a 2012 decision of the Constitutional Court of Peru.[23] Articles 173 and 176 of the Criminal Code are the relevant prohibitions against sexual conduct with children under 14. Consensual sexual acts with youth aged 14 – 18 are not illegal, although there is a prohibition against using deceit, abuse of power or use of the vulnerability of a teenager to gain sexual access to a minor under 18. (Article 175).

Uruguay

The age of consent in Uruguay stands at 15 regardless of gender or sexual orientation.[24]

Between the ages of 12 and 15, there is an intermediary status where violence is legally presumed until otherwise proven.[25] In this case, the onus probandi (the burden of proof) shifts from the plaintiff to the accused, who still has the chance to prove in their defense that consent was given. Below the age of 12 proof of consent is not a defense.

Uruguay also has a Corruption of minors law, which can bring charges to those manipulating minors below the age of 18 into having sexual relations -.[26] For ages over 15, however, a lawsuit can be initiated only by a minor or the minor's parents, except when the minor has no parents or legal guardian; or where the accusation is brought against a parent or legal guardian.[27]

Suriname

The age of consent in Suriname is 14 Although the legal age of sexual consent is 14 years old, it was not enforced effectively. The marriage law sets the age of marital consent at 15 years old for girls and 17 years old for boys, provided parents of the parties agree to the marriage. Parental permission to marry is required up to the age of 21. The law also mandates the presence of a civil registry official to register all marriages.[28]

See also:

Venezuela

The age of consent in Venezuela stands at 16 regardless of gender or sexual orientation. Sexual acts with children aged between 12 and 16 are punished under Article 378; furthermore, consensual sex with a woman 16-21 can be punished if the woman was "seduced" under the promise of marriage and she was "known to be honest".

Artículo 378 del Código Penal Venezolano:[29]

" El que tuviere acto carnal con persona mayor de (12) y menor de (16) años, o ejecutare en ella actos lascivos, sin ser su ascendiente, tutor ni institutor y aunque no medie ninguna de las circunstancias previstas en el artículo 374, será castigado con prisión de seis a dieciocho meses y la pena será doble si el autor del delito es el primero que corrompe a la persona agraviada. El acto carnal ejecutado en mujer mayor de (16) años y menor de (21) con su consentimiento, es punible cuando hubiere seducción con promesa matrimonial y la mujer fuere conocidamente honesta; en tal caso la pena será de seis meses a un año de prisión. Se considerará como circunstancia agravante especial, en los delitos a que se contrae este artículo, la de haberse valido el culpable de las gestiones de los ascendientes, guardadores o representantes legales u otras personas encargadas de vigilar la persona menor de edad o de los oficios de proxenetas o de corruptores habituales.


Approximate translation: Article 378: "Whoever has sexual intercourse with a person over twelve,(12) years and younger than sixteen (16),years or implements it obscene acts without their influence, guardian or settlor and although it is not bound by any of the circumstances provided for in Article 374, will punishable by six to 18 months imprisonment and the penalty is doubled if the offender is the first that corrupts the injured party. the carnal act performed in women over sixteen (16) years and younger than twenty one years (21),with their consent, is punishable if any seduction with promise of marriage and the woman I be honest with knowledge of the facts; in which case the penalty is six months to a year in prison. will be considered as a special aggravating circumstance in crimes under this article shrinks, that part of the blame for the efforts of ascendants, guardians or legal representatives have valid or others responsible for the lower control or pimps offices or regular corrupters.

See also

Literature

References

  1. ↑ http://www.cepal.org/oig/noticias/paginas/9/46289/Bol2013Ley348Leyintegralibredeviolencia.pdf
  2. 1 2 Brazilian justice system frees man, 18, arrested for publicly kissing young teenager, 13 — 'Últimas Notícias' (Last News) - MSN Estadão. Online version of Estadão newspaper. (Portuguese)
  3. ↑ (Portuguese) Brazilian Penal Code - official text (see Article 217-A)
  4. ↑ (Portuguese) Fonte do Saber - Violência sexual presumida para menores de 14 anos
  5. ↑ (Portuguese) A problemática da presunção de violência nos crimes contra os costumes (The matter of presumption of violence in crimes against morals) (Prudente, Neemias Moretti – Boletim Jurídico, Edição 201)
  6. ↑ (Portuguese) http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del2848.htm (Penal Code of 1940, old version showing changes – Articles 218 and 225)
  7. ↑ http://www.leychile.cl/Navegar?idNorma=1984
  8. ↑ http://www.leychile.cl/Navegar?idNorma=138814
  9. ↑ http://www.bbc.com/news/world-latin-america-18546587
  10. ↑ http://www.movilh.cl/tribunal-constitucional-relaciones-lesbicas-son-legales-desde-los-14-anos-y-las-gays-desde-los-18/
  11. ↑ http://www.conapred.org.mx/index.php?contenido=noticias&id=122&id_opcion=&op=447
  12. ↑ http://perso.unifr.ch/derechopenal/assets/files/legislacion/l_20130808_01.pdf
  13. 1 2 http://www.asambleanacional.gob.ec/system/files/document.pdf
  14. ↑ Routledge International Encyclopedia of Queer Culture edited By David A. Gerstner page 655
  15. ↑ http://www.acdi-cida.gc.ca/acdi-cida/acdi-cida.nsf/eng/EMA-218121448-P6L
  16. ↑ http://wiig.wordpress.com/2005/10/28/national-assembly-fixes-age-of-consent-at-16/#more-132
  17. ↑ http://www.unhcr.org/refworld/country,,FREEHOU,,GUY,,4738691564,0.html
  18. ↑ http://typo3.lsvd.de/fileadmin/pics/Dokumente/Homosexualitaet/With_the_government_in_our_bedrooms_-_November_2006.pdf
  19. ↑ (Spanish) "GLIN.gov – Changes introduced by Law 3440/2008". (click on PDF file in “texto completo”)
  20. ↑ Global Legal Information Network
  21. ↑ Lindsay Goldwert (2007-06-22). "Peru Lowers Age Of Consent To 14". CBS NEWS. Retrieved 2009-12-02.
  22. ↑ "Pleno Reconsidero Exoneracion de Sedunda Votacion a Proyecto Sobre Libertad Sexual" [House Reconsidered and Excluded Second Vote for Project on Sexual Freedom] (in Spanish). El Heraldo. 2007-06-27. Retrieved 2010-09-02.
  23. ↑ "Demanda de inconstitucionalidad interpuesta por diez mil seiscientos nueve ciudadanos contra el artículo 1° de la Ley N° 28704 que modifica el artículo 173°, inciso 3° del Código Penal, sobre delito de violación sexual contra víctima entre 14 y 18 años de edad" (PDF) (in Spanish). 2013-01-07.
  24. ↑ Uruguayan Penal Code Articles 272 and 267
  25. ↑ (see article 272, “1” of the Penal Code)
  26. ↑ Uruguayan Penal Code Article 274
  27. ↑ (see article 279 of the Penal Code)
  28. ↑ http://www.state.gov/j/drl/rls/hrrpt/2010/wha/154520.htm
  29. ↑ http://www.mp.gob.ve/LEYES/codigo penal/codigo penal.html
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