While participating in the recent parliamentary debate regarding various amendments to the Criminal Code, my colleague from the government's side, Franco Debono, brought up the issue of the age of consent. In fact, the MP mentioned appealing statistics regarding this matter.
Curiously, it transpires that the average age of consent in European countries is 15 and that the only country which stipulates the same age as ours is Turkey.
In revising the penal code, lately, Parliament rightly introduced harsher penalties for offences against minors. Furthermore, Maltese law in relation to the protection of minors has been made more comprehensive and we have even introduced new offences such as child labour.
This notwithstanding, I feel Dr Debono brought up a very valid point. He argued, and, I dare say, correctly so, that we should strive to strike a balance between affording all the necessary safeguards in order to best protect minors while avoiding unnecessary witch-hunts. It was therefore suggested in Parliament that we should consider reviewing the age of consent in Malta.
The law, as it stands today, gives rise to a number of anomalies. There's no doubt that it has always been the case that, like it or not, youngsters do become sexually active as soon as they reach puberty, and Malta is no exception. Furthermore, nowadays more than ever before, youths are enjoying a far more active social life and this, it has to be accepted, is conducive to more sexual activity. Technically, therefore, a large percentage of our youngsters are breaking the law, even though, as a rule, the powers-that-be are more often than not having to close an eye in this respect, and this is bigotry.
Civil law, on the other hand, is in stark contrast with criminal law in this respect. There is no civil impediment and, thus, people under 18 are allowed to marry. Statistics will show that, over the last few years, the number of under-aged people getting married has been substantial. Thus, though the penal law makes it a grievous offence for an adult to engage in intimacy with a person under 18, such provisions of the law do not apply if the person involved is married. To my mind this no longer makes sense because a considerable percentage of youths today are opting for alternative lifestyles, such as cohabitation, and for various reasons refrain from marriage. The law as it stands is indirectly penalising such alternative lifestyles. Though, ideally, the institution of marriage should be promoted and encouraged, as a lay state it is no longer politically correct to discriminate against other ways of life.
On the other hand, the courts have been taking even more rigorous measures in this regard than what they used to do in the past. Previously, the courts used to uphold the principle of corrupta non corrompitur, that is, a person could not be held criminally liable for defiling a minor if it were proved that the said minor would have already had sexual experiences. The courts have lately overruled this principle. Thus, ironically, a young person can be found guilty of having defiled a 17-year-old even if she would prove to be a prostitute. I fail to concur with this restrictive interpretation being given by the courts.
There also exists another lacuna in the law, which I had occasion to indicate during the said debate. There is no provision in the law to regulate instances of sexual activity when both parties happen to be minors. I myself have had occasion to defend a 17-year-old accused of defiling his 16-year-old girlfriend, and this is ridiculous because, in the strict sense of the law, in fact, both minors would have defiled each other.
More often than not, such instances happen when the parents of one of the parties would oppose the relationship and thus find it effortless to refer the matter to the police or threaten to do so in order to force a break-up of the relationship. This usually boils down to a form of blackmail.
It must also be pointed out that, over the last few years, the number of teenage pregnancies has exploded. On account of the aforementioned criminal implications, many of these minors will opt to register the child as being of an unknown father. If the father is mentioned, he could end up being prosecuted. This phenomenon is worrying indeed because it is clearly leading to social disruption and confusion. Therefore, cautiously but with responsibility, I will surely affirm that it is now necessary for the country to reconsider the age of consent and, perhaps, reduce it prudently to the age of 16.
Dr Herrera is a Labour member of Parliament.