![]() ![]() The House of Lords affirmed in R v G7 that the absence of consent is irrefutably presumed where the victim is under 13 years of age “to the extent that the offence is one of strict liability… it is no defence that the accused believed the other person to be 13 or over” (Lord Hoffmann).8 In contrast, the French Constitutional Council ruled in February 2015 that French law “does not set an age of discernment in regards to sexual relations: it is for the courts to determine whether the minor was capable of consenting to the sexual relationship in question”.9 A historical account of the divergences in English and French laws on underage consent Where a person intentionally penetrates the vagina, anus or mouth of someone below the age of 13 with his penis, he is guilty of the offence of rape of a child under 13 (s 5 of the Sexual Offences Act 2003) - there is no further question about whether the victim had the capacity to consent. ![]() In contrast, the age of consent in England is 16, with the possibility of harsher sentences being meted out in cases where the victim is below the age of 13 (ss 5-8 of the Sexual Offences Act 2003). The Cour de Cassation, France’s highest criminal court, ruled in 2005 that “the state of constraint or surprise results from the very young age of children… which them incapable of realising the nature and gravity of the acts imposed upon them”.6 The defendant in that case was found guilty of rape, as the victims were between 1.5 and 5 years of age that “Sarah” was held to have consented to sex indicates a lacuna in the law which leaves those between 5 and 15 years of age prone to exploitation. In the absence of “violence, constraint, threat or surprise”, sex with a minor merely constitutes an “atteinte sexuelle”, which is a non-criminal infraction. However, “violence, constraint, threat or surprise” is a necessary element of offence of rape, as clearly stated in Article 222-23 of the French Penal Code. There are marked differences in the laws on sexual consent of minors in France and England. It comes as a shock, therefore, that an 11-year-old (“Sarah”)2 was deemed to have consented to sex with a 28-year-old man in a recent French decision, with rights groups now calling for the introduction of a legal age under which consent is irrefutably presumed to be lacking.3 The French public prosecutor stated that “there had been no violence, no coercion, no threat, no surprise”, as required in Article 222-23 of the French Penal Code for the offence of rape to be established.4 As a result, the offender was instead charged with “sexual infraction” under Article 227-25 of the French Penal Code, a non-criminal offence punishable by a 5-year prison sentence and a €75,000 fine.5 Had the offender been found guilty of rape of a minor under Article 223-24, he would have faced a maximum sentence of 20 years’ imprisonment. In most jurisdictions, the sexual relations between Humbert Humbert and Lolita would be unequivocally classified as rape, given the prevalence of minimum age limits for consent today. ![]() At 12, Lolita is sexually precocious Humbert Humbert recounts with faint surprise that “it was she who seduced me”. She rolled over to my side, and her warm brown hair came against my collarbone.”1 Lying at the heart of Lolita, Vladimir Nabokov’s controversial 1955 novel, is Humbert Humbert, a middle-aged literature professor who is filled with lust for the 12-year-old “Lolita”. I felt her eyes on me, and I knew her eyes had been laughing. Would she be shocked at finding me by her side, and not in some spare bed? Would she collect her clothes and lock herself up in the bathroom? … But my Lo was a sportive lassie. “Upon hearing her first morning yawn, I feigned handsome profiled sleep. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |