Ages of consent in South America

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Age of consent for heterosexual sex by country
     – puberty
     – 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, Paraguay and Suriname.

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[edit]

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[edit]

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 and/or sexual orientation.[citation needed]

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, 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 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:

  • (a) if the minor is under 13;
  • (b) when sex is obtained by the means of deceit, violence, threat, abuse of authority or by any other means of intimidation or coercion, as well as when the offender is a parent or legal guardian, brother/sister, spouse, or someone who is a constant companion or who is responsible for educating or guarding the minor; or
  • (c) when the offender takes advantage of being a previous companion to the minor, in order to violate any of the restrictions aforementioned for ages between 13 and 16 (Argentine Penal Code - Article 119, 4th paragraph, section “f” - in Spanish).

Bolivia[edit]

The age of consent in Bolivia is set at puberty regardless of gender and/or sexual orientation, according to Article 308 of the Bolivian Penal Code (PDF) (in Spanish), which says: “if the rape (violación) was to a minor who has not reached the age of puberty, the act will be punished with ten to twenty years of prison”. This article refers only to “carnal access” (acceso carnal), whereas article 312 covers all other “lascivious acts” (actos libidinosos) not characterized as “carnal access”, which are punished with one to three years of prison.

There is also a crime called estupro (article 309), which applies for consented relations obtained by the means of seduction or deceit, with a female adolescent, defined as a “woman who has reached puberty and is under 17”.

Both violación and estupro are aggravated (article 310) with an extra one third of the term when: (a) there is a serious health damage to the victim; (b) the offender is a parent, son or daughter, brother or sister, half-brother or half-sister, stepfather or stepmother, or is in charge of education or custody of the victim; (c) there are multiple offenders.

Finally, the crime of “corruption of minors” (article 318) is applicable to those manipulating a person under 17 into sexual acts, with a term of one to five years in prison, aggravated (article 319) to 1 to 6 years when (a) the victim is under 12; (b) the crime has the purpose of profit; (c) there was deceit, violence or any other means of harassment or coercion; (d) the victim is mentally ill or disabled; (e) the accused is a husband, parent, brother, legal guardian, teacher or chaperone of the victim.

Bolivia's MAS-controlled congress approved a law on October 22, 2010, which allows sexual relations from age 12 as long as the partners are no greater than three years apart in age, and there was no violence or intimidation involved.[1] The specific language of this section of the new law — proposed by the president of the lower chamber, Héctor Arce, to reform the Penal Code with the intent of protecting children and adolescents from sexual aggression — is intended to exempt younger children from punishments intended for older persons having sexual relations with minors.

Brazil[edit]

In Brazil, the age of consent is 14, regardless of gender and/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[edit]

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[edit]

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.

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.):

  • When one takes advantage of a mental anomaly or perturbation of the child, even if transitory.
  • When one takes advantage of a dependency or subordinate relationship of the child, like in cases when the aggressor is in charge of the custody, education or caretaking of the child, or when there exists a laboral relationship with the child.
  • When one takes advantage of severely neglected children.
  • When one takes advantage of the sexual ignorance or inexperience of the child.

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[edit]

In 1810, the age of consent for opposite-sex activity was 12, then in 1976 it was raised to 14 and then in 1998 same-sex activity was made legal - With an "unequal" age of consent statute provision set at 18.

Colombia[edit]

The age of sexual consent in Colombia is 14 years, according to Article 208 and 209 of Act 599 of 2000 (Effective Criminal Code). Sexual consent is valid as long as no violence, prostitution, and pornography or exploitation occurs.

Ecuador[edit]

The minimum age of consent in Ecuador is 14, regardless of gender and/or sexual orientation. However, sexual acts with children aged between 14 and 18 can still be prosecuted. A person who uses "seduction or deception" to gain the consent of an underage girl can be prosecuted under the Estupro law; when consent is obtained through exploitative means the act can be prosecuted under the Childhood and Adolescence Code of 2003- Article 68.

The age of consent of 14 is defined by the Ecuatorian Penal Code, article 512, item 1, for the crime of statutory rape (violación), and also by article 506 for the crime of indecent assault (atentado contra el pudor) without violence or threats. Sexual intercourse with a child younger than 14 is considered rape, regardless of circumstances:

Art. 512.- Violación es el acceso carnal, con introducción parcial o total del miembro viril, por vía vaginal, anal o bucal, con personas de uno u otro sexo, en los siguientes casos:

1.- Cuando la víctima fuere menor de catorce años;

2.- Cuando la persona ofendida se hallare privada de la razón o del sentido, o cuando por enfermedad o por cualquier otra causa no pudiera resistirse; y,

3.- Cuando se usare de violencia, amenaza o de intimidación[7]

(Approximate translation:) Article 512 .- Rape is sexual intercourse with the partial or total introduction of the penis in the vagina, anus or mouth of people of either sex, in the following circumstances:

1 .- When the victim is under fourteen;

2 .- If the victim is found to be deprived of reason or judgment, or when they could not resist due to illness;

3 .- When using violence, threats or intimidation

There is also a clause about corruption of minors (articles 509 and 510 of the Penal Code), for a crime called “estupro”, which applies specifically when consent to sexual relations with female adolescents between 14 and 18 is obtained by the means of seduction or deceit. The adolescent, however, must fit the definition of “honest woman” for the crime to be applied.

Article 509 reads:[7]

Art. 509.- Llámase estupro la cópula con una mujer honesta, empleando la seducción o engaño para alcanzar su consentimiento.

(Approximate translation:) Article 509:- Estupro is intercourse with an honest woman, using seduction or deception to achieve her consent.

Moreover, 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)[edit]

Age of sexual consent is 16 for heterosexual couples and lesbians, 18 for homosexual males.[citation needed]

French Guiana (France)[edit]

For this section, see Ages of consent in Europe#France.

Guyana[edit]

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.[8][9][10] 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”.[11]

Paraguay[edit]

The general age of consent in Paraguay is 14 for heterosexual relations and 16 for homosexual relations. The age of consent for extramarital intercourse with female adolescents is 16 (see below)[12][13] .[14]

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,[15] click link in "texto completo").

Marriage and adultery[edit]

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).

On the other side, the Avert.org website affirms that Paraguay’s general age of consent is 16 outside of wedlock and 14 only in case of marriage, due to a probable misinterpretation of the law cited above. The website provides no legal sources.

Peru[edit]

The age of consent in Peru is 14. The age of consent has changed several times during recent years. The age of consent was raised to 18 in 2006, from 14. In 2007, Peru's Congress voted overwhelmingly to return the age to its prior age of 14, regardless of gender and/or sexual orientation,[16] however, due to great controversy, the bill was 'reconsidered' or withdrawn.[17] However the Constitutional Court of Peru, newly lowers the age of consent to 14.[18]

According to Article 173 of the Peruvian Penal Code, as modified by Law Nº 28704 (in Spanish) sexual intercourse as well as analogous acts introducing objects or body parts are punished differently depending on the age of the young person – life sentence when the young person is under 10, from 30 to 35 years of prison when the young person is between 10 and 13, and from 25 to 30 years of prison when the young person is between 14 and 17. When the offender is in position of “particular authority” or trust over the victim, including parental bonds, the punishment is also a life sentence for the latter two.

There is also a crime called seduction (seducción) in Article 175 as modified by Law Nº 28251 (in Spanish), which applies to sexual intercourse (or similar) obtained by the means of deceit, with teenagers between 14 and 18. The punishment is 3 to 5 years of prison.

A further crime called “Indecent assault on minors” (actos contra el pudor en menores) is seen in Article 176-A, and applies in situations in which the offender performs an act or causes the minor under 14 years of age to perform an act upon him or herself or another that involves improper touching of the "intimate parts" or general indecent lewdness without intention of engaging in sexual intercourse or similar. This crime is punished differently depending on the age of the victim – from 7 to 10 years of prison when the victim is under 7, from 6 to 9 years of prison when the victim is between 7 and 9, and from 6 to 8 years of prison when the victim is between 10 and 13. When the offender is in position of “particular authority” or trust over the victim, including parental bonds, the punishment is from 10 to 12 years of prison.

Finally, article 178 establishes a different provision – if any of these offenses result in pregnancy, the offender is additionally required to provide food for the offspring.

Therapeutical treatment is also required in article 178-A – after medical examination – for all sexual offenders in order to facilitate his social readaptation.

Article 184 provides equal punishment for anyone who cooperates in any of these crimes by abuse of authority, charge or trust over the minor, including any family.

South Georgia and the South Sandwich Islands (UK)[edit]

Age of sexual consent is sixteen for heterosexual couples and lesbians, eighteen for homosexual males.[citation needed]

Suriname[edit]

The age of consent in Suriname is 16 for heterosexual boys and girls[citation needed] and for all same-sex sexual relations the age of consent is 18 under section 302, even though section 302 is hardly ever enforced.[citation needed]

See also:

Further reading:

Uruguay[edit]

The age of consent in Uruguay stands at 15 regardless of gender and/or sexual orientation.[19]

Between the ages of 12 and 15, there is an intermediary status where violence is legally presumed until otherwise proven.[20] 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 -.[21] 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.[22]

Venezuela[edit]

The age of consent in Venezuela stands at 16 regardless of gender and/or sexual orientation. Sexual acts with children aged between 12 and 16 are punished under Article 379; 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 379 del Código Penal Venezolano:[23]

" El que tuviere acto carnal con persona mayor de doce (12) y menor de dieciséis (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 375, será castigado con prisión de seis a dieciocho meses y la pena será doble si el author del delito es el primero que corrompe a la persona agraviada.

El acto carnal ejecutado en mujer mayor de dieciséis (16) años y menor de veintiuno (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.

(...)

Approximate translation: Article 379: "Anyone who engages in sexual acts with a person aged at least twelve (12) but less than sixteen (16) years or performs lewd acts with her, without being an ascendant or guardian and in the absence of any of the circumstances described in Article 375, shall be punished with imprisonment of six to eighteen months and the penalty is doubled if the offender is the first who corrupts the victim.

The sexual acts performed upon a woman older than sixteen (16) years and younger than twenty-one (21), with her consent, are punishable if there was seduction with the promise of marriage and the women was known to be honest, in such case the penalty is six months to one year in prison.

(...)

See also[edit]

Literature[edit]

References[edit]

  1. ^ (Spanish) Aprueban en Bolivia ley que consiente relaciones sexuales a niños de 12 años
  2. ^ a b 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. ^ a b http://www.gnpplus.net/criminalisation/images/stories/documents_latin_america/ecuador_penal_code.pdf
  8. ^ http://www.acdi-cida.gc.ca/acdi-cida/acdi-cida.nsf/eng/EMA-218121448-P6L
  9. ^ http://wiig.wordpress.com/2005/10/28/national-assembly-fixes-age-of-consent-at-16/#more-132
  10. ^ http://www.unhcr.org/refworld/country,,FREEHOU,,GUY,,4738691564,0.html
  11. ^ http://typo3.lsvd.de/fileadmin/pics/Dokumente/Homosexualitaet/With_the_government_in_our_bedrooms_-_November_2006.pdf
  12. ^ (Spanish) OAS (Organization of American States) – Paraguayan Penal Code (PDF) (Law 1160/1997) PDF (1.04 MB)
  13. ^ (Spanish) http://www.noraruoti.com.py/cd/juridica/protegido/OtrasLeyes/Ley116097.htm
  14. ^ (Spanish) GLIN.gov – Changes introduced by Law 3440/2008 PDF (click on PDF file in “texto completo”)
  15. ^ Global Legal Information Network
  16. ^ Lindsay Goldwert (2007-06-22). "Peru Lowers Age Of Consent To 14". CBS NEWS. Retrieved 2009-12-02. 
  17. ^ "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. 
  18. ^ "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" (in Spanish). 2013-01-07. 
  19. ^ Uruguayan Penal Code Articles 272 and 267
  20. ^ (see article 272, “1” of the Penal Code)
  21. ^ Uruguayan Penal Code Article 274
  22. ^ (see article 279 of the Penal Code)
  23. ^ http://html.rincondelvago.com/prostitucion-infantil-en-venezuela.html