The Court established parameters for judges and prosecutors who deal with cases of minors to evaluate whether an intimate relationship was really allowed.
The Constitutional Court issued a ruling in which it recognizes that consent is important in sexual relations between adolescents from the age of 14, but establishes guidelines, aimed at judges and prosecutors who deal with cases of minors, so that justice operators determine when that consent is valid or not.
With six votes in favor and three against, the plenary session of the Constitutional Court (CC) declared the “additive constitutionality” of a norm of the Comprehensive Penal Code (COIP) consulted in 2018 by a judge from the Adolescent Offenders Unit and recognized that From the age of 14, young people have the ability to consent to a sexual relationship between equals, not with adults, and only under certain parameters.
It is not that the Court is opening the door for them to start a sexual life at an early age. Its ruling is directed rather to judges and prosecutors who deal with cases of minors so that they, as justice operators, can assess whether there was a real consent or not when they have to investigate or judge an adolescent who is prosecuted for alleged violation, he explains the jurist and professor Juan Pablo Albán.
According to the COIP, whoever has sexual relations with a minor can be accused of committing a crime, regardless of their age. But in the ruling of December 15, the Court modified paragraph 5 of Article 175, which currently reads: “In sexual crimes, the consent given by the victim under 18 years of age is irrelevant,” and added the following: following: “Except in the cases of people over 14 years of age who are capable of consenting to a sexual relationship.”
What are those parameters?
This is where the substance of the Court’s ruling comes in, which has given much to talk about due to the misinterpretation of the information.
The Court issued guidelines that judges and prosecutors must take into account to recognize whether said consent has been real or flawed. Among these are the following: consent must be given freely, voluntarily, autonomously, without pressure of any kind, without violence, threat or coercion. The adolescent must be able to give his approval based on his maturity, progressive autonomy and evolution of faculties.
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Justice operators must identify the non-existence of asymmetric or unequal power or subjection relationships that vitiate said sexual consent among adolescents. And for this, the age difference, sex, degree of kinship, degree of maturity, experience, belonging to a minority group, the existence of a disability, the social and economic context, must be considered, among other aspects. cultural and ethnic, among others.
The Court clarifies that the assessment of consent must be carried out individually, based on technical reports, and determination of the principle of superior interest, guaranteeing the adolescent’s right to be heard.
The Court’s conclusion has to do with various provisions of our legislation that have been in force for years, explains Albán.
“For example, the Childhood Code, in its article 13, says that minors may exercise their rights progressively, according to their degree of maturity and psychological development. Article 60 of the same code, as well as 12 of the International Convention on the Rights of the Child, determine that in any matter that concerns the minor, their opinion and criteria must be taken into account to the extent that they have the psychological development and maturity to express an opinion ”.
Albán maintains that “if we allow the adolescent to vote at age 16, to prosecute their parents at age 15 to pay alimony, we allow them from the age of 14 to form associations for legal purposes and allow them to exercise a series rights, it is at least debatable that consensual sexual relations between adolescents are not criminalized ”.
For this reason, the Court concludes that “the norm consulted is not compatible with the rights of adolescents to the free development of their personality, to make free, informed, voluntary and responsible decisions about their sexuality and privacy, recognized in the Constitution.”
Albán understands that there are reasons to mistrust justice, but considers that judges and prosecutors will adhere to the standard that the Court has set, since they will not want to be singled out as those who have given impunity to an adolescent who has committed a sexual crime or On the contrary, do not punish those who have not committed it. (I)
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