Trends of age of consent legislation in Europe
| Author | Guangxing Zhu,Suzan van der Aa |
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
| DOI | http://doi.org/10.1177/2032284417699293 |
| Subject Matter | Articles |
Article
Trends of age of consent
legislation in Europe:
A comparative study
of 59 jurisdictions on
the European continent
Guangxing Zhu
Tilburg University, The Netherlands
Suzan van der Aa
Tilburg University, The Netherlands
Abstract
Over the past few decades, many national jurisdictions on the European continent have revised
their age of consent legislation. A comparison of the age of consent laws of 59 jurisdictions in 2004
and 2016 revealed three important developments to have taken place during the past 12 years. The
first trend – to raise the general age of consent and abolish very low ages of consent (<14 years) –
signals that nowadays much greater emphasis is placed on the protection of children against
negative and premature sexual experiences. This protectionist approach, however, comes at a
cost: A higher statutory age of consent can restrain children in their sexual autonomy. The second
trend emerging from the comparison was the full and complete equalization of the age of consent
for homosexual and heterosexual relations. While in 2004, one-third of the studied jurisdictions
still had discriminatory provisions for homo- or heterosexual sex, all of them have now adopted
laws that are neutral regarding the sexual orientation of the partners involved. The third trend is to
create a higher age limit for sexual behaviours in relationships of authority or dependence. This
acknowledgement of the need for increased protection of minors in relationships characterized by
a power imbalance deserves following by jurisdictions that have not distinguished a different age of
consent for authority relations (yet).
Keywords
Age of consent, child sexual abuse, sexual autonomy, equalization of heterosexuality and
homosexuality, relationships of authority
Corresponding author:
Guangxing Zhu, International Victimology Institute Tilburg, Tilburg University, Tilburg, The Netherlands.
Email: z.guangxing@uvt.nl
New Journal of European Criminal Law
2017, Vol. 8(1) 14–42
ªThe Author(s) 2017
Reprints and permissions:
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DOI: 10.1177/2032284417699293
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Introduction
In every society, the development of children is marked by a series of age-graded social and legal
boundaries governing the timing of transitions from one social, economic or personal status to the
next.
1
One such transition is the passage from the non-sexual child into the juvenile authorized to
engage in sexual activity. When it comes to sexuality, the age of sexual consent is usually referred
to as the age of consent.
2
It is an important legal mark that symbolizes when young people are
considered capable to take their own responsibility and give their ‘free and full consent’ to sex.
3
Article 2 of the Directive 2011/92/EU (combating the sexual abuse and sexual exploitation of
children and child pornography) defines ‘age of sexual consent’ as the age below which, in
accordance with national law, it is prohibited to engage in sexual activities with a child. This
definition captures one aspect of the concept of age of consent, that is, a prohibition to engage in
sexual activity with young children, including both female and male children. For sexually active
adults or older children, this means they should exclude children under the particular age limit
from the range of their bed partners, otherwise they will be held liable for committing a criminal
offence, putting them at risk of criminal prosecution and conviction.
The other aspect of sexual consent relates to the sexual autonomy of young children. From the
perspective of the children, as long as they are under the age of consent, they are considered
incompetent to give valid consent to sexual activities. This does not mean that they themselves
violate the law when engaging in sexual activity – criminal liability is only reserved for the older
party involved
4
– but it does mean that they have to reach a certain age boundary before they can
make their own legally valid decisions regarding sex with other people.
5
So the age of consent is
not only meant to deter an adult to have sex with children under a specific age, but it is also an
indication of children’s sexual autonomy.
Although the first law defining an age of sexual consent already came into force in 1275, in the
Statute of Westminster in England,
6
the widespread feeling of having to devise an age of consent is
a relatively new development, on ly spanning the past 200–300 years.
7
According to Stephen
Robertson’s research, by 1880, many Western nations had established an age of consent, typically
setting that age at 12 or 13 years.
8
At this moment, all jurisdictions on the European continent have
their own age of consent legislation. A 1997 study that compared the national consent provisions,
however, revealed that there are wide discrepancies as to the actual age at which a child is
considered old enough to have sexual relations, ranging from 12 in Vatican City to 18 in Turkey.
9
Yet other jurisdictions decided not to adopt one single age of consent – a single cut-off point after
which all sexual acts were allowed – but to take a gradual approach instead, classifying different
ages of consent for different sexual behaviours and contexts. In these countries, children are, for
instance, allowed to have vaginal sex at the age of 16 but have to wait until their 18th birthday to
have anal intercourse. It seems that the determination of the age of consent and the designation of
the range of protectees is heavily influenced by people’s ideas on the cognitive development of
children (Age of consent and childhood section) and also related to their thoughts on homosexual
(in)equality in matters pertaining to sexuality (Age of consent and homosexuality section).
10
Age of consent and childhood
The introduction of the age of consent is c losely related to the more generic construction of
childhood or the general demarcation between a child and an adult. Centuries ago, in Western
societies no distinct difference was made between the treatment of a child and an adult.
11
In fact,
Zhu and van der Aa 15
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