Minimum age of consent to rise from 13 years to 16

At the discretion of the court, no offense will deem to have been committed when the adult is “close in development or maturity” to the minor

The government is planning on raising the age of sexual consent in Spain, from its current level of 13 years of age to 16. This means that if an adult has sexual relations with a boy or a girl who is yet to reach the age of 16, the adult could be charged with crimes of “abuse.” The offense carries with it jail terms of up to six years in jail, even if there is consent. Those terms can rise to 12 years in cases of vaginal, anal or oral penetration.

The new legislation will include one exception: consenting sexual relations with an under-16 will not be a criminal offense “when the author is a person whose age is close to the victim due to their degree of development or maturity.” This apparently vague and generic definition will, it appears, be at the discretion of the judge.

These planned changes are included in the latest version of the draft reform of the penal code, which the Cabinet may approve this month. The legislation would then begin its passage through parliament, where the governing Popular Party currently has an absolute majority.

The inclusion of the minimum age of 16 was a last-minute amendment proposed by The Health Ministry. When the first draft of the reform was submitted by the Justice Ministry, and approved last October, the age was set at 15.

Spain currently has one of the lowest ages of consent in Europe. The United Nations has called on Spain to raise it from 13. In the majority of European countries it is higher, at 14, 15 or 16.

In 2009, under the Socialist government of Prime Minister José Luis Rodríguez Zapatero, all of the political parties agreed unanimously in Congress to raise the age of consent, although they did not agree on the final figure. While the government was in agreement with the legislative change, it never prospered.

The current justice minister, Alberto Ruiz-Gallardón, was responsible for setting the age at 15 in the first round of the draft reform. But in May of this year, Health Minister Ana Mato suggested 16 years of age. Mato also announced that the minimum age for marriage in Spain would be raised from 14 to 16, in a modification of the civil code.

The aforementioned prison sentences for offenses of underage sex will not be changed from the current legislation, which covers “abuse and sexual assault of minors.” What will change, however, is that no allowance will be made for the consent of a minor: any sexual relations with an under-16 will be punishable with a prison sentence.

But this still leaves several questions unanswered: could, for example, an 18-year-old man who has consensual sex with a girl of 15 be reported to the police for abuse by her parents, and sentenced to 12 years in jail? An article included in the new legislation would suggest that this is not the case. “Free consent of the minor would exclude penal responsibility for the offenses included in this section when the author is a person who is close to the victim in terms of age or development or maturity,” the article reads.

That means that if the sex was consensual and the difference in age is not very large, there would be no crime committed. But the decision on that difference would ultimately rest with a judge.

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