Ages of consent in South America


Ages of consent in South America

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. Also the only country in South America where male same-sex sexual conduct is still illegal is in Guyana and a higher age of consent for same-sexual relations is Chile and Suriname.

Introduction

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

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. Although sexual acts are generally legal with those 13 and over [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#17 (Argentine Penal Code, Article 119 - in Spanish)] , the following restrictions apply in certain circumstances.

Restrictions apply for sex with adolescents between the ages of 13 and 16 [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#17 (Argentine Penal Code, Article 120)] . Charges can only be brought after a complaint by the minor, their parent or guardian - [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#12 (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:

* creates an abusive situation of sexual submission severely "outrageous" to the minor, either continuously or for its circumstances [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#17 (Article 120 combined with Article 119, 2nd paragraph)] ;

* or when any type of sex ("acceso carnal") is obtained by the means of violence, threat, abusive coercion, or harassment in a relationship of dependence, authority or power, or by taking advantage of the fact that the minor, for any reason, couldn’t freely give consent - [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#17 (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 - [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#17 (Argentine Penal Code Article 125 - in Spanish)] . 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 [http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm#17 (Argentine Penal Code - Article 119, 4th paragraph, section “f” - in Spanish)] .

Bolivia

The age of consent in Bolivia is set at puberty regardless of gender and/or sexual orientation, according to Article 308 of the [http://www.unifr.ch/derechopenal/legislacion/bo/cp_bolivia5.pdf 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.

Brazil

The age of consent in Brazil is 14 (see [http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del2848compilado.htm Brazilian Penal Code (in Portuguese)] , article 224, “a”) - Regardless of gender and/or sexual orientation. Sexual acts with those 14 and older is possible although charges can be brought for “corruption of minors” between the ages of 14 and 18. Such charges, however, can only be brought after a complaint by the minor or by a parent (article 225 of the [http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del2848compilado.htm Penal Code] ).

Sex with minors below the age of 14 is the equivalent of statutory rape and is punished with higher penalties. Formally, charges in this case can also only be brought after a complaint by a parent. Nevertheless, since the approval of the Code of Minors in 1990 (called the [http://www.planalto.gov.br/ccivil_03/Leis/L8069Compilado.htm Child and Adolescent Statute] - see text in Portuguese) authorities bring cases to Justice based on the legal definition of child (anyone below 12) included in the Statute (article 2nd). Charges of sex with adolescents (anyone between 12 and 17) remain under parental initiative.

As an exception, the State can prosecute the offender when the minor is at any age below 18, but only when the family of the minor is so poor that they can’t afford a lawsuit (Penal Code, article 225, I) or when the offender is the father, mother, stepfather, stepmother or legal guardian of the minor (Penal Code, article 225, II) .

The prostitution of minors is punished by law and is prosecuted by the State (see [http://www.planalto.gov.br/ccivil_03/Leis/L8069Compilado.htm Code of Minors] , article 244-A – in Portuguese).

The law makes no distinctions between sexual orientation cases, However, below the age of 14 the name of the crime changes in homosexual cases from statutory rape (Penal Code, article 213) to "violent indecent assault" (article 214), with the same penalties.

In any case, only individuals over 18 can be legally charged.

History

The present age of consent laws are valid since 1940. On March 2005, the crime of seduction of minors was abolished by the Brazilian Congress. It was applicable only when the victim was a virgin woman between 14 and 18 and was cumulative with corruption of minors (which still exists). In this same occasion, Congress approved the end of two former legal exceptions, by which all charges would be lifted if the offender and the minor wanted to marry, or if the minor married to someone else and didn't manifest intention for sixty days of continuing with the lawsuit.

Chile

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 [http://64.233.161.104/search?q=cache:CJ7IoaFLCE0J:www.bcn.cl/publicadores/pub_leyes_mas_soli/admin/ver_archivo_codigos.php%3Fid_codigo%3D4%26file%3D1+c%C3%B3digo+penal&hl=es&gl=cl&ct=clnk&cd=3 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 only be brought after a complaint by the minor, their parent or guardian or legal representative. Nevertheless, if the offended party cannot freely file the complaint and if he or she 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

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

The age of consent in Colombia is 14 regardless of gender and/or sexual orientation, according to [http://www.unifr.ch/derechopenal/legislacion/co/l2t4c1-4.htm Article 208] of the Colombian Penal Code, Law 599 of 2000 ( [http://www.unifr.ch/derechopenal/ley.htm source] ), which reads: "“Article 208 – Abusive 'carnal access' of minors under 14 – He who has carnal access with a person under 14 years old, will be placed in prison for 4 (four) to 8 (eight) years”". The definition of “carnal access” ("acceso carnal") is later given in Article 212, and refers basically to vaginal, anal or oral sex, but also includes the penetration of the vagina or of the anus by another part of the human body or by an object.

Additionally, Article 209 refers to sexual acts with minors under 14, "other than" the aforementioned "carnal access", and to sexual acts witnessed by this minor as well. Finally, it covers also the act of someone inducing this minor to sexual practices. The penalty foreseen by this article is 3 to 5 years in prison.

Article 211 details circumstances in which penalties are aggravated, from one third to one half of extra time in prison, for any of the previous articles: (a) if there are multiple offenders; (b) if the offender is in position of authority over the victim or takes advantage of a condition of trust; (c) if a sexually transmitted disease is transmitted; (d) if the victim is under 12; (e) if the offender is husband or wife of the victim, or if they live together, or if the offender and the victim had a son or daughter together; (f) if the act results in pregnancy.

Ecuador

The age of consent in Ecuador is 14 regardless of gender and/or sexual orientation, as defined by the [http://www.dlh.lahora.com.ec/paginas/judicial/PAGINAS/Codpenal.3.html#anchor1136881 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.

There is also a clause about corruption of minors ( [http://www.dlh.lahora.com.ec/paginas/judicial/PAGINAS/Codpenal.3.html#anchor1136881 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.

Moreover, the [http://www.dlh.lahora.com.ec/paginas/judicial/PAGINAS/Cod.Ninez.Adolescencia.htm#anchor84373 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.

Guyana

Currently the age of consent in Guyana is 13 for lesbian females and heterosexual males and females, however legislation to raise the age to 16 is [http://www.gina.gov.gy/archive/daily/b050601.html#8 under discussion] . 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” [http://typo3.lsvd.de/fileadmin/pics/Dokumente/Homosexualitaet/With_the_government_in_our_bedrooms_-_November_2006.pdf] .

Paraguay

The general age of consent in Paraguay is 14 regardless of gender and/or sexual orientation Fact|date=December 2007. The age of consent for extramarital intercourse with married female adolescents is 16 (see below).

Article 135 of the [http://www.leyes.com.py/rubros/constitucion_codigos_convenios/codigos/codigo_penal/Libro2/II_tituloI.html Paraguayan Penal Code] , which covers the sexual abuse of minors, 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 two to ten years in prison (4th clause). When the offender is under 18, accusations may be lifted (6th clause).

Marriage and adultery

There is also a further crime called "estupro" (Article 137), which is defined as “extramarital sex” (adultery) practiced with 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.

[http://www.leyes.com.py/rubros/constitucion_codigos_convenios/codigos/codigo_penal/Libro2/II_tituloI.html 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.”

On the other side, the [http://www.avert.org/aofconsent.htm 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

The age of consent in Peru is 14 regardless of gender and/or sexual orientation, according to Article 173 of the [http://www.unifr.ch/derechopenal/legislacion/pe/cpperu5.htm Peruvian Penal Code (in Spanish)] . This article says that the sexual acts as well as “other similar” are punished differently depending on the age of the victim – life sentence when the victim is under 7, from 25 to 30 years of prison when the victim is between 7 and 10, and from 20 to 25 years of prison when the victim is between 10 and 14. When the offender is in position of “particular authority” or trust over the victim, including parental bonds, the minimum term is 30 years of prison for victims between 7 and 14.

There is also a crime called seduction ("seducción") in the Article 175, applied for sexual acts (or other similar) obtained by the means of deceit, with teenagers between 14 and 18. The maximum term is 3 years of prison, which may be replaced – at the discretion of the judge – with community service from 30 to 78 days.

A further crime called “indecent assault to the minor” ("atentado al pudor del menor") is foreseen in Article 176-A, and applies only for situations in which the offender performs an act “contrary to decency” in a person under 14 without having the intention of practicing a sexual act or other similar. This crime is punished with 4 to 6 years of prison.

Finally, article 178 establishes a different provision – if any of these offenses result in pregnancy, the offender is additionally condemned to provide food for the victim’s baby. Therapeutical treatment is also foreseen in article 178-A – after medical examination – for all sexual offenders in order to facilitate his social readaptation. And article 184 provides equal punishment for any accomplices of any of these crimes who are in position of authority, charge or trust over the minor, including their parents, brother or sister.

uriname

The age of consent in Suriname is 16 for heterosexual boys and girlsFact|date=August 2007 and for all same-sex sexual relations the age of consent is 18 under section 302, even though section 302 is hardly ever enforced. Fact|date=August 2007

See also:
* LGBT rights in Suriname

Further reading:
* [http://www.gaytimes.co.uk/gt/listings.asp?CID=900&action=ShowCountry gaytimes.co.uk listing for Suriname]

Uruguay

The age of consent in Uruguay stands at 15 regardless of gender and/or sexual orientation - [ [http://www.parlamento.gub.uy/Codigos/CodigoPenal/l2t10.htm Uruguayan Penal Code Articles 272 and 267] ] .

Between the ages of 12 and 15, there is an intermediary status where violence is legally presumed until otherwise proven [(see [http://www.parlamento.gub.uy/Codigos/CodigoPenal/l2t10.htm article 272, “1”] of the Penal Code) ] . 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 - [ [http://www.parlamento.gub.uy/Codigos/CodigoPenal/l2t10.htm Uruguayan Penal Code Article 274] ] . For ages over 15, however, a lawsuit can only be initiated by a minor or their parents, except when the minor has no parents or legal guardian; or where the accusation is brought against a parent or legal guardian [ (see [http://www.parlamento.gub.uy/Codigos/CodigoPenal/l2t10.htm article 279] of the Penal Code) ] .

Venezuela

The age of consent in Venezuela stands at 16 regardless of gender and/or sexual orientation.

ee also

*Ages of consent
*Ages of consent in Africa
*Ages of consent in Asia
*Ages of consent in Australia and Oceania
*Ages of consent in Europe
*Ages of consent in North America
*Ages of consent in Central America

Literature

* http://www.unifr.ch/derechopenal/ley.htm - This address shows a list organized by the University of Freibourg in Switzerland, presenting links to the Penal Codes and criminal legislation of 29 countries, mostly Latin American and European countries. The list comprises all South American countries, except for Guyana and Suriname.

References


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