Johanna Westeson - The ICHRP

material on the internet blurring, one may wonder what the criteria for images produced
and possessed solely for private use will be. How will they be applied if the young person
produces images privately and then posts them on a site that can be publicly accessed? Or
if he or she sends them voluntarily to an older person, whose possession of such images is
not protected? These are only a couple of examples illustrating why this exceptional
provision, while recognizing the legitimacy of sexual autonomy of youth, can encounter
significant complications when applied in practice.
4. Domestic legislation and case law
Age of consent is generally regulated by criminal law provisions, establishing under what
age engaging sexually with children will be considered a crime. Exercising sexual
activities with a child under that age is equated to rape, regardless of whether force,
violence, or coercion was employed. Punishment for statutory rape may be lower than
punishment ascribed for other kinds of rape, depending on the circumstances in the case. In
addition to statutory rape provisions, several countries in the region also have provisions
that penalize sexual activities with teenagers who have just reached the age of consent and
who may be in a particularly vulnerable situation due to coercion, dependency or other
circumstances that threaten the sexual self-determination of the young person. 235
Legal age of consent vary strongly in the region, from 13 years in Spain 236 to 18 years in
Turkey 237 and Malta. 238 Most European countries have now the same legal age of consent
for same-sex and opposite-sex acts. Exceptions include Greece, where the general (and
apparently gender-neutral) age of consent is 15, 239 but where another article establishes
that “[s]odomy committed by an adult through the seduction of a person under seventeen
(17) years of age, or for financial gain, shall be punished with imprisonment of at least
three (3) months.” 240 This implies that so-called sodomy, or sex between men, will be
illegal if one party is under the age of 17. It is, however, not clear from the legal text
whether ‘seduction’ merely implies sexual contact, or if an element of coercion or abuse of
power has to be present in order for criminal liability to arise.
In Portugal, age of consent was equalized to be the same for same-sex and opposite-sex
couples in 2007, after sexual orientation was included as a banned ground for
discrimination in the Portuguese Constitution in 2004. The age of consent in Portugal is
14. 241
The Penal Code 242 of Italy establishes different ages of consent, not depending on whether
the parties are of same or of opposite sex, but related to power dynamics and age
235 See further Section 5B.2: Sexual violence and exploitation of children.
236 Article 181, Spanish Criminal Code. According to Article 183, sexual abuse by the use of deception with a
minor between 13 and 16 will render punishment.
237 Articles 103 and 104 Turkish Penal Code; sexual contact without the use of force with a minor between 15
and 18 is illgal but renders lower sentence than with “sexual attempt against children who are under the age
of fifteen.”
238 Article 203, Maltese Criminal Code.
239 Article 339, Greek Criminal Code, information from website with legislation of INTERPOL member
states on sexual offences against children, updated April 2006, available at
http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/csaGreece.asp. Last visited on 11
December 2009.
240 Article 347, Greek Criminal Code, ibid.
241 Articles 171-173 Portuguese Criminal Code.
242 Italian Penal Code (1930), as amended. Only available in Italian.
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