- Consider the age gap than the fixed age of consent when prosecuting cases & in mitigating punishments to close-age male partners
Since adolescent females are more vulnerable to sexual victimisation when the age gap between the partners increases, the consideration of this age gap is more justifiable than the fixed age of consent when prosecuting cases of the sexual assault of adolescent females while it is also important in mitigating the punishments meted out to close age male partners.
These findings and recommendations were made in a research article on ‘A prospective study on the sexual victimisation of adolescent females by romantic partners and the relationship to the age gap between the partners’ which was authored by R.M.S.B. Gunasekara and A.N. Vadysinghe (both attached to the Peradeniya University's Medical Faculty's Forensic Medicine Department), and M. Sivasubramanian (attached to the Kandy National Teaching Hospital's Judicial Medical Officer's Office) and A.M.R.M. Attanayake (attached to the same Faculty's Nuclear Medicine Unit) and published in the Sri Lanka Journal of Forensic Medicine, Science and Law's 14th Volume's First Issue in June of last year (2023).
Adolescence is the physical and psychological transitional stage where a child becomes an adult, occurring from puberty to legal adulthood. Among girls, per A.D. Rogol, J.N. Roemmich and P.A. Clark's ‘Growth at puberty’, the first signs of puberty emerge as early as eight to 13 years, with an average of 11 years. The age of puberty of a male with spermatogenesis (the process by which sperm cell production occurs) ranges from 13.5 to 13.7 years. However, the onset of legal adulthood is considered as 18 years in accordance with the Age of Majority (Amendment) Act, No. 17 of 1989. With the rapid psychological and physical changes occurring during this period, they, as observed in J. Pringle, K.L. Mills, J. McAteer, R. Jepson, E. Hogg and N. Anand's ‘The physiology of adolescent sexual behaviour: A systematic review’, tend to have romantic relationships with heterosexual partners, and experience and explore sexual feelings. However, A.S. Madkour, T. Farhat, C.T. Halpern, E. Godeau and S.N. Gabhainn's ‘Early adolescent sexual initiation and physical and psychological symptoms: A comparative analysis of five nations’ opines that involvement in sexual relations at lower ages should be averted, because it may end up with grave life-long negative outcomes physically, psychologically, and culturally, such as teenage pregnancy, sexually transmitted diseases, long-term gynaecological complications and several psychiatric illnesses. Strategies adopted to minimise sexual relations at lower ages are focused on the elimination of risk factors with proper sexual and reproductive health education. Another effective strategy is the enforcement of the law against the perpetrator.
According to the jurisdiction of a country, a sexual relationship with a female below a certain defined age is considered a crime, irrespective of the female partner’s consent or willingness. The minimum age for consent for sexual relationships varies from country to country. S. Petroni, M. Das and S.M. Sawyer's ‘Protection versus rights: Age of marriage versus age of sexual consent’ elaborates that certain countries consider the age as 16 years, while others set it at somewhere between 11 and 21 years based on the presumption that under this age, the female does not have the capacity to give valid consent.
In terms of Section 363(e) of the Penal Code, sexual intercourse with a female less than 16 years is considered rape, irrespective of her consent. The punishment is specified in Section 364 (1) as a term of imprisonment not less than seven years and not exceeding 20 years. However, according to Section 365(2)(b), if the perpetrator is less than 18 years, and intercourse has been with the consent of a person under 16 years, the court may impose a sentence of less than seven years, per the Penal Code (Amendment) Act, No. 22 of 1993.
According to data from the Police Department's ‘Crime statistics’, 1,977 rape cases have been reported during 2021 and out of that, 1,377 cases (70%) were statutory rapes which had happened with the consent of the female partner.
However, law enforcement authorities must, as mentioned in M. Oberman's ‘Regulating consensual sex with minors: Defining a role for statutory rape’, investigate and prosecute all alleged consensual statutory rapes as sexual offences, irrespective of the romantic relationship and emotional intimacy between the couple. The main purpose of the law against statutory rape is, as A. Arkadas-Thibert's ‘Article 34: The right to protection from all forms of sexual exploitation and sexual abuse’ puts it, to protect children from sexual exploitation by adults. To overcome this kind of prosecution, certain countries have amended their laws regarding statutory rape. A Kenyan study and N. Kanbur's ‘Close in age exemption laws: Focusing on the best interests of children and adolescents’ note that certain countries have proposed to lower the age of consent while some have introduced special provisions known as the ‘close in age exemption’ or the ‘Romeo and Juliet (a reference to the archetypal young lovers in British playwright William Shakespeare's play of the titular name) exemption’.
The close in age exemption prevents the sexual act that occurred between individuals with a few years difference of age from being considered a criminal offence. The law applies only when: 1) the female has reached a certain age, which can vary from country to country and range from 14 to 16 years, 2) with a narrow age difference between the couple, ranging from two to four years, and 3) the act being consensual. There are scientific justifications for the close in age exemption because B.A. Oudekerk, L.A. Guarnera and N.D. Reppucci's ‘Older opposite sex romantic partners, sexual risk, and victimisation in adolescence’ revealed that wider age gaps cause more sexual victimisation with higher unwanted sexual behaviours (without the willingness of the female partner), and the lesser use of protection against pregnancy and sexually transmitted infections (STIs). The Law Commission's ‘Explanatory note on the sentencing policy with regard to statutory rape and matters connected thereto’ discussed the application of the close in age exemption to Sri Lanka in 2014 but has not yet recommended the same for application.
Methodology
Gunasekara et al. chose the National Teaching Hospital, Kandy, which is the main referral Hospital for medico-legal opinions on and the treatment of victims of sexual violence in the Kandy District. The study population was 12 to 16-year-old females who were referred to the Hospital for medico-legal opinion with a history of sexual assault. Only the victims who verbally confirmed that the alleged accusers were their boyfriends or lovers were selected. As the study was based on the history given by the victim, victims diagnosed with psychiatric illnesses and mentally retarded individuals were excluded. Those cases where the clinical forensic examination findings were incompatible with the given history were excluded. Data collection was done from April 2019 to the end of February 2020. The participants were examined for medico-legal purposes by forensic practitioners attached to the Hospital who took the sole responsibility for the examination and reporting to the Police and the courts. During the study period, 63 victims were interviewed.
Results
In the study population, all the males were older than their female partners. The age gaps of the couples ranged from 1.8 to 17.7 years, with a mean of 9.5 years. This study population was divided into three groups according to the age gap between the female and their male partner. The close age gap was zero to 5.9 years, the intermediate age gap was six to 11.9 years, and the advanced age gap was 12 to 18 years. There were 14/22% females in the zero to 5.9 years category, 31/49% in the six to 11.9 years category, and 18/29% in the 12 to 18 years category.
When analysing the most serious sexual assault among the study subjects, alleged peno-vaginal intercourse had the highest frequency (26/41%) followed by alleged intercrural intercourse (non-penetrative sex in which the penis is placed between the receiving partner's thighs and friction is generated via thrusting). Peno-vaginal intercourse was considered as the most serious due to having a risk of pregnancy as well as the transmission of STIs. Anal or oral penetration/fellatio was considered the second-most serious assault, due to carrying a risk of transmitting STIs. Intercrural penetration was considered the next serious assault and the other sexual offences including fondling and kissing were considered as the least serious.
In the zero to 5.9 years age category, six/43% females stated that their male partner asked about their willingness for the sexual act prior to the incident. It was 16/51% in the six to 11.9 years age category and four/22% in the 12 to 18 years age category.
In the zero to 5.9 years age category, 10/71% of the females engaged in sexual relations willingly while it was 14/45% in the six to 11.9 years age category and eight/44% in the 12 to 18 years age category.
In the zero to 5.9 years age category, three/75% females had allowed the alleged act due to the fear of losing the relationship. However, only 41% and 40% had allowed the alleged act due to the fear of losing the relationship, in the six to 11.9 years and the 12 to 18 years age categories, respectively. In the latter two age categories, females had allowed the alleged sexual act to proceed due to death threats made by the male partner against the victim or her family members or threats of revealing personal material (photos and messages) to the public. However, this was not observed in the zero to 5.9 years age category. Only one case was observed in the six to 11.9 years age category where the male partner had intoxicated her prior to the act.
All females who had used protection (12) were victims of alleged peno-vaginal intercourse. In 58% of the cases, the male partner had used condoms. A total of 33% of the females had used emergency contraceptive pills and 8% had used oral contraceptive pills. It was observed that 54% of the victims of peno-vaginal intercourse had not used any form of protection.
In the zero to 5.9 years age category, 71% of the females had used some form of protection, whereas it was 38% in the six to 11.9 years age category, and only 33% in the 12 to 18 years age category.
In the zero to 5.9 years age category, seven/50% females had alleged sexual relations one year from the onset of the romantic relationship while it was 10/32% in the six to 11.9 years age category, and two/11% in the 12 to 18 years age category. Further, within a month of the courtship, 55% of the females in the 12 to 18 years age category had engaged in sexual activity while it was 32% in the six to 11.9 years age category and 21% in the zero to 5.9 years age category. In the zero to 5.9 years age category, one/7% of the females had alleged sexual relations during the first week after the onset of the romantic relationship and it was three/10% in the six to 11.9 years age category and two/11% in the 12 to 18 years age category.
In the zero to 5.9 years and six to 11.9 years age categories, all the females had physically met their partners previously at least once prior to the sexual act. In the 12 to 18 years age category, 11% of the females had sexual relations with their partners on their first physical encounter.
In the zero to 5.9 years, and 12 to 18 years age categories, all females have communicated with the male partners using phones, the social media or other methods (letters and messages through friends) before the alleged offence. In the six to 11.9 years age category, 97% had communicated with the alleged partner before the alleged sexual act.
A history of elopement was given by 57%, 52% and 17% in the zero to 5.9 years, six to 11.9 years, and 12 to 18 years, age categories, respectively.
Discussion
The study identified 63 female victims aged between 12.6 to 15.8 years. The mean age of the victims was 14 years. It was observed that the number of victimised females increased with advancing age (6% of the victims were in the 12 to 12.9 years age group and 51% of the victims were in the 15 to 16 years age group). The average age of the alleged perpetrators was 24 years in the instant study with 59% being between the ages of 22 to 29.9 years.
The age gap between the couples in the current study population ranged from 1.8 to 17.7 years, with a mean of 9.5 years. In addition, 78% of the alleged male partners were at least six years older than their female partners. J.G. Higginson's ‘Defining, excusing, and justifying deviance: Teen mothers' accounts for statutory rape’ claimed that older male partners were sought with the belief that they can provide financial security, and emotional stability and possess greater sexual knowledge, experience and/or other resources compared to younger men.
The study revealed that the percentage of alleged peno-vaginal intercourse was the highest (50%) in the zero to 5.9 years age category, with a reduction in the frequency with the increasing age gap (42% in the six to 11.9 years age category and 33% in the 12 to 18 years age category). However, D.M. Bierie and K.M. Budd's ‘Romeo, Juliet, and statutory rape’ revealed that with the increasing age gap between the victim and the offender, the odds of a statutory rape incident increased. Similarly, Oudekerk et al. revealed that the wider the age gap between the partners, the more likely that they were to engage in sex. Further, C. Barter, M. McCarry, D. Berridge and K. Evans's ‘Partner exploitation and violence in teenage intimate relationships’ showed the same pattern where the incidence of female victimisation increased with advancing age. A decreasing percentage of peno-vaginal intercourse with an increasing age gap was demonstrated in the present study.
However, the percentage of couples engaging in sexual relations with penile penetration (peno-vaginal intercourse, anal, oral, inter-crural, uncertain whether inter-crural or vaginal) increased with the increasing age gap. That there is “more sexual victimisation with an increasing age gap” was described in N.D. Reppucci, B. Oudekerk, L. Guarnera, A. Nagel, C. Reitz-Krueger, T. Walker and T. Warner's ‘Risky relationships and teen dating violence among at-risk adolescents’. This is further supported by Bierie et al.'s finding of increased sexual aggression related incidents with the increasing age difference. Also, the percentage of the least serious sexual assaults such as fondling was observed to be higher in the close age gap group (29%) compared to the advanced age gap group (6%). This again indicates that victimisation is less when the age gap is less.
These results revealed that only 22% of the male partners have verbally asked about the willingness of the female partner to have sexual relationships in the 12 to 18 years age category. However, a relatively high percentage of male partners in both the zero to 5.9 years and six to 11.9 years age categories (43% and 51%, respectively) have asked about the female partner's willingness before the act. However, these results indicate less consideration of the female partner’s willingness in the advanced age gap group.
The results revealed that most females (71%) in the zero to 5.9 years age category have engaged in sexual relations willingly, while it was a lower percentage (44%) in the 12 to 18 years age category. Bierie et al. proved that with the increasing age gap between victims and offenders, a higher incidence of statutory rape incidents has been noted involving forcible sex crimes. Reppucci et al. also described that wider age gaps were associated with a higher incidence of unwanted sexual behaviour.
The percentages of sexual acts done by physical force ranged from between 25% to 30% in all the three groups. However, obtaining consent by fear and intimidation was the highest (30%) in the 12 to 18 years age category and consenting due to the fear of losing the relationship was the highest (75%) in the zero to 5.9 years age category. The highest percentage of threats made by the male partner in the 12 to 18 years age category is compatible with the finding of a high frequency of sexual violence with the advancing age gap.
In this study population, the percentage of the use of contraception decreases with the increasing age gap.
This study revealed that within a month of courtship, sexual activity had occurred in 55% of the cases in the 12 to 18 years age category while it was 32% in the six to 11.9 years age category, and only 21% in the zero to 5.9 years age category. In the zero to 5.9 years age category, 50% of the females had alleged sexual relations more than one year from the onset of their romantic relationship, while it was only 11% in the 12 to 18 years age category. These findings suggest that couples with advanced age gaps were more likely to have sexual relationships in the early period of their romantic relations compared to couples with a close age gap.
The current situation has changed because of the freely available modern electronic communication methods, such as mobile phones and social media. A.N. Vadysinghe, D.P.P. Senasinghe, U. Attygalle, Y.M.G.I. Banda and R.S. Ramanayake's ‘A study on the modes of communication in cases of sexual assault’ revealed that only 44% (out of 62 victims of sexual assault) had direct verbal communication with the assailant. Mobile phones were used in combination with other forms of communication in 47% of the cases, whereas only mobile phones were used as the method of communication by 16%. Only 3% had communicated with letters.
The results showed that 11% of the couples in the 12 to 18 years age category had sexual relationships in their first meeting. However, none of the females in the zero to 5.9 years, and six to 11.9 years age categories had engaged in sexual relationships on their first meeting. In addition, no females had met their male partner more than four times per week in the advanced age gap group. However, in the zero to 5.9 years age category, 5% of the females had met their partners more than four times per week. These findings suggest a more intimate relationship in the close age gap group than the advanced age gap group.
A relatively high percentage of victims in the zero to 5.9 years age category (36%) had communicated less than two times per week. However, a relatively higher percentage of victims in the six to 11.9 years, and 12 to 18 years age categories (35% and 44%) had communicated one to two times per day. These findings indicate that couples with a wider age gap are more likely to communicate using phones and social media, while couples with a closer age gap are more likely to meet each other in person. This is further indicative of a higher level of intimacy in the close age gap group. In this study, most females in the zero to 5.9 years age category (57%) had sexual relations after eloping, whereas it was 52% in the six to 11.9 years age category. However, the majority of females in the 12 to 18 years age category had engaged in sexual relations without a history of eloping. S.M.H.M.K. Senanayake's "Reasons of female children to elope with boyfriends in the Anuradhapura District" revealed parental disapproval of the love affair (56%) as the commonest reason for eloping. This indicates that the partners who had eloped were more interested in having a long-term responsible relationship rather than the need for sexual exploitation (the Cambridge Dictionary's "Meaning of elope"). The elopement of a couple with an adolescent female requires raising awareness among the parents, the community as well as the Police regarding possible sexual relationships. Therefore, in the case of eloping, the male partner has to bear more responsibility, as there is a high possibility of being penalised by the legal authorities compared to those who had sexual relations without eloping. Therefore, it can be assumed that those who elope may be having a more intimate relationship.
Recommendation
Thus, the legal basis of the close in age exemption or Romeo and Juliet exemption applies to this study population.