In what most, if not all Australians would consider incredulous, sophisticated France is considering doing something long ago adopted in other Western nations: setting an effective minimum age of consent for having sex.
Despite France’s “age of consent” of 15, it currently does not have any law which defines sex with someone below a fixed age as rape with prosecutors still having to prove sex was non-consensual to prove rape.
If there is no violence or coercion proved, people who have sex with someone under 15 may only be charged with sexual abuse of a minor and not rape – this has a maximum sentence of five years in prison and a fine of $A117,500.
Sentences are the same for sexual assaults of minors and non-minors, but punishments for rape have much harsher sentences.
This is compared to Australia where age of consent laws effectively determine that children and young people below the age of consent, are yet to reach a level of general maturity enabling their safe participation in sexual activities.
In relation to sexual abuse charges in each state and territory, the key difference between child sexual assault and adult sexual assault is that adult sexual assault is based on the absence of sexual consent, whereas in child sexual assault, the issue of consent is superseded by age of consent laws.
A child may be willing to engage in sexual behaviour; however, as they do not have the decision-making capacity to give consent according to law, all sexual interactions between an adult and a person under the age of consent are considered abusive,
Although the legal age of consent throughout Australia is either 16 or 17 years of age, legislation in New South Wales, Victoria, Western Australia, South Australia and the Northern Territory makes it an offence for a person in a supervisory role to sexually engage with a person under their special care who is aged 16 or 17 years.
This includes teachers, foster parents, religious officials or spiritual leaders, medical practitioners, employers or a custodial officials, according to Child Family Community Australia (CFCA), an information exchange for professionals working with children, families and communities.
The age of consent in the Australian states and territories is 16 in the ACT, NSW, NT, Qld, Victoria and WA, and 17 in SA.
The new intensified push for an effective age of consent in France similar to other Western countries is a result of recent court cases where judges refused to prosecute men for having sex with minor children, some as young as 11, because there was no proof of coercion.
“We want the irrefutable presumption that a minor cannot agree to engage in sex with an adult,” said Catherine Brault, a lawyer who defends child victims in Paris.
As the law is written now it can be interpreted that “a girl can consent to a sexual relationship, but she cannot consent to groping,” said Brault. “This gap has been denounced for years and years.”
The new measure is among proposed legislation to curb “lecherous” behavior in France, part of the fallout from the sexual harassment scandals that have erupted in the United States and since spread around the world including France.
Justice Minister Nicole Belloubet has suggested a legal minimum age of 13 for sexual consent. Other French leaders have called for an age of 15.
France’s Equity Minister Marlene Schiappa said her government was debating a defined age for irrefutable non-consent, between 13 and 15, as part of a new anti-sexism and sexual violence bill to be introduced in 2018.
For Fatima-Ezzahra Benomar, spokeswoman for the feminist association Les Effronté-e-s (The Shameless), establishing an age of consent has been a long, uphill battle.
“French people are only discovering now that today’s law allows 11-year-old girls to consent to sexual intercourse with men,” she said. “We’ve been asking for this minimum age (of consent) for a long time. At 11, you can imagine that you have no clue what is actually happening to you.”
A public prosecutor said that a 30-year-old man had been acquitted of rape after having sex with an 11-year-old girl in Seine-et-Marne in 2009 when he was 22.
The girl’s family reportedly only found out about the incident after the girl became pregnant. Her child is now seven and is reportedly in foster care.
Local reports said the man’s defence was that the girl had lied about her age to him. Because there was no evidence of “threat or violence” a criminal court ruled that the man could not be charged with raping her.
It closely resembles a case in September last year which also prompted calls to change the law.
A 28-year-old man was acquitted when he was tried for having sex with an 11-year-old girl from Val-d’Oise, north of Paris.
She reportedly followed the man home from a park, but prosecutors said there had been “no violence, no constraint, no threat, and no surprise” to constitute a rape charge – the court therefore ruled she had consented.
Age limits vary around the world, and exist to protect people who are not yet legally or emotionally competent to consent to sexual intercourse.
There is no official global limit for the age of consent but it tends be about 16, and the UN’s Human Rights body encourages countries to protect children from sexual exploitation.
In the US, the age of sexual consent varies by state but is between 16 and 18 years old. There are however “close in age exemptions” (so-called Romeo and Juliet laws) to allow for small age gaps in consenting sexual relationships, to protect people from being labelled as sex offenders where one party is slightly underage.
However, because of some legal loopholes, people below these ages still get married. An estimated 200,000 minors were married in the United States from 2000 to 2015.
Child marriage and laws that require people to marry their rapists can circumvent legal age consent limitations in national laws.
In the UK the age of sexual consent is 16, but children under the age of 13 have additional legal protections that declare they can never consent to sexual activity.
Other European countries like Germany and Portugal have a lower age of consent at 14.