Sexual and lewd acts involving minors : suggested amendments to the criminal code

Abstract

Sexual acts involving minors are outlawed in almost every state worldwide, with very few exceptions. Sexual crimes, especially where they concern individuals who are not yet of age, are considered as abhorrent and are generally accompanied by severe criminal penalties, including in some jurisdictions, life imprisonment or capital punishment. The legal interest which legislators sought to protect over the years was the honour of families and morals. The Italian and French regimes have however progressively moved away from this approach and given an individualistic approach to these offences, to now largely focus on safeguarding the minor’s sexuality. Maltese legislation and jurisprudence deal with defilement of minors mainly through article 203 of the Criminal Code. The crux of the offence of defilement of minors lies in determining the material element of the offence, that is, the lewd act. Simultaneously, an array of new laws has been introduced, largely spurred on by transnational legislation. This thesis will analyse the relative laws pertaining to the subject, through a comparative study of the Italian and French legal systems. This thesis also examines the issue of the age of consent and the laws relating thereto, and whether the age of consent in Malta is outdated. This issue was brought up during a parliamentary debate in April 2010, where it was argued that a balance should be struck between the stringent laws protecting minors against sexual abuse “while avoiding unnecessary witch-hunts”. The argument for the relaxing of the age of consent is typically focused on protecting older sex partners, who can be aggressively prosecuted for having sex with (sometimes, only slightly) younger people.