Sexual abuse of adolescents

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Under sexual abuse of young people refers to sexual acts that one age of criminal responsibility person in a young person applies or can make to yourself that in the legal system of each country's criminal law can be pursued. In this article, according to the definition criterion of the UN General Assembly, persons who are at least 15 and at most 24 years old are classified as young people . For sexual acts involving people who are 14 years old or younger, see: Child Sexual Abuse .

Criteria for the criminal liability of such sexual acts are - depending on the legal situation - the age of the young person, the age difference between the perpetrator and the victim, the actual level of development of the young person and the type of relationship between the perpetrator and the victim. If there is a dependent relationship between the two, for example between teacher and student or guardian and ward, such sexual acts are more likely to constitute criminal offenses than if they are de facto consensual acts between love partners. Since consensual consent can be difficult to test in young people, many legal systems also provide for de facto consensual sexual acts to be criminalized as soon as young people are affected .

Criminal law aspects

European law

Particular attention should be paid to the sexual self-determination of young people. The European Court of Human Rights awarded a 17-year-old Austrian youth compensation for a violation of the European Convention on Human Rights , because he, who was always interested in older partners, from his 14th to his 18th birthday under the then valid § 209 Austrian Tax Code had been discouraged from entering into fulfilling intimate relationships that matched his inclination towards adult men.

Germany

Section 182 of the Criminal Code (StGB) was last amended on the basis of the law implementing the framework decision of the Council of the European Union to combat the sexual exploitation of children and child pornography of October 31, 2008 ( Federal Law Gazette I p. 2149 ). At the same time, the age of consent for the alternative offenses of the newly drafted Section 182 (1) StGB and the newly inserted Paragraph 2 was raised from 16 to 18 years. The minimum age of the perpetrator of 18 years, which was previously a condition for criminal liability, has been deleted with regard to the exploitation of a predicament (para. 1). Were newly added para. 2 (formerly in para. 1 included) and para. 4, which is now trying criminality orders. The changes took effect on November 5, 2008.

Section 182 (1) of the Criminal Code prohibits sexual acts with a young person under the age of 18 if the young person was induced to do so by exploiting a predicament. In paragraph 2, sexual acts by a person over the age of 18 against payment with a young person under the age of 18 are prohibited. Finally, in Paragraph 3, sexual acts by adults from 21 years of age with young people under 16 years of age are punishable if the adult person “exploits the victim's inability to sexually self-determine”. According to a decision by the Federal Court of Justice, the “lack of ability to sexual self-determination” cannot be derived solely from the age of the young person, but must be determined on a case-by-case basis. Sexual inexperience is not enough to determine the lack of ability for sexual self-determination.

The attempt is punishable. Paragraphs 1 and 2 are an official offense , paragraph 3 is designed as a (mixed) application offense. According to paragraph 6, the judge can waive the punishment in a given case if the injustice that happens to the “victim” is comparatively minor, taking into account his behavior.

The legal asset of the regulation is the sexual self-determination of young people.

§ 182 of the Criminal Code refers to both perpetrator and victim on side both sexes equally and replaced in 1994 with the 29th Criminal Law Amendment ancient §§ 182 and 175 of the Criminal Code and the gem in the field of new states by this time. Unification Treaty still applicable § 149 StGB-GDR ("simple abuse"). Section 182 of the old version of the Criminal Code (“seduction”) only concerned sexual intercourse between a man or male adolescent and a girl under the age of 16 as an offense. § 175 StGB initially concerned male-homosexual intercourse in general (“fornication with men”), later only intercourse between adult men (at least 18 years old) and male adolescents (under 18 years old) as a “homosexual act”.

If the victim is under 14 years of age and thus a child in the legal sense , it has not yet been conclusively clarified according to the case law of the Federal Court of Justice whether Section 182 StGB in addition to Section 176 StGB ( offense under Section 176 of the StGB ) by way of the Unity of act can intervene, or whether there is only "legal unity " .

Earlier, planned legislative changes

On August 26, 2006, the Federal Cabinet decided to change a number of laws to better protect young people from sexual exploitation. Among other things, the change also affected the raising of the age of consent in accordance with Section 182 (1) StGB. According to the draft of the federal government, anyone who engages in sexual acts with a person under the age of 18 for remuneration or taking advantage of a predicament should make himself a criminal offense. Until November 4, 2008, this age of consent was 16 years. In Section 182 (1) StGB, the lower age limit of 18 years for the criminal liability of the offender should also be omitted. This meant that a person from 14 years of age (criminal responsibility) could have been punished if they had committed sexual acts with another person under the age of 18, exploiting a predicament or for payment. Attempts to violate Section 182 of the Criminal Code should also be made a criminal offense. The final deliberation in the Bundestag planned for April 27, 2007 was removed from the agenda, as the Bundesrat had proposed a further tightening of the regulation. According to this, sexual acts with persons under the age of 18 should be punishable as abuse even if they did not take place for a monetary but “other” (immaterial) advantage. That would have meant that, for example, an investigation into sexual abuse could have been initiated against a 14- to 17-year-old adolescent if he had invited his girlfriend from the same age group to the cinema and the petting had ensued. This tightened draft was supported by the CDU / CSU and SPD parliamentary groups and was scheduled for a vote in the Bundestag on December 13, 2007. Youth associations, social scientists and the opposition parties FDP , Bündnis 90 / Die Grünen and Die Linke sharply criticized this criminalization of sexual acts among young people, known as the “petting paragraph”. The vote was removed from the agenda.

Austria

In Austria there was no corresponding standard until 2002. Rather, heterosexual and lesbian sexual contacts between adults (14 years of age and older) were completely legal, while Section 209 of the Criminal Code made “same-sex fornication” of an adult 14 to 17 year old “male person” a punishable offense. There were several parliamentary attempts to abolish this paragraph, the narrowest of which started in 1996 with a tie. It was not until June 21, 2002 that the Constitutional Court lifted this provision. As a result, there were initiatives on the part of right-wing organizations and parties to raise the general age of consent to 16 years, while the Federal Youth Council spoke out clearly against an increase. The ÖVP finally introduced Section 207b of the Criminal Code to the National Council, where it was passed with the votes of the black and blue government.

Section 207b of the German Criminal Code is based on the wording and content of Section 182 of the German Criminal Code, without being identical to it. In Austria, sexual acts with young people under the age of 18 are prohibited if they take advantage of a predicament or take advantage of their own superiority and the young person's immaturity. The direct induction of young people through remuneration, as well as sexual acts with third parties, is also prohibited. Enticing adolescents, with whom one is in a relationship of authority , to engage in sexual activity with another person falls under the offense of pimping (Section 212 of the Criminal Code).

When creating Section 207b of the Criminal Code, the legislature assumed that sexual self-determination is generally given at the age of 14 and that the new provision only covers cases in which this ability is exceptionally lacking or significantly restricted for special reasons. All cases of Section 207b of the Criminal Code have in common that they have situations in mind in which it is made impossible or made considerably more difficult for the young person to exercise his right to sexual self-determination in such a way that he (successfully) refuses sexual contact that he does not want . Section 207b of the Criminal Code is intended to cover situations in which certain constellations are exploited for sexual contacts, which the young person would otherwise not be willing to make. In the case of paragraph 3, for example, the offender must determine (induce) the juvenile the sexual act specifically through the remuneration (according to § 74 paragraph 1 no. Sexual contacts (also) wanted by adolescents should not be criminalized. Although the wording of the law does not mention this, the paragraph is aimed at adult offenders, not at the relationships between young people of different ages (in accordance with the age tolerance clause of §§ 206,207 abuse of minors with a small age difference).

Parliamentary inquiries from the time it came into force until at least 2004 show that some public prosecutor's offices often treat it as a substitute provision and that homosexual contacts are disproportionately persecuted. Again and again, court proceedings were initiated without there being any initial suspicion of a prohibited relationship in order to check whether a case under Section 207b of the Criminal Code could be fulfilled. Austria's child protection experts unanimously demanded in their report on the “National Action Plan (NAP) Children and Youth Rights” an evaluation of § 207b StGB after 5 years of its existence in order to determine whether this provision protects or restricts the right of young people to self-determination. And the 2004 Austria Report of the EU Network of Independent Experts on Fundamental Rights also criticizes the practice of some public prosecutor's offices of using mere intimate contacts as an opportunity to initiate prosecution.

United States of America

Criminal laws are passed at the state level in the United States . The legal situation regarding the sexual abuse of young people is therefore inconsistent within the country.

In general, people of age of consent cannot de iure consent to sexual acts . As a result, sexual acts with persons of age of consent can also be prosecuted if they are de facto consensual or in the context of a romantic relationship . In the case of sexual intercourse with persons of legal age, one speaks of statutory rape (literally: “ rape according to the law”). Other criminal offenses that can also affect the sexual abuse of young people are z. B. criminal sexual act ("criminal sexual act"), sexual misconduct ("sexual misconduct") and sexual abuse ("sexual abuse").

In some states, these offenses do not apply when the individuals involved are married. In some states there are further exceptions if the parties involved are in a romantic relationship and their age does not differ by more than a set number of years (“Romeo and Juliet laws”).

Individuals convicted of a sex offense in the United States are entered in the federal Sex Offender Registry and in corresponding state registers; this gives everyone access to information about the conviction. Most states also register minors.

Example New York

In the state of New York , according to article 130.05, paragraph 3a of the NY Penal Law article, persons under the age of 17 are de iure unable to consent to sexual acts, so that other persons may even then make themselves criminal by having sex with such persons if the sexual acts are de facto consensual and in the context of a love relationship. Sexual acts between married persons are excluded from this rule according to Article 130.10, Paragraph 4. Since since June 2017 people under the age of 17 have not received a marriage permit in New York, the latter only affects couples who have moved in or who have previously married; Before the law was changed, 14-year-olds were allowed to marry under certain conditions.

Social reality deviates significantly from the ideal on which this legal situation is based, according to which young people under the age of 17 should not have sex yet. In fact, according to a 2002 study, 45.7% of American women surveyed had their first sexual intercourse before they were 17 years old; for men it was even 49.2%.

Legal sex in New York requires both partners to be at least 17 years old. Adolescents are allowed to have consensual sex without penetration ( petting ) if the older partner is no more than 20 years, the younger is at least 15 years, and there is no more than 4 years of age difference between them. Sexual intercourse with genital, oral or anal penetration falls under the criminal offense of sexual misconduct if at least one of the partners is younger than 17 years , even with people of the same age. However, this criminal offense is primarily aimed at factual sexual attacks (e.g. at work), so that young people who have had consensual sex rarely come to court for this reason. The New York regulations in detail:

Sexual intercourse

Defendants aged 16 to 20

According to Article 130.20, Section 1 of the New York Penal Law , any person who has sexual intercourse with a person who does not consent to this sexual intercourse (or who can not de iure consent because he is not yet 17 years old) is liable to prosecution . Persons under the age of 16 can not be held responsible for this offense due to Article 30 ( Defense of Infancy ). However, a 16-year-old is fully responsible for sexual misconduct and can even be punished if his “victim” is several months older than himself; 16-year-olds can even commit mutual sexual misconduct towards one another through de facto consensual sexual intercourse .

Sexual misconduct can be punished with sentences of up to 1 year in prison.

The New York appellate courts mostly deal with sexual misconduct in cases in which the sexual intercourse took place de facto against the will of the victim. More often, cases of sexual acts between lovers are tried in smaller, local courts:

  • In 1995, a young man was charged in the Justice Court of Village of Fleischmanns (in Fleischmanns, Delaware County ) after sleeping with his 15-year-old girlfriend when he was 16. The court granted his impunity motion.
  • In 2004 Mount Vernon City Court heard the case of a man who, at the age of 17, slept with his 15-year-old girlfriend. His motion for impunity was rejected by the court.

Defendants aged 21 or over

According to Article 130.25, Paragraph 2, a person who is 21 years of age or older and who has sexual intercourse with a person who is not yet 17 years old ( rape in the third degree ) is liable to prosecution . According to Article 130.40, Paragraph 2, oral and anal sex are also punishable under the same conditions ( Criminal sexual act in the third degree ).

Other sexual acts

According to Article 130.55, any person who engages in sexual acts with a person unable to consent ( sexual abuse in the third degree ) is liable to prosecution . This case remains unpunished if the following three conditions are met at the same time: 1. the age of consent (i.e. that the partner is younger than 17 years) is the only reason for the partner's inability to consent; 2. the partner is older than 14 years; 3. the partner is no more than 4 years younger than the accused.

Sentence, Jurisdiction and Registration

Rape (also statutory rape ) and criminal sexual acts are prosecuted as crimes ( felony ) in New York , sexual misconduct and sexual abuse as offenses ( misdemeanor ). Since 2017, criminal proceedings against persons under the age of 18 for sexual misconduct or sexual abuse have to be heard in family courts. Before that, young people were often tried in courts where adults are also tried. Individuals convicted of sex offenses in New York will be entered into the New York State Sex Offender Registry under the Sex Offender Registration Act, which has been in place since 2011 ; This does not apply to juveniles if their criminal act is classified as an offense (not a crime).

literature

Individual evidence

  1. ^ The United Nations Program on Youth. Retrieved November 3, 2017 .
  2. ↑ ECHR ( memento of March 17, 2003 in the Internet Archive ): SL vs. Austria , appl. 45330/99, judg. January 9, 2003, par. 49, 52
  3. ^ BGH, decision of January 23, 1996 , Az. 1 StR 481/95, full text = BGHSt 42, 27.
  4. ^ BGH, judgment of April 16, 2008 , Az. 5 StR 6/08, full text.
  5. ↑ BGH, decision of December 22, 2000 , Az. 3 StR 323/00, full text.
  6. ↑ BMJ ( Memento of November 12, 2006 in the Internet Archive ) of September 25, 2006.
  7. ↑ GESTA 16 / C076 (PDF; 140 kB), German Bundestag, June 29, 2007.
  8. ↑ Hearing child pornography. German Bundestag, June 29, 2007 (Memento of the original from July 17, 2007 in the Internet Archive ).
  9. ^ Amendment to the law, dispute over the petting paragraph , Stern, accessed February 21, 2008.
  10. ↑ Sexual Criminal Law: For the time being no "Petting Paragraph , Die Zeit, accessed February 21, 2008.
  11. ^ Decision text G6 / 02. Constitutional Court, accessed May 22, 2014 .
  12. ↑ Press releases of the Familienbund: Age of consent for young people has to level off at 16 years , June 25, 2002, and the Freedom Family Association: No replacement without replacement of §209 , June 27, 2002
  13. ↑ Federal youth council rejects raising the age of consent from July 2, 2002 - accessed on May 22, 2014
  14. ↑ a b c d Austrian Parliament: Resolution of the National Council of July 10, 2002, E 152-NR / XXI. GP a) p. 3 b) p. 4 c) p. 3 d) p. 7.
  15. ↑ Lambda Legal Committee: Section 207b: The judiciary almost exclusively prosecutes homosexuals . (PDF; 21 kB - version from Internet Archive ).
  16. ↑ Kränz-Nagl, Sax, Wilk & Winter Berger; Report on the YAP process 2003 , May 2004, Appendix A - 10.2.1.
  17. ↑ EU Network of Independent Experts on Fundamental Rights: Austria Report 2004. P. 62. (English, PDF, version from Internet Archive ).
  18. ^ Romeo And Juliet Law Law and Legal Definition. Retrieved November 2, 2017 .
  19. ↑ www.nsopw.gov. Retrieved November 4, 2017 (US Department of Justice website). Sex Offender Registry Websites. Retrieved November 4, 2017 (FBI website).
  20. ↑ How do Registration Laws Apply to Juvenile Offenders in Different States? Retrieved November 4, 2017 .
  21. ↑ a b c Article 130 - NY Penal Law (Sex offenses). Retrieved November 2, 2017 .
  22. ↑ Kirstan Conley: New York marriage age set to be raised to 17. In: New York Post. June 8, 2017. Retrieved November 21, 2017 .
  23. ^ KJ Dell'Antonia: When the Sex Offender Is a Teenager in Love. In: The New York Times. January 25, 2012, accessed November 3, 2017 .
  24. ^ Fertility, Family Planning, and Reproductive Health of US Women: Data From the 2002 National Survey of Family Growth. P. 72 , accessed on November 3, 2017 .
  25. ^ Fertility, Contraception, and Fatherhood: Data on Men and Women From Cycle 6 (2002) of the National Survey of Family Growth. P. 47 , accessed on November 3, 2017 .
  26. ↑ Sexual misconduct. Retrieved November 2, 2017 . Brittany Logino Smith, Glen A. Kercher: Adolescent Sexual Behavior and the Law. P. 27 , accessed on November 2, 2017 .
  27. ↑ Article 30 - NY Penal Law: Defense of Infancy. Retrieved November 3, 2017 .
  28. ↑ Mother allows 16 year old child to have sex with 21 year old. Retrieved November 3, 2017 .
  29. ^ The Definition of Sex Offenders Under The State of New York Penal Code. Retrieved November 2, 2017 . New York Sexual Misconduct. Retrieved November 2, 2017 .
  30. ^ Sexual Misconduct Charges in New York City. Retrieved November 2, 2017 . Case study with underage victim: People v. Mills. Retrieved November 2, 2017 .
  31. ↑ People v. MKR.Retrieved November 3, 2017 .
  32. ^ People v Hackett. Retrieved November 3, 2017 .
  33. ^ New York Raises the Age of Adult Criminal Responsibility. Retrieved November 3, 2017 .
  34. ^ Sex Offender Registration Act. Retrieved November 4, 2017 .
  35. ↑ Sex Offender Management. Retrieved November 4, 2017 .
  36. ↑ Frequently Asked Questions. Retrieved November 4, 2017 (15. Do juvenile sex offenders have to register?). New York State Sex Offender Registry Registerable Offenses. Retrieved November 4, 2017 .

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