With six votes in favor and three against, the plenary session of the Constitutional Court (CC) resolved, on December 15, to declare the “additive constitutionality” of a norm consulted so that it is recognized in this that adolescents from the 14 years have the ability to consent to a sexual relationship between adolescents.
With the decision, the constitutionality consultation of article 175 paragraph 5 of the Comprehensive Organic Criminal Code (COIP) was acquitted, which provides that “in sexual crimes, the consent given by the victim under eighteen years of age is irrelevant.” In October 2018, a judge from the Judicial Unit for Adolescent Offenders of Quito decided to raise the file for consultation with the CC, in order for it to be resolved on the constitutionality of article 175, paragraph 5 of the COIP.
“The CC resolves that the consulted norm is not compatible with the rights of adolescents to the free development of their personality, to make free, informed, voluntary and responsible decisions about their sexuality, life and sexual orientation, and to privacy, recognized in the Article 66 numerals 5, 9, 20 of the Constitution, respectively,” states the ruling, part of case 13-18-CN.
In the reasoning of the resolution, the Court concludes that the consulted norm is not conducive to protecting the indemnity or sexual intangibility of adolescents aged 14 to 18 who are victims of a sexual offense, since by starting from the wrong premise that every minor 18-year-old lacks the ability to consent to a sexual relationship, ignores that there could be consensual sexual relations from the age of 14 according to the evolution of their faculties to exercise their rights.
In other words, the norm ignores that both the alleged victim and the alleged offender, in their capacity as subjects of rights, do have the ability to consent to a sexual relationship as a result of the evolutionary development of their powers to exercise their rights, and that the The result of said exercise cannot be a criminally reprehensible conduct.
For the highest constitutional interpretation body, the evaluation of consent is relevant to establish whether there is a conduct that must be criminally punishable or is the result of the evolution of the faculties of adolescents to exercise their rights.
The current Code of Childhood and Adolescence indicates that adolescents are considered to be people between 12 and 18 years of age. According to the COIP, whoever has sexual relations with a minor can be accused of committing a crime, regardless of their age.
The ruling had a favorable ruling from the constitutional judges Karla Andrade, Ramiro Ávila (concurring vote), Agustín Grijalva, Alí Lozada, Daniela Salazar (rapporteur judge) and Hernán Salgado, president of the Constitutional Court; while judges Carmen Corral, Enrique Herrería and Teresa Nuques ruled against the sentence.
This is the ruling of the Constitutional Court.
The Court clarifies in its resolution that, in order to assess whether consent in a sexual relationship from the age of 14 is valid or is flawed, the competent authorities, the prosecutor or the judge of adolescent offenders, in addition to listening to adolescents and take seriously their opinion based on the principle of best interests, they must analyze the circumstances of each case and consider at least five parameters.
In the ruling, the Constitutional Court recognizes that even relationships between adolescents could be the products of abusive practices, unequal power relations, violence, among other factors. For this reason, the evaluation of consent through the listening process is necessary so that the prosecutor or judge of adolescent offenders can determine whether or not the adolescents in question were capable of consenting, and if they were not, criminally reproach that conduct in accordance with the legal system.
On the contrary, it is clarified, presuming that adolescents never have the capacity to consent can lead to the punishment and criminal sanction of adolescents who may have acted according to the evolution of their faculties in the exercise of their rights.
Among them: consent must be given freely, voluntarily, autonomously, without pressure of any kind, without violence, threat or coercion; the adolescent who claims to have consented to a sexual relationship must be able to do so based on his or her maturity, progressive autonomy and evolution of faculties; the non-existence of asymmetric or unequal relations of power or submission that vitiate said consent.
In the event that an adolescent is considered an active subject for having sexual relations with another adolescent, all authorities must consider the particularities and guiding principles of specialized justice in adolescent offenders and will take into account their age difference, together with the others. set parameters.
The sentence issued by the CC will have general and future effects, without prejudice to the application of the principle of favorability.
It was also ordered that the Attorney General’s Office, the Judicial Council, the Public Defender’s Office and the Intergenerational Equality Council disseminate the sentence to prosecutors and judges of adolescent offenders, to public defenders and to cantonal councils for the protection of rights. The sentence must be included as part of the content of the training programs of the School of Judicial Function.
The Constitutional Court exhorted the National Assembly to adapt the COIP according to the parameters issued in the sentence, considering the capacity of adolescents to consent to a sexual relationship. (I)