Ages of Consent in Europe - Malta

Malta

The age of consent in Malta is 18. Sexual activity - typically by people over 18 - with people between 12 and 18 can be considered defilement of minors by lewd acts or corruption of a minor, which, at the discretion of prosecutors and the courts, depending on the circumstances, may result in a conviction.

Art 201 of Chapter 9 of the Laws of Malta (Presumption of violence in cases of carnal knowledge and indecent assault) states:

201. Unlawful carnal knowledge and any other indecent assault, shall be presumed to be accompanied with violence -
(a) when it is committed on any person under twelve years of age;
(b) when the person abused was unable to offer resistance owing to physical or mental infirmity, or for any other cause independent of the act of the offender, or in consequence of any fraudulent device used by the offender.

The punishment is imprisonment from three to nine years, with or without solitary confinement, as described in Art. 198 (Rape or carnal knowledge with violence). The punishment can be increased in certain cases described in Art. 202, such as when the person has not attained the age of nine years.

Art. 204 of Chapter 9 of the Laws of Malta (Defilement of minors) reads:

203. (1) Whosoever, by lewd acts, defiles a minor of either sex, shall, on conviction, be liable to imprisonment for a term not exceeding three years, with or without solitary confinement:

A number of aggravating circumstances exist to this blanket provision including: Abuse of parental authority or tutorship, where the victim is under the age of 12 and if the offence is committed by means of threats or deceit. There is no definition of how old the offender must be: Even another minor can be guilty of this crime, although there is no evidence that any such case has ever been prosecuted.

The age of majority is defined in Art 188 of Chapter 16 of the Civil Laws of Malta:

188. (1) Majority is fixed at the completion of the eighteenth year of age.

To apply Art. 203, there are requirements:

For the completed offence and apart from the formal element of the offence, there must be the lewd act (atto di libidine) and the actual defilement. The lewd act may be committed either on the person or in the presence of the minor. All acts which, either by their very nature or of the circumstances in which they are performed, either are directed to the indulgence of the sexual appetite, either of the agent or of the victim, and are capable of arousing sexual interest of the victim, are lewd acts for the purposes of the offence in question.

The term "defile" must be put in context. In example: If a person is sexually mature (even if minor) then he/she cannot be defiled. In 2008 two brothers, aged 19 and 20, were found not guilty of defiling a girl, then aged 16. Their sexual encounters were consensual, and it was clear that the girl had had several previous sexual adventures with several youths. In 2007 a man of 30 was found guilty of defiling a boy, then aged 14. He had set up a situation in which the boy came to his apartment; as a result of both childish curiosity and what the court deemed to be the guile of the adult man, the boy remained in the apartment even while man first showered and then committed the lewd acts. There are also other cases, where offenders have been found guilty even though the circumstances were not clear, such as the case of a hotel manager aged 35 with a 14 year old girl on holiday, three boys aged 18, 19 and 20 with three 14-year-old girls or another hotel manager of 46 and a boy of 14, who had encounters over a longer time.

In the wording of the law there is no discrimination on the basis of sexual orientation. However, discrimination can result from selective enforcement with regard to individual cases. "This may therefore lead to a higher incidence of cases in which the minor and the perpetrator are of the same sex, given that there may be parents who would not resort to legal proceedings should their 17-year old child have sexual relations with another person of the opposite sex but would do so if the person is of the same sex."

Marriage is allowed as early as the age of 16, which would, in theory, allow a case to arise in which a wife (or husband) they press charges under this article. In practice, this problem has never arisen.

The concept of age-banding employed in for example Canada is not present in the Maltese legal system and sexual activity between one partner who is 17 years old and another who is 18 years old can constitute defilement of minors, depending on the circumstances, with no exception being allowed purely on the basis of the proximity of their ages.