Applying Fault Trees to the Analysis at the Minimum Age for Sexual Consent in the Criminal Law of México

Applying Fault Trees to the Analysis at the Minimum Age for Sexual Consent in the Criminal Law of México

Samuel Olmos (Universidad Autónoma del Estado de México, Mexico) and José Julio Nares (Universidad Autónoma del Estado de México, Mexico)
DOI: 10.4018/978-1-7998-1286-9.ch005
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Children and adolescents have the enjoyment of sexual and reproductive human rights, and when they have reached the minimum legal age for sexual consent, they acquire the right to exercise it. In the world this age, although supported by laws, is fixed by several factors, among which the cultural one stands out. Mexican criminal legislation punishes adults who have sexual relations with minors who are not of that age with the offence of rape because of the serious effects it has on their dignity and sexual health. On average, 76% of the penal codes of the country's federal states stipulate the age between 12 and 14 years. It is argued that this age, and in particular the first, lacks effectiveness in protecting as a legal asset the free development of the personality in its aspect of sexual health, so it is argued based on the theory guaranteeing human rights, the need to establish it at least 15 years. It analyzes the state of legislation in Mexico based on the failure trees.
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The vulnerable condition of children and adolescents makes them subject to various types of violence, such as sexual violence, which has serious effects on sexual and reproductive health. The criminal law, through the offence of equal rape, is responsible for preventing, dealing with and punishing conduct that threatens the sexual health of minors and jeopardizes their human dignity. This crime protects as legal property the normal development of the personality in its aspect of sexual health. The passive subject of the crime is common and indifferent, so the victim can be of any gender. The conduct can be carried out by any person, because the active subject is common and indifferent. When committed by minors, Mexican criminal legislation establishes that persons between the ages of twelve and less than eighteen are unimputable and must be tried in accordance with the National Law on the Comprehensive Criminal Justice System for Adolescents (Ley Nacional del Sistema Integral de Justicia Penal para Adolescentes). Persons over the age of 18 are imputable and are tried in accordance with common criminal legislation. This article analyzes the crime of equal violation established in the common criminal legislation, therefore, focuses on adults, without ignoring that when the crime is committed by minors, an issue arises that in itself contains a different problem.

European countries set the minimum legal age for sexual consent between 15 and 16 years, in Latin American countries it is 14 years, and in Mexico the average is between 12 and 14 years. The low age of sexual consent that exists in Mexico's criminal legislation is one of the factors that has contributed to the increase in sexual health problems and sexual violence, which affect the human rights of the vulnerable group of children and adolescents.

Taking as a reference the age of 12 years, the foregoing means that, if adolescents do not have the minimum legal age for sexual consent, even if they give their consent to a person to have sexual relations, the criminal law, through the offence of equal rape1, punishes it in order to protect the normal psychosexual development of the minor as a legal asset. When adolescents have reached the minimum legal age for sexual consent, criminal law recognizes their right to sexual consent, and therefore, to an active sexuality in order to have free and healthy sexual relations with the person of their choice, without sexual relations constituting any crime.

This study analyzes the minimum legal age for sexual consent established in the crime of equal rape against minors, through the approach of the theory of criminal law and the theory guaranteeing human rights. The purpose is to argue the need to raise this age to one that is adequate to protect the dignity of this vulnerable group. It is stated that the biological criterion that fixes this age at 12 years lacks due efficacy, so it should be abandoned to adopt a criterion that considers the physical, psychological and social capacity of adolescents. The characteristics of the sexual life of adolescents in Mexico are studied, and based on the fundamental right of the best interests of the child, it is proposed that the age of 15 provided for in the Federal Criminal Code is the ideal age for the country's states to reform their substantive criminal code in a homogeneous manner, in order to effectively guarantee the human right to the free development of the personality of adolescents. The penal reform in the sense indicated, would have a national impact by contributing significantly to eradicate the problem of sexual health and sexual violence that afflicts the vulnerable group of adolescents.

This study explores the construction of fault trees to legislate a minimum legal age for sexual consent in the case of Mexico. The fault tree technique shows a multifactorial proposal for establishing laws through scenario setting and their respective analysis, in order to determine possible legal gaps that are susceptible to creation and/or improvement. This type of technique is a systematic and systemic model for acquiring information about a crime, seen as a system. The information obtained can be used in comprehensive legislation. Fault trees is a technique used mainly in risk analysis of socio-technical systems (enter references), however, there is no evidence in the literature review of the application of the technique to the case of a “legislative system”', i.e. risk analysis in systems that have a substantial content of human activity, i.e. crime, public disorder, etc.

Key Terms in this Chapter

Children and Adolescents: The Convention on the Rights of the Child defines children as anyone under the age of 18; in Mexico, the General Law on the Rights of Children and Adolescents distinguishes between adolescents who are persons under the age of 18 and up to the age of 12; and children who are persons under the age of 12.

Generic Violation Against Minors of Age: There is a distinction between the crime of simple rape and the crime of equal rape. The first of these is the imposition of the coital relationship through physical or moral violence, being the active subject of the conduct and the passive subject common and indifferent, that is to say, it can be any person. Equivalent violation is when the active subject of the conduct, performs without violence the coital relationship with a person who does not have the minimum legal age for sexual consent. In this crime the active subject is common and indifferent, therefore, can be any person.

Theory of Criminal Guarantee: This is the theory developed by Luigi Ferrajoli, in which he maintains that criminal law is a guarantee of the fundamental rights of the governed against the ius puniendi or right to punish of the State.

Fault Tree: Systematic and systemic method that seeks to investigate the different factors involved in an unwanted event.

Federative Entities: Mexico is a federal Republic formed by 31 Federative Entities, and Mexico City. There is a penal code for the entire federation, and 32 penal codes issued by each of the entities, each of which provides for the minimum age for sexual consent according to its social context.

Human Rights and Fundamental Rights: Human rights are all those rights which, being inherent to human nature, belong to all persons universally and without distinction of any kind. When these rights are positivized in the constitutions, they acquire the distinctive name of fundamental rights, with the obligation of the State to monitor their fulfillment.

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