Limits to consent in sexual matters: When is it possible to decide?

Abstract

Following the raising of the age of sexual consent from thirteen to sixteen by LO 1/2015, a major conflict arose because the social trend seems to be in the opposite direction, i.e. young people very often start to develop their sexuality before this age. Precisely in an attempt not to prohibit this normal development, the legislator created a penalty exemption clause limited to specific cases. However, even though the wording seems simple, it is subject to certain moralising connotations that lead one to reconsider whether the necessary separation between law and morality is fulfilled. In this paper, we will look at the origin and evolution of the aforementioned clause, its scope of application, its elements, its controversial nature and the way in which its application has been applied in case law.