SEXUAL ACTS WITH ADOLESCENTS | PRINCIPLE OF EQUALITY | PROHIBITION OF DISCRIMINATION | ROMA ETHNICITY

 

 

        Porto Court of Appeal, proc. 297/11.0JAPRT.P1, 17.10.2012  

 

JURISDICTION: Criminal

SUBJECT: Sexual acts with adolescents

RAPPORTEUR: Melo Lima

RULING: Dismissal of the appeal and confirmation of the lower court ruling which had convicted the defendant for the commission of two crimes of sexual acts with adolescents, in one combined penalty of three years’ imprisonment.

DOMESTIC LAW:

Criminal Code (Articles 14, 40, 71, 77, 173)

Code of Criminal Procedure [Article 410(2)]

Portuguese Constitution (Article 13)

INTERNATIONAL LAW:

European Convention on Human Rights (Article 14)

Protocol no. 12 to the European Convention on Human Rights (Article 1)

FOREIGN LAW:

Spanish Criminal Code [Article 183(1)]

KEYWORDS: Principle of equality; positive formulation of equality; prohibition of discrimination; differentiation of treatment; inequalities of fact; objective and reasonable differences; Roma mores; family unit of Roma ethnicity; rules of the Roma ethnicity; exception regimes; community mores; Roma encampment; street vending of clothes; mendacity; dependency on social welfare and support; antisocial behaviour; Roma community; religious community; shed; unequal treatment; positive discrimination; inversion of values; community sensitivity; Roma citizen; equality before the law; equality through law; special vulnerability; Genesis; Canon law

COMMENTS:

  1. This judgment addresses the possibility of harmonising the principle of equality with differentiations in treatment grounded on cultural reasons. In the excerpt chosen by the rapporteur for the summary of the ruling, it is stated: ‚ÄúNeither the principle of positive formulation of equality, nor the principle of negative formulation of prohibition of discrimination prevent differentiations in treatment designed to correct inequalities of fact, provided that those differences are objective and reasonable and that they pursue a legitimate end, i.e., that there is a justification that is objective, reasonable and proportional between the means used and the ends pursued‚ÄĚ [italics in the original]. The cultural reasons argued in court ‚Äď the fact that the marriage age according to the Roma mores is lower than that set by civil law ‚Äď are not accepted by the Court as justification in the instant case. According to the Court, what is at stake is the fact that an adult took advantage of the inexperience of a 14 year old child in order to have sex with her, something that the Court suspects is not accepted ‚Äúeven by the Roma mores‚ÄĚ.

 

  1. The Court reviewed an appeal lodged by a defendant convicted in first instance for the commission of two crimes of sexual acts with adolescents, punished by Article 173(2) of the Criminal Code, in one combined penalty of three years‚Äô imprisonment. The lower court had concluded that the defendant, 30 years old at the time, after having left prison for another crime, had looked for the child (14 years old and with a ‚Äúmoderate intellectual disability‚ÄĚ) and managed to persuade her to have sex with him, saying that he liked her and that he wanted to marry her. According to the lower court, the defendant had acted ‚Äúfreely, deliberately and fully aware of the child‚Äôs age, her inexperience and her special vulnerability, and wanting to take advantage of that with the purpose, which he fulfilled, of satisfying his lustful and lecherous instincts‚ÄĚ. In his appeal, the defendant acknowledged that he had acted against the law, but argued that the penalty was ‚Äúmanifestly excessive‚ÄĚ and asked for a penalty of no more than 18 months‚Äô imprisonment, to be replaced by community service with possible educational supervision by the Social Reintegration Institute. According to the defendant, the lower court had not given any consideration to the circumstances of the case that might weight in his favour when setting the penalty, starting with the fact that both the defendant and the victim ‚Äúbelong to the Roma ethnicity‚ÄĚ, a community where couples marry very young, and the mitigating circumstance that the defendant‚Äôs actions in the commission of the second crime had been determined by ‚Äútemptation by the victim‚ÄĚ, who had insisted several times for a meeting with the defendant. The defendant denied having acted with any type of criminal intent, ‚Äúsince, in light of the mores of his community, he had no conscience of committing a crime‚ÄĚ. In his defence, he further noted that the victim‚Äôs grandmother had tried to withdraw the complaint and that, according to the medical report, the victim had stated that she did not feel offended and did not want any punishment for the defendant. The Porto Court of Appeal rejected all of these arguments and dismissed the appeal. The Court refused to consider new facts invoked by the defendant, since they were not included in the facts established in the lower court‚Äôs ruling, noting that in any case such facts would always be irrelevant to determine the penalty. Regarding the defendant‚Äôs claim that the victim did not feel offended and had forgiven him, the Court notes that what is at stake is not the practice of sexual acts against the victim‚Äôs will, but instead the fact that the defendant took advantage of the victim‚Äôs vulnerability in order to seduce her and persuade her to have sex with him. As for the claim that the victim had insisted with the defendant for them to meet, ‚Äútempting him‚ÄĚ, the Court notes that some of the phone contacts mentioned by the defendant were not listed as established facts in the lower court ruling (and therefore cannot be considered) and that, in any case, the ‚Äútransfer of responsibility to the victim would not preclude the unlawfulness of the act nor the defendant‚Äôs responsibility‚ÄĚ. As for the argument that the defendant did not act with any type of criminal intent, but only negligence, the Court transcribes the facts established by the lower court and simply concludes that this is a picture of ‚Äúevident direct criminal intent‚ÄĚ. As for the argument of belonging to the Roma ethnicity, the Court considers that the defendant ‚Äúconfuses the concepts‚ÄĚ when he invoked the principle of equality to ask the Court to differentiate negatively by ‚Äúrefusing to apply a provision in accordance with the legal interests that it is directly designed to protect, in favour of values and/or mores that in reality barely exist‚ÄĚ.

 

  1. In his appeal, the defendant seems to acknowledge the tension between the principle of equality and the cultural argument that he wants to push as an exception to this principle. The defendant says that he ‚Äúdoes not want to ¬ędo tabula rasa¬Ľ of the principle of equality enshrined in the Constitution‚ÄĚ ‚Äď that is, he does not want to disregard it entirely ‚Äď, at the same time that he claims as certain that there are ‚Äúsome so-called ¬ęexception regimes¬Ľ‚ÄĚ which are applicable to the instant case by analogy. The use of the expression ‚Äúexception regimes‚ÄĚ would be problematic if interpreted as a claim to the existence of separate legal orders for the Roma community and for the rest of the Portuguese population [for conjuring the spectre of ‚ÄúStates within the State‚ÄĚ, a threat often mentioned in the debates about multiculturalism and minorities (see PATR√ćCIA JER√ďNIMO, Li√ß√Ķes de Direito Comparado, Braga, ELSA-UMinho, 2015, pp. 47-48)], but the use of commas suggests that that is not what the defendant means by it. The Court, for its part, does not touch the issue. The Court interprets the defendant‚Äôs arguments as a reference to the ‚Äúpositive dimension‚ÄĚ of the principle of equality, i.e. the need to differentiate. ‚ÄúUnderlying the defendant‚Äôs reasoning, if we understand it correctly, is the idea that, since the principle of equality can manifest itself in a double dimension ‚Äď negative (banning privileges and discriminations) and positive ‚Äď the latter should be used when assessing the case at hand, in a direct call for an unequal treatment for a situation which is substantially and objectively unequal‚ÄĚ. The Court acknowledges that the principle of equality allows positive discriminations, but adds that the differences in treatment adopted to correct de facto inequalities must be objective and reasonable and must pursue a legitimate end. ‚ÄúSurely, as understood, neither the principle of positive formulation of equality, nor the principle of negative formulation of prohibition of discrimination prevent positive discriminations, differentiations in treatment designed to correct inequalities of fact, provided that those differences are objective and reasonable and that they pursue a legitimate end, i.e., that there is a justification that is objective, reasonable and proportional between the means used and the ends pursued‚ÄĚ. According to the Court, in this instance, the defendant incurs in conceptual confusion by invoking the positive dimension of the principle of equality in order to achieve an ‚Äúinversion of values‚ÄĚ, i.e. to justify a breach of the negative dimension of the principle (prohibition of discrimination). What is at stake ‚Äď the Court explains ‚Äď is the protection of the free development of the adolescent‚Äôs sexual life and this is valid for any person, of Roma or any other ethnicity, colour, language, religion, national or social origin. Therefore, ‚Äúany discrimination here, in line with the defendant‚Äôs request, could only have a negative meaning, that is of denying the protection that the law is meant to offer: protection to the culprit, lack of protection for the victim! That is the reason for the reference to inversion of values‚ÄĚ. Also on the positive dimension of the principle of equality, the Court adds ‚Äď in somewhat enigmatic terms ‚Äď that this means ‚Äúthe treatment of situations as they exist but also as they should exist, thereby adding an active element to the principle and making equality before the law a true equality through law‚ÄĚ. This phrase is referenced as being sourced from Jorge Miranda and Rui Medeiros annotation to the Portuguese Constitution. There it appears as one of the strands of the ‚Äúpositive meaning of the principle of equality‚ÄĚ, along with (i) equal treatment for equal situations; (ii) unequal treatment for unequal situations and (iii) proportionality in the treatment of relatively equal or unequal situations (see JORGE MIRANDA and RUI MEDEIROS, Constitui√ß√£o Portuguesa Anotada, I, 2nd ed., Coimbra, Coimbra Editora, 2010, pp. 222-223). It is not entirely clear what the Court meant by the phrase in the context of its reasoning. A possibility is that the Court wanted to note that the unequal situations that may warrant an unequal treatment must not be uncritically accepted by the State, which is bound to work to eliminate inequalities. There seems, in any case, to be some confusion between inequalities (which should be eliminated) and differences (which should be protected in many cases, albeit certainly not in an uncritical manner). The Court concludes the section where it discusses the principle of equality by stating that it is not at liberty to differentiate negatively. ‚ÄúSince the principle of equality is directly binding on public authorities, be they the legislator, the executive or the judiciary, this Court cannot differentiate negatively by refusing to apply a provision in accordance with the legal interests that it is directly designed to protect, in favour of values and/or mores that in reality barely exist‚ÄĚ.

 

  1. The Court expresses is sceptical that the ‚Äúvalues and/or mores‚ÄĚ of the Roma community invoked by the defendant really exist, but there is no indication in the text of the judgment of the Court having consulted with experts or books in order to clarify this point. It seems mostly intuition or logical inference on the part of the Court. Both the lower court ruling and this judgment make use of cultural information presented by the defendant and, possibly, also by the testimony of some of the witnesses (e.g. the victim‚Äôs grandmother) and by the Social Report. The lower court accepted as established facts that the defendant ‚Äúoriginates from a family unit of Roma ethnicity‚ÄĚ and that his socialisation process was marked ‚Äúby a precocious marriage (in accordance with the rules of the Roma ethnicity) at the age of fifteen‚ÄĚ [italics added]. The Court of Appeal is more sceptical in the treatment of the cultural information, seemingly doubting even the identification of the defendant and the victim as belonging to the Roma ethnicity, since it presents that information as a direct citation of the defendant‚Äôs allegations, between commas and followed by (SIC). Further on in the judgment, the Court is again cautious when stating: ‚ÄúLet‚Äôs admit as certain that the marriage age among the Roma is lower than what is prescribed by civil law‚ÄĚ. The Court is willing to accept this ‚Äď albeit tentatively ‚Äď because, in its opinion, what is at stake in the present case is not the marriage age but instead the exploitation of the child‚Äôs inexperience, something which the Court is certain that not even the Roma can accept. ‚ÄúThe mores of the Roma ethnicity regarding marriage age may even be in accordance with Roman law or Canon law! Surely, however, it is not in accordance with the mores of the Roma ethnicity the seduction that exploits and takes advantage of the sexual inexperience of a 14 year old child in order to have sex with her‚ÄĚ.

 

  1. Also in respect to the marriage age, the Court notes that it has changed over time, according to ‚Äúpurely physiologic or organic reasons‚ÄĚ, having been as low as 12 years of age for the feminine sex, in the 1867 Portuguese Civil Code, and only being set at 16 for both sexes with the 1977 reform of the 1966 Civil Code. The historical context provided by the Court suits the purpose of dismissing the question of the marriage age for the decision of the case at hand. ‚ÄúThe age ‚Äď the Court explains ‚Äď does not exhaust the punctum prurens of the matter as much as the breach of the public interest that the criminal law provision aims to protect. The 14 years issue is, to some extent, a non-issue. Although it is an object presupposition, it does not fulfill all the elements of the crime: what is key is the taking advantage (the exploitation) of inexperience, by means of seduction, that, when absent, precludes the crime‚ÄĚ [italics in the original]. The Court is in tune with the changes in mentality in Portuguese society, noting that the ‚Äúcommunity sensitivity‚ÄĚ, although shivering, ‚Äúnow more than ever, with pregnancies at 12, 13, 14 or little more years, is not without understanding for the sexual relations, even in adolescence‚ÄĚ. A propos, the Court also mentions the opinion expressed in the literature by Figueiredo Dias defending the decriminalization of the behavior punished by Article 173 of the Portuguese Criminal Code. The Court opts for not saying whether it agrees or disagrees with this opinion, stressing that its role is not to discuss the political choices made by the legislator, but instead to apply the law. ‚ÄúWe are aware of the criticism and/or openness to new horizons that [Figueiredo Dias] has expressed by the provision at stake: ¬ęIn reality, it seems to be recommendable, as iure dando, to decriminalise this type of behaviour, entrusting the protection of the development of adolescents‚Äô sexual life, in this part, to other means of social policy, namely of moral, educational and religious character¬Ľ. With due respect, as for agreeing or disagreeing with this forecast, it does not hinder the prohibition of arbitrariness as self-limitation for the judge to the extent that it is not for him/her to assess the political decisions underlying the law, i.e. to discuss whether the legislator, in a specific case, found the solution best suited, more reasonable or more fair. Its role is to apply the law‚ÄĚ. The comments that follow, in any case, suggest that the Court agrees with the decision made by the legislator to criminalise sexual acts with adolescents. ‚ÄúThe establishment of clear age parameters ‚Äď in casu, child between 14 and 16 years of age ‚Äď was based on the common knowledge that the victim, boy or girl, by his or her young age, is still forming his/her personality, namely at the level of the sexual dimension, far, therefore, from maturity. The law requires that the culprit be an adult, meaning that, precisely due to being an adult, there is a special obligation not the exploit the inexperience of any child between 14 and 16 years of age‚ÄĚ.

 

  1. Finally, it is worth noting that the Court makes a direct citation of the Genesis (albeit with a small typo ‚Äď 2:12 instead of 3:12) to establish a parallel between the attitude of the defendant and that of Adam, since both defended themselves by blaming the seductive woman. The lower court had considered that, by admitting to have acted as charged, the defendant had taken responsibility for his actions and that that was a point in his favour. Objecting to such a reading, the Court of Appeal states: ‚ÄúTo admit to have acted in a certain way does not necessarily mean an admission of guilt. Many times that is not the case. Here, in the arguments put forward in his own appeal, the defendant does not blame himself beyond having acted with negligence and, like Adam in Paradise, does not shy from transferring the blame to the victim: ¬ęThe woman‚Ķ gave me some fruit from the tree, and I ate it¬Ľ (Genesis 2, 12)‚ÄĚ [italics in the original].

Patrícia Jerónimo

Cite as: JER√ďNIMO, Patr√≠cia, ‚Äú[Annotation to the judgment of the] Porto Court of Appeal, proc. 297/11.0JAPRT.P1, 17.10.2012‚ÄĚ, 2020, available at https://inclusivecourts.pt/en/jurisprudencia2/

REFERENCES IN THE LITERATURE: n.a.

 

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