‘Sex makes everything complicated...’

‘... Even if you’re not having it, it makes things complicated.’

You might recognise that as a quote from the 2006 film ‘The Holiday’, spoken by Cameron Diaz. If not... it doesn’t matter much, because the inherent truth of that observation needs no movie magic to prop it up. Sex is indeed a complicated, kind of messy thing really. For one thing, it automatically creates its own level of politics: in the most visceral sense of the word imaginable (i.e., the art or science of POWER). And as we all know, politics is likewise complicated and... well, messy.

For another: at the risk of condensing every love-triangle plot ever conceived by romantic comedy screenwriters worldwide... sex also changes people. In more ways than just the obvious.

Consider for a moment all the differences between yourself as an adult, and yourself as a little child. How many of those differences are down to simple awareness of the complex political reality that is ‘sex’, in all its stages... from the onset of attraction (where applicable), to the act itself, to any of the possible consequences?

Small wonder people get more nostalgic as they grow older. Who wouldn’t miss a carefree life, devoid of all such hassle and complication? But that, too, is part of what makes this sex business so darn complicated. It is commonplace to tell a child to enjoy his or her childhood ‘while it lasts’. The reality, however, is that childhood doesn’t last; nor is it meant to. The inevitable loss of innocence – eulogised and dissected by, oh, so many great classics – may seem regrettable when looked back upon in later life. But it is also desirable. Having told that child to enjoy childhood, its parents would be horrified (to say the least) if it never grew up at all.

No, all things must pass. Even the nice things we all want to keep, like childhood innocence. When and how this happens – for happen it must – is, of course, another complication entirely unto itself. So make no mistake: Cameron Diaz was certainly onto something there. Sex IS complicated, no doubt about it.

You can just imagine, then, how much more complicated it gets, when you actually try to regulate it at law. This week, it was reported that an inter-ministerial committee would issue a recommendation to lower the legal age of consent from 18 to 16. By an interesting coincidence, a few days earlier we also got to know that two underage minors – a girl aged 15, and a boy aged 17 – had been charged in court for having ‘illegal sex’. 

Judging by the details of that case – and, separately, by initial reactions to the proposal itself – few people in this country seem to know what ‘age of consent’ actually means. Broadly speaking, there was a small online rush to comment about how inappropriate it is for youngsters to have sex at such an early age. One particular comment seemed to capture a sentiment common to many others: ‘People aged 20 are not mature, let alone 16...”

Quite frankly this is all irrelevant. What we are debating here is not ‘whether 16-year-olds should be having sex’. It is whether they should be treated as criminals if they do. And that is a hugely different thing.

Much of what makes this difference important arises from the aforementioned case. This is how it was reported: “Last Saturday, a 15-year-old girl and a 17-year-old boy were arraigned for having sex. The police got to know about the case after the girl claimed she had been raped but later admitted she had consented to have sex with the boy. In view of the law in force, the police were forced to initiate criminal proceedings against the two minors for defilement.”

Personally, I lost count of the logical fallacies and non-sequiturs after the second sentence. But let’s start with the obvious. 

At 15 and 17, both are under the age of consent established by law. Yet almost immediately, we are told that a rape accusation was dropped because the alleged victim had given her consent.

Excuse me, but... how can a 15-year-old’s ‘consent’ be considered legal, when she is not of an age to legally give any? That is the whole point of having an age-limit, you know. Sex with anyone below that age is automatically considered ‘statutory rape’... on the grounds that non-consensual sex is rape by definition; and a minor cannot give consent.

In this case, however, matters are massively complicated by the fact that the boy was underage, too. Technically, both indulged in non-consensual sex with a minor. One strict interpretation of the law – which would, of course, be perfectly ridiculous – would require them both to be charged with statutory rape. Another, slightly less perverse (but equally illogical) interpretation would decree that, as both were underage, both are technically ‘victims’, and cannot therefore be considered perpetrators. Case dismissed, etc.

As you can see, there is nothing simple about this particular case at all. And it is but one of an infinite number of possible permutations, whereby children as young as 15 can end up in court over something they probably didn’t even know was illegal in the first place.

That’s a pretty messed up situation, if you ask me. All the more reason, I would think, to amend a law that very clearly doesn’t work in practice. 

Nor is it the only reason to emerge from the same case. The police did not proceed with any rape charges, but they did arraign both teenagers for ‘defilement’. 

That word tells us a lot about the actual state of play here. ‘Defilement’ is an archaic term which assumes that the two youngsters were virgins at the time of the ‘offence’. It belongs to the same generation of language usage whereby the words ‘maiden’ (i.e., virgin) and ‘young lady’ were considered virtually interchangeable. 

Young ‘maidens’ today would probably laugh at the very idea... until they find themselves in court for the grave crime of having lost their own maidenhead. Then, they will realise too late that Malta’s penal code – in so far as it touches on that messy and complicated thing called ‘sex’ – has never actually evolved beyond the 19th century.

And indeed it hasn’t. The law those two kids were charged with violating was written at roughly the same time as other laws criminalising homosexual activity: an offence which was punishable, not just by prison, but also hard labour.

We have long removed hard labour from the punitive justice system, and ‘sodomy’ (to use the equally archaic term by which it was referred to at law) was decriminalised in 1973.

Why, then, do we still retain archaic and outdated laws that make it a crime to lose one’s virginity at any age?

Leaving aside the sheer absurdity of it all... if the criminal justice system had to take its legal definitions literally, the above case could be thrown out of court by simply proving that neither teenager was a virgin at the time of their sexual encounter. No virginity, no defilement. And what then? Presumably we’d have to go back a few bonks in time, to find out when they did lose their virginities... and then charge them for their ‘Original Sin’. 

Exactly why any of this would be considered ‘worth the paperwork’ – to use another trite movie quote – is another question. The police seem to have an awful lot of spare time on their hands, given that they wasted so much on this case. Perhaps they might wish to answer it.

Then again, perhaps they already have. It may have been an assumption on the journalists’ part, but according to the article, the police felt compelled (‘forced’ is the word used) to press charges. Somehow, I suspect that this may even be true. My guess is that the police do feel rather silly going ahead with this kind of prosecution... but as long as Malta’s legislation remains anchored within laughably outdated attitudes towards sexual propriety, they also feel they have no choice.

Again, this adds up to a good, solid reason to amend the law. The only question is, how?

Would lowering the age of consent iron out these anomalies? Not by a long shot, and I’m surprised anyone would think otherwise. Instead of prosecuting under-18-year-olds, we will simply prosecute under 16-year-olds instead. Same shit, different age group.

The question we should really be asking ourselves is whether this kind of offence should even be a police matter to begin with. Provided (naturally) that we are not talking about coercive sex... and that we are dealing with cases where both ‘offenders’ are underage (otherwise, the ’statutory rape’ charge would have to be pressed)... can anyone explain why the law should even get involved at all?

Oh wait, let me guess. Because things just weren’t darn complicated enough as they were...