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Pregnancy emancipates ladies below 14 in Brazil

                     Age of consent now "moveable" in Brazil     

 PORTUGUÊSPORTUGUÊS

The minimum legal age for marriage in Brazil is currently 16, if authorized or consented by parents or if authorized by a judge.  Marriages below 18 - if valid - bring automatic emancipation under Brazilian law.

The age of consent indicates the minimum legal age from which an adolescent can have sex with a partner over 18.  Age of consent in Brazil is currently 14, if authorized or consented by parents.

However, the introduction of a new article in the new and recently approved Civil Code brought a new perspective to the issue.  Since Jan. 11, 2003, marriages involving pregnant ladies below 16 are not subject to invalidation anymore. The goal of the new article is to protect motherhood and the future of the baby, besides tackling the teenage single mothers subject in a more down-to-Earth and human approach (at least when the father is known).

Since then a year has passed, and as for now (January, 2004) no news involving the application of this specific article gained the media spotlights in Brazil yet (It doesn't mean nobody used the article yet; most likely somebody did).

Now two exceptions for marriages under 16 in Brazil

First exception

Age of consent is 14 (under parents' approval). Article 225 of the Brazilian Penal Code establishes that the state cannot initiate a legal action in sex crimes – it must be initiated by the own victim or by the victim’s parents (in case of a minor).  Sex is considered an act of private nature (not public). It’s part of the private life of the citizen. Therefore, only if not approved by parents, sex with a minor between 14 and 18 is prosecuteable in Brazil on the grounds of seduction (if towards a virgin girl) and/or corruption of minors (in any case).

 On the other hand, in sex crimes all charges are mandatorily dismissed if the victim marries the accused, under Article 107, VII, of the Brazilian Penal Code.   

The combination of these two facts means that, under certain odd circumstances, one can legally marry a 14-year old minor. 

This happens because law protects love. If one engages in sexual act with a minor above 14, and the minor’s parents don’t like it and initiate a legal action against this person, the minor and the person have the power to stop (and dismiss) the legal action by marrying each other, with or without the consent of the parents.

 On the other side, law protects compromise. The parents – if they want - can force someone to marry the minor (since the minor wants it, too), or else face prison.  It’s a way of preventing "sex adventures with minors".

 Normally, legal age for marriage in Brazil is 16 (if authorized by parents), under Article 1517 of the New Civil Code (Article 183, XII, of the old one), but as seen above, law at the same time protects marriage, punishes sex adventures and respects the will of the minor.

All these legal procedures are part of the Brazilian culture since 1940 when the Penal Code was approved. Marrying to someone that has not attained the legal age is popularly known in Brazil as "marrying in the police station".

Second exception

Second, the New Brazilian Civil Code (in force since Jan. 11, 2003) introduced another exception for legal marriages under the age of 16. Article 1551 says that in case of pregnancy,  marriages aren’t subject to invalidity on the grounds of age. The law text says exactly that “It won’t be annulled, on the grounds of age, the marriage that resulted in pregnancy”.  The law doesn’t specify a minimum age for this pregnancy, which means that marriages at any age will be valid since the girl is pregnant. As said before, here law protects motherhood and the baby.

It’s not clear yet if this recent change implies in reducing the age of consent from 14 to the age of puberty (which varies from girl to girl), when there is a marriage involved.  It seems that it depends on the interpretation of the judge.

Female puberty (and fertility) in Brazil takes place between 11 and 13 (in the vast majority of cases).

Theoretically, if one marries a pregnant 12 or 13-year old adolescent, this marriage cannot be invalidated by law, but because she is under the age of consent the judge could perhaps determine the separation of bodies until she is 14.  On the other hand, the judge can only examine this case if a legal action was initiated by the girl or by her parents (as seen above, the state cannot interfere).

In other words, while everyone consents (including the parents) and the girl is pregnant (or was pregnant, being now a mother), the age of consent in this very particular case (marriage with pregnancy) is reduced to the age of puberty (or if you prefer to the age of pregnancy or the age of fertility).

Finally, it’s interesting to observe that formally pregnancy doesn’t necessarily derives from sex. Thanks to the advances of technology, artificial insemination is also a possible cause (in case of minors, an authorization of the parents is necessary).

CONCLUSION

To sum up everything :

- Age of consent in Brazil is NORMALLY 14

 (WITH parents’ approval – or at least their tolerance);

- However if there’s PREGNANCY with SUBSEQUENT MARRIAGE (or vice-versa), then :

A) Age of consent becomes 14 in any case (WITH or WITHOUT parents’ approval, because the partner can't be prosecuted anymore once the marriage is now valid);

            OR

B) If below 14, age of consent becomes age of puberty/fertility (WITH parents’ approval).

Further details.

It’s also noteworthy that the “age of consent” here applies not only to sexual intercourse (penis in the vagina), but also to all forms of “libidinous acts” (which includes oral and anal sex, manipulation and/or mouth contact with the breasts and the vagina, and the masturbation of the other). One can be prosecuted by the parents of a minor in case of doing any of these libidinous acts with the minor (and not only in case of sexual intercourse).

Dating and kissing are allowed at all ages and are not subject to law enforcement (sex is not presumed from dating).

On the other hand, prostitution, pornography (and even acting in sex scenes in non-porn movies) are prohibited for all minors under 18, even when emancipated by marriage or by any other reason.

A WIN-WIN SITUATION

Well, these are the rules of the game in Brazil. It seems a win-win-win situation, where all participants can extract something positive - the minors, their parents and the minors' partners. And now, even the minors' babies.

SOURCES

1)      the new Brazilian Civil Code:

    http://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm

    (text in Portuguese; a rough translation can be obtained with BabelFish –                                    http://babelfish.altavista.com)

    2)      the Brazilian Penal Code:

         http://www.planalto.gov.br/ccivil/Decreto-Lei/Del2848.htm

        (text in Portuguese)

NOTE:  The age of consent is currently 12 in the Netherlands, 13 in Spain, 14 in Italy, Germany and Canada, 15 in France, 16 in England and Japan, and 14 to 18 in the United States (depending on the State).  For information about the age of consent in other countries of the world, see the chart at "AgeofConsent.com" (http://www.ageofconsent.com/ageofconsent.htm). 

Visitors since Jan. 03, 2004 = 

© Copyright, January 2004Rio de Janeiro, Brazil.

Keywords = law studies, legal studies, emancipation of minors, age of consent, statutory rape, brazilian law, brazilian civil code, brazilian penal code, sex with minors, teen pregnancy, teenage pregnancy, teenage single mothers, teen marriage, emancipated by marriage, emancipated girls, age of puberty, age of fertility, teen fertility, marriage of minors, corruption of minors, seduction.