The group rape of a minor under 11 years of age in a shopping center in Badalona, ??which was later recorded and broadcast, has shocked society due to the age of the victim, the type of aggression and the participation in it of young people who have not reached the age of majority.
Two over the age of 14 are hospitalized (one of them due to threats) and another on probation. Three other minors are under 14 years of age, and therefore cannot be charged from a criminal point of view. A sixth has not been identified.
The debate on the criminal age of minors is back on the table. Two experts provide their point of view on this issue and agree that crimes of this magnitude are also a social failure and advocate prevention.
In a distant time, although in reality not so much, minors under 16 years of age who committed a crime were tried by the juvenile protection courts, surprisingly there was no lower age. Reviewing files for a scientific paper, I found one of a seven-year-old boy accused of fraud. I remembered then that I said: “as it weren’t that he was cheating cards of Maya the bee.”
In 1991, the Constitutional Court declared unconstitutional article 15 of the Juvenile Courts Law, which affected the entire procedure. Thirteen years had passed since the promulgation of the Constitution. Once again, the laws arrived with a long delay to certain vulnerable groups.
In 1992, the first law was promulgated that recognized the guarantees of a rule of law for minors. As in other cases, it was considered that it was “an urgent reform” that advanced part of a “renewed legislation”. Thus, for the first time, a lower age was established, 12 years, and a higher one, which in the Penal Code was 16. In 1995, the Penal Code set the criminal age of majority at 18 years and demanded a new regulation for the criminal responsibility of minors.
After a long parliamentary debate, Law 5/2000 of January 12, regulating the criminal responsibility of minors, was approved. I remember the discussion perfectly because I was a speaker for this law as a member of the CGPJ. It entered to be debated in Congress with a draft proposal setting the age at 13 years and following an amendment by Izquierda Unida, it was established at 14. If those days there had been a serious case committed by a 12-year-old boy or girl years, this age would have been established. In the UK in 1993, the age of criminal responsibility was changed to ten years after two boys of that age cruelly killed a two-year-old outside a Liverpool shopping centre. In Europe, it is mostly situated at 14, although in some countries like Germany there is the possibility of expanding it to the range of “semi-adult people” which is from 18 to 21.
To understand the discussion well, it would be necessary to explain that the lower limit is not set for reasons of maturity; if it were so, we would not agree. It responds to a pure biological formula and to a criminal policy criterion. That is to say: until what age are we willing to renounce penal intervention? The lower limit does not mean that the behavior should not be reproached or that there is no risk, that the educational field does not intervene, that the damage is not repaired or that the victim is not taken into account. Inimputable means that there is no penal intervention of a punitive nature.
The current law that regulates the criminal responsibility of minors is considered formally criminal in nature, but materially sanctioning-educational. Applies to minors between the ages of 14 and 18. 23 years after its promulgation, the results are relatively good, although, like everything, it would also need some modification.
It would therefore be necessary to reflect also that we are not dealing with the best of systems, but surely with the least bad. That crime, and especially that of minors, is above all a failure of society, that the best response is the so-called primary prevention or global prevention, which is the one that is directed at the community by improving their living conditions. That once the crime occurs, we are obliged to seek the least harmful response for everyone.
For all these reasons, I would not be in favor of lowering the criminal age with an argument similar to increasing the penalties, punishing more will not have better results. However, I do think that by educating better, responsibly and above all with a restorative perspective, perhaps we can help build a better world.
A few days ago we learned of another case of sexual violence between minors. On this occasion, a multiple sexual assault committed by a group of minors on an 11-year-old girl in Badalona. A brutal aggression that adds to a significant number of cases of multiple rapes committed by minors.
According to data from the Mossos d’Esquadra, 38% of victims treated for sexual violence are minors (15% under 12 years of age). Regarding minor perpetrators, they have doubled in recent years. In this sense, the data from the Interior conclude that every three days a minor under 14 years of age commits a rape in Catalonia. Disturbing data that generates a strong social misunderstanding about what is happening with sexual violence and minors. The general computation of these data does not stop growing, surely because there is more training to be able to detect it and more and more girls and women denounce it.
But given these data, it is evident that we are not dealing with an isolated event, but rather that we are facing a structural problem that is essential to analyze in order to address what is most important in the fight against sexual violence: preventive policies.
There is no single offender profile. The profile of minors who commit rapes is very diverse, but, according to different studies, there are a number of common characteristics. For example, the aggressor and the victim know each other, contrary to what many people believe. Therefore, it is not usually an attack by a stranger, but on a large number of occasions there was already a certain prior link (an element that will often play a role of pressure on the victim so that they do not report).
On the other hand, and according to some studies (Echeburua i Amor, 2020), there is also an evident lack of affective-sexual education (in 96% of cases), early consumption of mainstream pornography (in 70% of cases before age 12), which objectifies and hypersexualizes women and at the same time naturalizes sexual violence, and, finally, in 26% of cases the aggressor is observed to come from violent family environments, where perhaps he has also been a victim of violence.
In short, extremely complex situations that converge and require a global approach from the most individual to the collective, including the family, educational environments and, of course, society itself.
In fact, when a minor is not criminally responsible due to his young age, criminal proceedings are exhausted (it is often not effective when we talk about changes). The psychoeducational approach in the medium and long term seems to be giving good results. According to some experiences, the vast majority do not relapse in adulthood. This is observed in programs in the United Kingdom where the interventions are based on becoming aware of the impact of aggressions on others, receiving sexual-affective education and emotional management, as well as deepening the assumption of responsibilities.
We need answers to understand what is happening with these minors in order to address preventive policies, avoid these attacks and not only place ourselves in what is reactive and punitive. And above all now, it is urgent for us as a society to become an insurmountable barrier, protecting and caring for the survivors and their families, because it is absolutely aberrational that after everything they have experienced, they receive death threats. A whole machismo that is a true barbarity!
