Rape: The consent of adolescents as an attenuating circumstance in determining criminal liability

Abstract

This article analyzes, from a dogmatic, constitutional, and criminal policy perspective, whether the consent of persons under fourteen years of age can operate as a mitigating circumstance in the crime of rape in Ecuador. It examines the regulatory framework of the Comprehensive Organic Criminal Code, the jurisprudence of the Constitutional Court on progressive autonomy and peer consent, and international protection standards. The paper argues that, under current legislation, the consent of a minor under fourteen is legally irrelevant to exclude criminal liability, pursuant to Article 171(3) of the Organic Criminal Code. However, based on a critical analysis that incorporates evidence on how Ecuadorian adolescents communicate consent, it puts forward the possibility of a legislative reform introducing an exceptional mitigated form of the offense, applicable only in cases of close age proximity and complete absence of coercion or power asymmetry. This proposal does not grant full legal validity to the minor’s consent, but rather seeks to align the punitive response with the principles of proportionality and culpability, without undermining the enhanced protection of the sexual indemnity of children and adolescents.