She’s 13 and he’s 19: Understand the debate over early sexualization and rape

This Monday (26), no subject generated as much repercussion on social networks as the announcement of dating between two famous teenagers on TikTok. Best friends live in the same building and recorded unpretentious videos about their routine during quarantine. The friendship evolved into dating and the controversy arose because she is 13 and he is 19 – both recently had birthdays.

When they started to be successful on TikTok, she was 12 and he was 18. In more than one video, they clarify to their followers that they are, respectively, attending the 7th year of Elementary School and the first year of college.

For over 24 hours, Twitter has been the scene of an intense discussion about teenage dating. Terms such as “pedophile” and “child does not date” are among the most used by Brazilians on the social network. Another widely commented issue is the fact that the girl’s mother approves of the relationship.

Not long ago, the two tiktokers (as TikTok content producers are called) did a live in which the highlight was a kiss between them. The mothers of both were present, celebrating the situation. In another video, the teenagers are about to kiss and, in the background, the mothers appear in the crowd. In the end, the kiss does not happen and the music that plays the scene says: “We are just friends”.

Dating is no joke! In Brazil, any libidinous act that is carried out between an adult and a child under the age of 14 is considered a crime. Even with the consent of the child or adolescent, this conduct is considered rape of a vulnerable person. pic.twitter.com/hSz7IUqRFh

— Public Ministry of Paraná – MPPR (@mpparana) October 26, 2020

After the dating announcement and passionate posts on Instagram, the backlash was huge – even greater than among her more than one million followers on TikTok. Their account even ended up being barred by the social network and no longer exists.

In the face of all this, the tiktokers denied dating. According to them, it was nothing more than a trolling – term used to describe a prank, the famous “playing a trick”. They also said that they treat each other like brothers, which did not convince the public and the kiss scene between the two is being replicated to exhaustion.

Sub-celebrities of social networks are born in droves every day and are constantly leveraged by such trolling, controversial situations and all kinds of factoids. There are many young people who do everything in the hope of reaching more followers. Whether the two are dating or not is something Internet users are still speculating about, but the fact is that this situation has reignited the debate about teenage dating, sexual abuse of minors and early sexualization.

After all, what is the ideal age to start dating? And how does Justice look at cases like this? CLAUDIA spoke with Tatiane Moreira Lima, judge of the Court of Justice of São Paulo, Danielle H. Admoni, child and adolescent psychiatrist, specialist by the Brazilian Association of Psychiatry, and Elaine Di Sarno, psychologist specialized in psychological and neuropsychological evaluation and in cognitive behavioral therapy.

What does the law say about such cases?

According to judge Tatiane Moreira Lima, even if the age difference is small, a sexual act between a person over 18 and a person under 14 is considered rape of a vulnerable person. And it is worth remembering that the victim’s consent is irrelevant, as the law understands that, before the age of 14, a person still does not have full conditions to consent to the sexual act.

“The criterion chosen by the Legislative Power (paragraph 5 of article 217-A of the Penal Code), reinforced by the Superior Court of Justice (Precedent No. 539), is of an objective nature for the commission of the crime, with age difference being irrelevant , the fact that the victim had previously had sexual intercourse, or even the consent of her legal guardians”, points out Tatiane.

And what is considered sex act in such cases? “Libidinous acts constitute an open legal concept, which must be analyzed on a case-by-case basis. As a rule, any lascivious act that seeks sexual satisfaction can be considered a libidinous act. In this way, the lascivious, explicit, sensual kiss can configure a libidinous act.”

As already explained by the judge, parental consent is also not relevant in cases like this. They can also respond criminally for rape of a vulnerable person, if it is proven that they were conniving. “With the legal duty of care of those responsible for children under 14 years of age, parents who directly consent to their children under 14 years of age having sexual intercourse are committing the crime of improper omission.”

Tatiane also explains that, even in cases of virtual dating, the adult may have to respond in court if he or she is having a relationship with a person under 14 years of age. “The ECA defines that such conduct may constitute enticement (art. 241-D), if there is an intention to commit a libidinous act with this child. As for the sharing of any pornographic content, such conduct may lead to the commission of various crimes, as provided for in art. 241-B of the ECA: possessing or storing pornographic content involving a child or adolescent, or inducing children under 14 to witness a libidinous act, even if virtual (art. 218-A of the Penal Code).”

But what about when a teenager under the age of 14 gets involved with someone who has not yet reached the age of majority? The judge explains that, even so, Justice can intervene, although there are different interpretations for cases of this nature. “There is a theory pointed out in the doctrine called the exception of Romeo and Juliet (referring to Shakespeare). According to the aforementioned thesis, there would be no presumption that sexual dignity was violated in this case, when those involved in the conduct are young people at the same stage of discovering sexuality, and it is also reasonable to consider the age difference between them to be small”, he clarifies.

Such a doctrine of exception is not sovereign. “The Superior Courts understand that the vulnerability of children under 14 years of age is absolute, with no possibility of applying this theoretical exception. Once again, mention is made of the content of Precedent No. 593, which states: ‘the crime of rape of a vulnerable person is configured with the carnal conjunction or the practice of a libidinous act with a minor under 14 years of age, with any consent of the victim for the practice being irrelevant of the act, your previous sexual experience or the existence of a romantic relationship with the perpetrator’.” Therefore, when the aggressor is a minor – between 14 and 17 years old – it is possible that he responds for an infraction and is subject to the socio-educational measure.

Is there a right time for adolescent sexual initiation?

This is an issue that should not only concern parents, but society as a whole. Early sexualization is a worrying reality and is constantly on the agenda. In September, the film mignonnes, from Netflix, generated an avalanche of negative reviews – and it is not for less. In the plot, a group of 11-year-old girls strive to compete in a dance tournament. For this, they come up with an extremely sensual choreography, which goes hand in hand with the way they dress and behave on a daily basis.

At end, mignonnes proposes to convey the message that early sexualization is harmful. The problem is that, for this, the film ends up being what it seeks to criticize: a media product that uses and abuses the eroticized objectification of children’s bodies. The ends do not justify the means.

Even so, one thing is a fact: children and adolescents begin to learn about the existence of sex long before they are actually ready to start having sex. With the internet, this is even more evident and parents find it difficult to monitor access to inappropriate content.

For psychiatrist Danielle H. Admoni, there is no right time for teenagers to become sexually active. She draws attention to the fact that the Penal Code must be respected, but says that it is not possible to establish an ideal age.

For her, something essential is the correct guidance, especially with regard to the prevention of Sexually Transmitted Infections and early pregnancy. “The earlier the sexual initiation, the greater the chance of these problems happening and also of abuse.”

Danielle insists that children and adolescents need to be managed responsibly and this also concerns the dialogue about sexual violence – especially in relation to girls. “The best way to protect girls is always guidance: in relation to their bodies, what people can and cannot do with them, where they can move them, how they can move them, and how things work. So, in fact, this sexual, social orientation, in relation to their rights, is fundamental. And guidance regarding the body, how menstruation works, how the female body works, how the male body works. It’s very important.”

Psychologist Elaine Di Sarno draws attention to the fact that sex is still a taboo subject in many homes and that this needs to be changed. “Teenagers are very influenced by the opinions of others, the media, standards and thoughts that are taken for granted, and the media that constantly display messages with sexual appeal. All these factors can generate behavior change among young people, awakening in them an early interest in the first sexual relationship”.

Elaine points out that the risks of early stimulation of sexuality go far beyond the higher incidence of pregnancy and infections, also citing the anticipation of menstruation in girls, eating disorders, depression, poor school performance, trivialization of sexuality and even lack of desire sex in adult life. “The way in which the development of sexual learning occurs will have an impact on later adult experiences, professional relationships, self-care in health and notions about citizenship”.

The psychologist draws attention to the fact that, with the facilities of the internet, children and adolescents are even more exposed to sexual stimuli and risk situations. For her, dialogue, understanding and affection must prevail, rather than mere prohibitions. “Adolescents, due to the period of development, are immediatist and may resort to a relationship with an older person as a way of attacking and challenging their parents or even due to lack and transfer of affection”.

Elaine continues: “Many look to social media for ’emotional support’ from ‘any relationship’ in times of despair, loneliness, anxiety, or psychosocial difficulties”. In other words: dialogue and affection at home serve not only to instruct children and adolescents, but can also give determinants so that they do not expose themselves to risk situations and early sexualization.

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