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Defilement of Minors

Defilement of minors is a sexual offence committed against a person under the age of 18.

Defilement may be defined as an act which morally corrupts a person or deprives such person of chastity or  dishonours such person. The minor’s innocence is lost as a result of this act.

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Facts and information: defilement of minors

Whosoever commits this offence shall be liable to imprisonment for a term not exceeding 3 years, with or without solitary confinement.

In the case of a minor carrying out such acts, the punishment is not as harsh. If the minor offender is under 9 years of age he/she shall not be liable for punishment. If the minor offender is under 14 years of age he shall also be exempt from criminal responsibility if the act was not done with mischievous discretion (bad intention). However, the police may order a parent who is responsible to watch over the minor, and if not, they may be liable to a penalty of between €11.65 and €232.94. In fact if the offence to be given to the minor is a fine (ammenda) the Court may subject the parent or guardian to be found liable themselves for not being responsible in the upbringing of the child. If the child offender on the other hand is over 14 but under 18 years, the punishment applicable to an adult will be applicable but diminished/reduced by one or two degrees.

First of all to be considered a victim of defilement of minors, the victim must be a minor (under 18 years) of either sex. If the victim was under 12 years of age there will be an aggravation and therefore the offender will be punished more harshly. The offender will still be liable for the defilement if he was unaware of the age of the victim.

Moreover, if you were a victim of a ‘lewd act’ (obscene acts which excite the sexual passions of the offender) then you may be a victim of defilement. The act needs to be a physical act committed by the offender, even if not committed on the minor himself. Committing such an act even in the presence of the minor is enough. The Court says that one ‘lewd act' is enough to be considered defilement of the minor.

The illustration of pornographic material does not constitute a lewd act. However this is still punishable by law by imprisonment for a term not exceeding two years or four years (depending on the case) as it is considered to possible encourage or facilitate the defilement of a minor.

This is an offence, and the punishment depends on whether this offence was carried out with violence or not. If the offence is committed without violence then the offender is liable to 18 months to 4 years of imprisonment with or without solitary confinement. On the other hand, if the offender commits this offence on a minor under 12, or by deceit, or on a family member or for gain, or uses violence, then the offender shall be liable to imprisonment for a term between 2 to 6 years. Moreover the punishment shall be further increased by one degree if the offender places the victim’s life in danger, harms the victim (commits bodily harm), or is part of a criminal organisation.

The law provides that whosoever by means of information and communication technology proposes to meet a minor for the purposes of committing an offence and is followed by lewd acts, shall be liable to imprisonment for a term of 12 months to 4 years.

Whilst obscene language may be considered as a lewd act, it is unclear if words merely uttered constitute defilement of minors; however it cannot be totally excluded and thus must be seen on a case by case basis.

If there is no carnal connection (penetration) then the offence generally amounts to defilement of minors. Whenever a person penetrates a minor below 12 years of age, then there is presumption of violence (a necessary element for rape) and will be found guilty of rape. If the minor consent to the penetration and has reached 12 years of age, then there is no rape, but there is still defilement of minors. If there is both penetration, violence or the minor is under 12 years of age then there can be both rape and defilement of minors.

The law took many views over the years, however nowadays, the Courts ignore the history of the minor and if the offender commits lewd acts in the presence of the minor then he/ she will still be guilty of defilement of minors. The Courts and the legislator’s intention is to criminalise any sort of sexual activities with any minor, irrespective of whether there is defilement or not.

In cases where there is no aggravation the offender is liable to not more than 3 years of imprisonment. However, the law says that if the offence is committed on a minor below 12 years of age, or is committed with violence, or by means of threats or deceit, or is committed by a family member (ascendant, father or mother, tutor, or person charged with care of child even if temporarily such as a teacher), then the offender will be liable to imprisonment for a term of 3 to 6 years instead.

This offence requires an official formal complaint from the injured party. This means that the victim would have to file a police report for the authorities to take action. However there are some exceptions where the police can take action even if the victim did not complain. This is if the offence is accompanied by public violence or affects the public order, or if it is committed with abuse of parental authority or tutorship.

A person who despite not having defiled the minor himself, instigates, encourages or facilitates defilement, shall be liable to imprisonment not exceeding four years. A hypothetical example would be a teacher who allows another person to commit certain acts which amount to defilement in the presence of pupils under his charge.

Aġenzija Appoġġ Head Office -  Address: 36, St. Luke's Road, G'Mangia, Pieta PTA 1318, Malta Phone: (+356) 2295 9000 E-Mail: appogg@gov.mt