Since 2017 in Costa Rica, the law for the strengthening of the legal protection of girls and adolescent women in situations of gender violence associated with abusive relationships, reform Criminal Code, Family Code, Organic Law TSE and Civil Registry and Civil Code, better known as the "Improper Relationships Law" was approved.
This law aims - in theory - to protect children by criminalizing sexual relations between adults and adolescents when there is a power relationship that is established according to an age difference, as well as the prohibition of marriage for persons under 18 years of age.
What does the law on improper relations say? That it is an offense to have sexual relations with a person between 13 and 15 years old when the other person is more than 5 years apart, and that in the case of persons between 15 and 18 years old, it will be an offense if the other person is older by 7 years or more.
While it is true that this may sound adequate and within the framework of human rights, at first glance, we can find not only some difficulties in its application but also in its approach, since by establishing criminalization as the only route to address these situations, it can generate other difficulties, the most important being to promote silence and clandestinity of this type of relationships.
The protectionist line followed by the law not only takes away any possibility of autonomy and evolutionary development of adolescents but also undermines the opportunity for these people to feel confident in being able to talk about the realities and conditions of these bonds without feeling judged or exposed, depriving them of the possibility of accessing reliable and safe information, as well as services and social programs that could benefit them.
The execution of the Improper Relationships Law does not have a clear route beyond the sanction. In practice, when the family supports the relationship -which in most cases is when this person is close to the family-, if there are children involved, if it is a heterosexual couple, it seems that no one thinks of sanctioning; culturally, it is not frowned upon and therefore it is not punishable. That is to say, when the "improper" relationship is heterosexual, between a man known by the family, with resources, and an adolescent woman, neither the family, nor the community, nor the State gets involved in enforcing the Improper Relationships Law. On the contrary, it is thought that if he is willing to take the teenager forward, then not only there is no crime but there is a blessing: until death does them part.
On the other hand, when the relationship is between women, it is not with a person close to the family, and also when it occurs in rural areas, the community, the family and the State enforce this law. Because we know that the marriage that never fails is that of patriarchy with lesbophobia.
I say this because of Juana's story, who lives in a rural area in Costa Rica. She was 13 years old when she became pregnant by a 20-year-old man. Her family gave her full and complete support so that she could have her child, and even accompanied her so that she could receive an economic incentive from the National Child Welfare Agency. However, they never raised the possibility of denouncing either the improper relationship or the man so that he would at least take over parental responsibility.
Four years later, Juana, now 17 years old, decides to leave home, after several episodes in which her mother physically and emotionally assaults her, a situation that worsens when she discovers that Juana is having a relationship with María, a 25-year-old woman.
The mother throws Juana and her son away from the house. The only support she has from that moment on is María, who, although she continues to live with her family and had no plans to live with Juana, welcomes Juana and her son so that they have a place to live.
The mother continued to physically assault Juana when they met during the grandchild's visits with the grandmother, so Juana decided that these visits would not continue. Faced with this, Juana’s mother, with the support of the Improper Relationships Law, threatens to file a complaint because of the age difference between Juana and María, adding that she will also ask the child to be taken away from her for ill-founded abandonment.
In response to Juana's mother's complaint, the National Child Welfare Agency only listens to the mother's allegations and does not recognize the evidence that Juana and María have of the physical aggressions. The economic support from the government that Juana receives for being a teenage mother is still administered by her mother, so Juana asks an Agency official for guidance so that it will no longer be given to her mother. The official replied that she had to find another adult to take responsibility because "she is a minor": it is clear that, for the State, Juana can fend for herself and raise her child as an adolescent, but that does not make her fit to administer her resources.
Juana and María went to the family court to denounce the multiple aggressions against Juana, but found no response.
This is a case that is still open, but which I share in the interest of understanding how the law operates differently when Juana is in a heterosexual relationship, even though she is much younger and with more age difference, than when Juana decides to have a relationship with a woman. Juana's mother has said that, if her new partner were a man she would not have gotten in the way, and even the family at some point asked for custody of the child in exchange for not denouncing María for the “improper relationship” with Juana.
It is clear how the protectionist approach reinforces heterosexual, sexist and adult-centered stereotypes and takes away the possibility of autonomy so that Juana can access economic resources to live, and also be able to decide the gender of her partner. By not having an intersectional view that recognizes the particularities of sexual orientation and gender identity, ethnicity, ethnic and racial minorities, among others, the sentence of inequality is inherent to the law. Instead of being an action to guarantee the human rights of the people that the law intends to protect, it is an opportunity for a lesbophobic application, where it is possible to take away Juana's child, turning the law into a heteropatriarchal tool of control and where there is evidence of the lack of intersectional understanding between gender, sexual orientation, age and rurality to address the experiences of sexuality of adolescents.