About lowering or abolishing the age of consent
November 22nd 2006 07:41
Three thoughts to start with.
From Wikipedia: "The median seems to range from fourteen to sixteen years, but laws stating ages as young as twelve and as old as twenty-one do exist. Some jurisdictions forbid sexual activity outside of legal marriage completely. The relevant age may also vary by the type of sexual act, the gender of the actors or other restrictions such as abuse of a position of trust. Some jurisdictions may also make allowances for minors engaged in sexual acts with each other rather than a hard and fast single age... Social (and the resulting legal) attitudes toward the appropriate age of consent have drifted upwards in modern times; while ages from ten through to thirteen were typically acceptable in the mid-Nineteenth Century, fifteen through to eighteen had become the norm in many countries by the end of the Twentieth Century."
In a 1997 briefing paper to the NSW Parliament (paper 21/97, "The age of consent", by Rachel Simpson and Honor Figgis), it is remarked: "There is no objective method for determining at what age a person can properly consent to sexual intercourse. In fact it was argued during the 1984 debate on the Crimes (Amendment) Bill that 'age limits are not determined by any particular logic, but by what is acceptable to the majority at any one time... it can and ought to be varied as conditions change...' (DP Landa, MP)."
Wikipedia elsewhere reports that: "On November 16, 2003 Channel 4 broadcast a programme, 'Sex Before 16: Why the Law is Failing' and afterwards conducted a phone poll of its viewers in the United Kingdom.
Of the 3366 respondents to the four options:
-- 34% thought the age of consent should be reduced to 14
-- 35% thought it should stay at 16
-- 13% thought it should be raised to 18
-- 18% thought it should be abolished"
Now, what I want to do in this post is present five of the main arguments for lowering or even abolishing the age of consent. This doesn't mean I'm advocating rape or exploitation, or sex with anyone at all, or even that I believe any of the arguments I'm making. But I do think they ought be made.
Many of these points (and with more pointers to sources) can be found in the Wikipedia article "Age of consent reform".
1. Consistency
In one simple form: If the defining feature of "age of consent" is consent, then age of consent should be the same as age of criminal responsibility, which should be the same as voting age, which should be the same as school-leaving age.
In the wake of youth crimes, people often call for harsher penalties -- "It's ridiculous to think these criminals didn't know what they were doing." But on parity of reasoning, isn't it also ridiculous to think that sexually active juveniles don't know what they're doing?
One might want to lower or raise the age of consent, but at any rate the four ages, if they exist at all, should match.
There are various related issues -- for instance, whether it's inconsistent that a distinction is usually made between homosexual and heterosexual acts (in some cases, in the form of homosexual acts being banned altogether, or being invisible to the law: no age of consent for lesbians in the ACT and NT), or that age of marriage is usually lower than age of consent (which might reflect that marriages need not be consummated, that marriages are thought useful for unforeseen pregnancies, or that, for whatever reason, the state is more comfortable with sex within marriage).
2. Practicality
The basic argument is that young people are already doing it, and the law is "laughably unrealistic" if it believes otherwise. Median age of first intercourse is often reported at 14 or 15; the average age of puberty is 12; one in six girls hits puberty at 8; and underage sex is increasing.
If not lowering the age of consent, at least one should include close-in-age exemptions (for instance, as a defence at trial, or as a statutory exception).
On this argument, criminalization creates more problems than it solves. (For instance, in France, people have been arrested for distributing contraception to teenagers.) Legalisation would bring the issue of adolescent sex into the open and permit, among other things, increased support, counselling, awareness, knowledge. And these are the only effective tools with which to combat STDs, teenage pregnancies, and child sexual abuse. An age-based rule simply doesn't work, and is not the best way to protect children.
Similar arguments are made in the context of drugs or prostitution -- prohibition doesn't work, legalistion permits regulation, and society should not consign a segment of its citizenry to extralegal invisibility.
3. Psychology
This argument might claim that empirical evidence shows that childhood "innocence" is not something that needs protecting -- that children are born sexual.
Furthermore, while abuse clearly causes damage, that repression is unhealthy, and positive sexual experience and knowledge beneficial.
In a phrase: It's harmful to "protect" children from sex.
4. Liberty
Various arguments might come under this heading, including:
-- age is irrelevant -- what matters is consent, and it's a fallacy that under-16s can't consent and can't initiate contact -- either with other children, or with adults; so laws restricting their free choice are wrong for the same reason that laws restricting any other free choice are wrong;
-- given that children are sexual beings from the day they're born, this of itself makes age of consent unjust, immoral and an affront to human rights and dignity. Forbidding sexual activity is comparable to prison;
-- it is appropriate to have laws regulating force, but it is not appropriate to have laws regulating sex. Governments should not intrude.
5. Fairness
When you set the age as 16, and not 15 or 17, you do it based on a balance of interests, and the two most important are: the individual's right to do whatever they like with their own body (imagine if age of consent were 40), and the state's paternalistic interest in protecting people against exploitation.
Now, the current attitude of the law is that a blanket rule is the best option. This rule may well do injustice in particular cases, but it is the only practical way to operate, and one does better to err on the safe side.
The counterargument scorns paternalism. The "safe side" also does injustice, just as a no-euthanasia rule also does injustice. And the safe side is too safe -- age of consent should be lowered or abolished. People need autonomy through knowledge and support: they don't need protection.
Further, in arguing for outright abolition, it might be said that given that puberty and psychologically maturity occur at different ages in different people, the doubtful benefits of the blanket rule aren't worth its unfairness. Individuals should be treated individually, and what comes to court should be arbitrated on a case by case basis. The current system can be replaced by more sensitive procedures.
Similar ideas are expressed in the Parliamentary Briefing Paper mentioned above (though the authors reject the ideas on the basis of impracticality): "Even if some sort of objective standard could be developed, it would necessarily be a standard formulated for the ‘average’ or ‘normal’ child, and would not take into account individual differences in the rate and level of development and maturity. Following this argument to its logical conclusion, it presents a case for no universal age of consent for either females or males, with each case being examined in its individual merits." And in a footnote: "[I]n 1977 the Working Party on the Age of Consent in Relation to Sexual Offences indicated that it would have preferred 'a total abolition of the idea of an age of consent, since it felt that the concept was increasingly out of touch with present day realities'. It has also been suggested that the best way of protecting young people is to exclude the criminal law altogether from the field of consensual sexual relations, based on the claim that young people are very often deterred from seeking advice or help by the knowledge that they are 'criminals'".
And what alternative procedures could there be if age of consent were abolished? Well here's three proposals:
-- current laws are adequate. Issues of consent already arise in sexual assault cases and in contract. Mechanisms for establishing child abuse already exist. One might object that it is ridiculous to expect children to be able to speak for themselves in court, but if children can't speak for themselves, that would count as strong evidence that they weren't rational enough to give consent.
-- current laws could be modified in various ways to err on the side of safety. For instance, age of consent could be replaced by "age of protection" (as formerly existed in the Netherlands). If there is sexual activity involving a person below the threshold of protection, then one could have a "rebuttable" rather than an automatic presumption of rape, with consent being a defence and the onus resting on (for instance) the older partner to demonstrate it.
-- there could be some other investigating procedure. Proponents of this view might suggest: (a) that consent is fictional in most contexts (there is no moment of consent when we purchase from a store -- we simply go in and purchase), and that a better concept is "absence of undue force"; or (b) that, given the various pressures to which a child might be subjected, there is a degree of artificiality to any consent or lack of consent obtained in a courtroom setting; or (c) that consent is inadequate to capture reality: "it's really impossible to express a very complete relationship between a child and an adult -- a relation that is progressive, long, goes through all kinds of stages, which are not all exclusively sexual, through all kinds of affective contacts. To express this in terms of legal consent is an absurdity." (Guy Hocquenghem)
From Wikipedia: "The median seems to range from fourteen to sixteen years, but laws stating ages as young as twelve and as old as twenty-one do exist. Some jurisdictions forbid sexual activity outside of legal marriage completely. The relevant age may also vary by the type of sexual act, the gender of the actors or other restrictions such as abuse of a position of trust. Some jurisdictions may also make allowances for minors engaged in sexual acts with each other rather than a hard and fast single age... Social (and the resulting legal) attitudes toward the appropriate age of consent have drifted upwards in modern times; while ages from ten through to thirteen were typically acceptable in the mid-Nineteenth Century, fifteen through to eighteen had become the norm in many countries by the end of the Twentieth Century."
In a 1997 briefing paper to the NSW Parliament (paper 21/97, "The age of consent", by Rachel Simpson and Honor Figgis), it is remarked: "There is no objective method for determining at what age a person can properly consent to sexual intercourse. In fact it was argued during the 1984 debate on the Crimes (Amendment) Bill that 'age limits are not determined by any particular logic, but by what is acceptable to the majority at any one time... it can and ought to be varied as conditions change...' (DP Landa, MP)."
Wikipedia elsewhere reports that: "On November 16, 2003 Channel 4 broadcast a programme, 'Sex Before 16: Why the Law is Failing' and afterwards conducted a phone poll of its viewers in the United Kingdom.
Of the 3366 respondents to the four options:
-- 34% thought the age of consent should be reduced to 14
-- 35% thought it should stay at 16
-- 13% thought it should be raised to 18
-- 18% thought it should be abolished"
***
Now, what I want to do in this post is present five of the main arguments for lowering or even abolishing the age of consent. This doesn't mean I'm advocating rape or exploitation, or sex with anyone at all, or even that I believe any of the arguments I'm making. But I do think they ought be made.
Many of these points (and with more pointers to sources) can be found in the Wikipedia article "Age of consent reform".
***
1. Consistency
In one simple form: If the defining feature of "age of consent" is consent, then age of consent should be the same as age of criminal responsibility, which should be the same as voting age, which should be the same as school-leaving age.
In the wake of youth crimes, people often call for harsher penalties -- "It's ridiculous to think these criminals didn't know what they were doing." But on parity of reasoning, isn't it also ridiculous to think that sexually active juveniles don't know what they're doing?
One might want to lower or raise the age of consent, but at any rate the four ages, if they exist at all, should match.
There are various related issues -- for instance, whether it's inconsistent that a distinction is usually made between homosexual and heterosexual acts (in some cases, in the form of homosexual acts being banned altogether, or being invisible to the law: no age of consent for lesbians in the ACT and NT), or that age of marriage is usually lower than age of consent (which might reflect that marriages need not be consummated, that marriages are thought useful for unforeseen pregnancies, or that, for whatever reason, the state is more comfortable with sex within marriage).
2. Practicality
The basic argument is that young people are already doing it, and the law is "laughably unrealistic" if it believes otherwise. Median age of first intercourse is often reported at 14 or 15; the average age of puberty is 12; one in six girls hits puberty at 8; and underage sex is increasing.
If not lowering the age of consent, at least one should include close-in-age exemptions (for instance, as a defence at trial, or as a statutory exception).
On this argument, criminalization creates more problems than it solves. (For instance, in France, people have been arrested for distributing contraception to teenagers.) Legalisation would bring the issue of adolescent sex into the open and permit, among other things, increased support, counselling, awareness, knowledge. And these are the only effective tools with which to combat STDs, teenage pregnancies, and child sexual abuse. An age-based rule simply doesn't work, and is not the best way to protect children.
Similar arguments are made in the context of drugs or prostitution -- prohibition doesn't work, legalistion permits regulation, and society should not consign a segment of its citizenry to extralegal invisibility.
3. Psychology
This argument might claim that empirical evidence shows that childhood "innocence" is not something that needs protecting -- that children are born sexual.
Furthermore, while abuse clearly causes damage, that repression is unhealthy, and positive sexual experience and knowledge beneficial.
In a phrase: It's harmful to "protect" children from sex.
4. Liberty
Various arguments might come under this heading, including:
-- age is irrelevant -- what matters is consent, and it's a fallacy that under-16s can't consent and can't initiate contact -- either with other children, or with adults; so laws restricting their free choice are wrong for the same reason that laws restricting any other free choice are wrong;
-- given that children are sexual beings from the day they're born, this of itself makes age of consent unjust, immoral and an affront to human rights and dignity. Forbidding sexual activity is comparable to prison;
-- it is appropriate to have laws regulating force, but it is not appropriate to have laws regulating sex. Governments should not intrude.
5. Fairness
When you set the age as 16, and not 15 or 17, you do it based on a balance of interests, and the two most important are: the individual's right to do whatever they like with their own body (imagine if age of consent were 40), and the state's paternalistic interest in protecting people against exploitation.
Now, the current attitude of the law is that a blanket rule is the best option. This rule may well do injustice in particular cases, but it is the only practical way to operate, and one does better to err on the safe side.
The counterargument scorns paternalism. The "safe side" also does injustice, just as a no-euthanasia rule also does injustice. And the safe side is too safe -- age of consent should be lowered or abolished. People need autonomy through knowledge and support: they don't need protection.
Further, in arguing for outright abolition, it might be said that given that puberty and psychologically maturity occur at different ages in different people, the doubtful benefits of the blanket rule aren't worth its unfairness. Individuals should be treated individually, and what comes to court should be arbitrated on a case by case basis. The current system can be replaced by more sensitive procedures.
Similar ideas are expressed in the Parliamentary Briefing Paper mentioned above (though the authors reject the ideas on the basis of impracticality): "Even if some sort of objective standard could be developed, it would necessarily be a standard formulated for the ‘average’ or ‘normal’ child, and would not take into account individual differences in the rate and level of development and maturity. Following this argument to its logical conclusion, it presents a case for no universal age of consent for either females or males, with each case being examined in its individual merits." And in a footnote: "[I]n 1977 the Working Party on the Age of Consent in Relation to Sexual Offences indicated that it would have preferred 'a total abolition of the idea of an age of consent, since it felt that the concept was increasingly out of touch with present day realities'. It has also been suggested that the best way of protecting young people is to exclude the criminal law altogether from the field of consensual sexual relations, based on the claim that young people are very often deterred from seeking advice or help by the knowledge that they are 'criminals'".
And what alternative procedures could there be if age of consent were abolished? Well here's three proposals:
-- current laws are adequate. Issues of consent already arise in sexual assault cases and in contract. Mechanisms for establishing child abuse already exist. One might object that it is ridiculous to expect children to be able to speak for themselves in court, but if children can't speak for themselves, that would count as strong evidence that they weren't rational enough to give consent.
-- current laws could be modified in various ways to err on the side of safety. For instance, age of consent could be replaced by "age of protection" (as formerly existed in the Netherlands). If there is sexual activity involving a person below the threshold of protection, then one could have a "rebuttable" rather than an automatic presumption of rape, with consent being a defence and the onus resting on (for instance) the older partner to demonstrate it.
-- there could be some other investigating procedure. Proponents of this view might suggest: (a) that consent is fictional in most contexts (there is no moment of consent when we purchase from a store -- we simply go in and purchase), and that a better concept is "absence of undue force"; or (b) that, given the various pressures to which a child might be subjected, there is a degree of artificiality to any consent or lack of consent obtained in a courtroom setting; or (c) that consent is inadequate to capture reality: "it's really impossible to express a very complete relationship between a child and an adult -- a relation that is progressive, long, goes through all kinds of stages, which are not all exclusively sexual, through all kinds of affective contacts. To express this in terms of legal consent is an absurdity." (Guy Hocquenghem)
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Comment by Adrian
Philosophy Blog
The Denver Post reports the case of a 13-year-old girl ("ZC") from Ogden, Utah, who had sex with her 12-year-old boyfriend. Both were charged -- and therefore both were simultaneously offenders and victims.
"The only thing that comes close to this is dueling," said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender.
And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.
...
Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime.
Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor.
For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.
Comment by Nonymous
Philosophy Blog
Sex offender freed
ATLANTA: A US man sentenced to 10 years in jail without parole for having consensual oral sex with a 15-year-old girl when he was 17 is free after Georgia's top court ordered his release.
Genarlow Wilson was greeted by his family as he left the Burruss Correctional Training Facility in Monroe County, Georgia, after serving two years and eight months in jail in a case that sparked a national campaign on his behalf.
"I was pretty confused for the most part (in jail) not knowing what to expect with all the (legal) disappointments we dealt with early on but I am finally happy to see that we have got justice now," Wilson told reporters.