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Debate: Lowering sexual age of consent laws

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Should age of consent laws regarding sex be made more liberal?

Background and context

The age of consent refers to the age at which a person’s consent to have sex is recognised as valid in the eyes of the law. Men (and sometimes women, depending upon local law) who engage in sexual activity with young men or women below this age are therefore guilty of a criminal offence. This is true even if it was the young person who wanted to have sex and ‘fully consented’ to it – the agreement of the person below the age of consent is simply invalid in the eyes of the law. Yet in many countries this offence (often called ‘statutory rape’, as in the USA) is one that is very severely punished, sometimes with a sentence of up to life imprisonment. It is the combination of these factors that make age of consent laws highly controversial. Useful tip: age of consent laws are highly complex because of their many variations, and therefore all too often create difficulty for students in age of consent debates. To avoid confusion it is best to: (a) Firstly think about the ‘basic’ age of consent rule (no sex with anyone below 16 in England, 16 in most parts of Australia, 14 in Canada, and varying from state to state between 13 and 18 in the U.S.A) (b) Secondly think about the ‘plus’ element – many places in addition to the ‘basic’ rule, also make it an offence for you to have sex with persons below a certain age (usually 18 or 21) if that person is in a relationship of ‘trust or dependency’ with you. This would include relationships between children in foster care and those responsible for their welfare, and those between teacher and student. Such places include England, Australia and Canada. (c) Thirdly think about the ‘minus’ element – in subtraction from the above two rules, states may make it not an offence if: (i) you reasonably thought the person was above the ‘basic’ age; or (ii) you reasonably thought you were married to the person; or (iii) you were not much older than the person (usually 2 years); or (iv) you yourself were under a certain age at the time (often 18, but this varies) – but provided that the adolescent you had sex with is not in fact really, really young. In most jurisdictions if the adolescent is really, really young (i.e. 13 in England) then even these ‘minus’ elements will not be allowed as a defence. (d) There are therefore an almost infinite number of ways in which age of consent laws can be reformed. It is less important to know the age details of each rule in each country (16 years? 13 years? 14? 15?). It is instead very important to think about the ‘basic’, ‘plus’, and ‘minus’ ideas in age of consent laws (such as, should it be a defence if someone had sex with a really, really young girl but really, really, really believed she was above the legal age of consent?). This article considers the arguments whether, in principle, age of consent rules should be made more liberal (lower or no ‘basic’ age and more generous ‘minus’ elements) or made stricter (same or higher ‘basic’ age and with less or no allowance for ‘minus’ elements).

Contents

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Argument #1

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Yes

The freedom of sexual expression (and exploration) is not only a matter of choice which is fundamental to the individual – it is also particularly important to young persons as they proceed through the stage of adolescence into young adulthood. Age of consent laws place artificial limits on this freedom. Sex is entirely natural and should be celebrated in the context of loving relationships, not criminalised and put under the prying eye of an authoritarian state. Violence, coercion and exploitation in sexual relationships should still be punished, but not consensual activity. Age of consent laws are also arbitrary as children become sexually and emotionally mature at very different rates, so any artificially imposed limit will be too high for many and too low for others. Such restrictions go against the human rights to privacy and of freedom of expression.

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No

It is undeniable that young children form a special and vulnerable group in society. Nowhere is this more true than in the context of sex – so much so that we often need to protect them by placing limitations on what they do sexually. Below a certain minimum age, children are at risk of not having the physiological, biological and, most importantly, emotional development to cope with sex, and with the many possible consequences of having sex, which include teen pregnancy, illegal or legal abortion, childbirth, parental and societal disapproval, and unsupported parenthood. Unfortunately everyone matures a different age. That does not mean that choosing an average, approximate age for consensual sex, such as 16, is arbitrary or wrong. There is no great harm in asking “early developers” to wait for a year or two before they begin to have sex. After all, young people are not always as mature as they like to claim they are.

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Argument #2

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Yes

The idea that young persons should not be having sex is a leftover relic from the past: its justifications are anachronistic and have little place in modern times. Age of consent laws were the product of a ‘purity campaign’ in Britain in the 1800s, when it was believed that sex was a ‘male privilege’, that it led to the sexual ruin of young women, that it meant the loss of their virtue (a fate worse than death), and that it contributed to women’s second class citizenship. In the UK the age of 16 was chosen and set in 1885, more than 100 years ago, and has remained ever since. Today these ideas would offend both men and women.

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No

Liberals tend to assume that many young boys and girls would want to have sex if not for age of consent laws. In reality many boys and girls themselves actually do not want to have sex or sexual contact, but lack the social and emotional confidence to say ‘no’. Age of consent laws protect such children, by preventing others from putting them in such a difficult position.

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Argument #3

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Yes

Even if we can accept that children need protection from sex, is it right to use the full force of the criminal law – which includes the threat of criminal prosecution and the prospect of a criminal sentence – to do it? It is contrary to both justice and common sense for people who have merely had consensual sex with a teen who happens to be under-16 to be arrested, tried, branded with a criminal label (‘statutory rapist’, ‘sex offender’), thrown in prison, and thereby treated on the same footing as real (sometimes violent) rapists, arsonists and kidnappers. The debate surrounding the age of consent raises the broader point of the role of the criminal law. The function of the criminal law is to preserve public order and decency, not to intervene in the lives of citizens, especially those who have mutually consented to taking part in a harmless activity in private. To accept otherwise would be to disregard the crucial notion of human autonomy and the free will of the individual, which are expressed, regardless of one’s age, each time a person presents his or her consent. This is why it is so important that the law recognises the sanctity of consent.

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No

Even without resorting to a moralistic view of the criminal law (i.e. that its function is to stem moral disintegration and to uphold the ‘shared morality’ of society), there is adequate justification for age of consent laws. Society has a vital interest in ensuring that its naturally weaker members are protected from harm, and doing so is precisely the function of the persuasive and coercive powers of the criminal law. It is therefore legitimate for the law to aim to prevent sexual harm to children by criminalising sex with them. Indeed, age of consent sex laws are not the only laws dependent on age. In many countries it is also an offence, for example, to sell tobacco to children, or to employ children below a certain age in the entertainment industry, whether or not the child ‘consents’. Society must recognise the reality that the apparent expression of ‘consent’ by a child is often different from consent expressed an adult. In the case of the former, therefore, it is not always true that saying ‘yes’ is a true expression of human autonomy. The argument that these laws may cause injustice to someone who truly thought his partner was above the legal age is also a poor one – many countries already provide a defence for such situations.

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Argument #4

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Yes

Age of consent laws are in fact dangerous because they drive underground the very people who should be, and are in most need of, receiving contraceptives, advice on safe sex, and access to health and other educational services. This is true both of the ‘statutory rapist’ as well as the under-16 consenting ‘victim’, who may worry about having assisted in the commission of a crime. Both parties then become real victims as they are put at greater risk of contracting STDs or unwanted pregnancies (a serious problem – in the U.K. it is estimated that as many as half of teenagers have had sex with someone younger than 16). Liberalising age of consent laws will not encourage paedophilia or make sexual exploitation any easier. That is simply a false nightmare scenario propagated by scaremongers. Many countries have lowered the basic age of consent while strengthening their ‘plus elements’. For example, by making ‘sexual grooming’ an offence (to stop rings of internet paedophiles); by making it an offence to have sex with a young child if you are above a certain age or if the age differential between the partners is above a certain limit (to target adult paedophiles while allowing teens their sexual freedom); and by making it an offence to have sex with someone who is in a relationship of trust of dependency with you (to stop sexual exploitation).

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No

Lowering the age of consent (or worse, getting rid of it entirely) legalises, legitimises and brings above ground the many problems that we are fighting underground. It will provide an opportunity for paedophile networks to expand, by allowing them to target even younger children – now lawfully. The problem of paedophilia is already a rapidly growing one, made worse by its expansion into ‘related’ avenues such as child pornography. In addition to the obvious problem of paedophilia, the problem of the sexual predation of young children also encompasses the problem of youth prostitution (since prostitution is itself already legal in many countries), and the international traffic in boys and girls.

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Argument #5

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Yes

Some countries have one age of consent for young females (say 16) and a different, higher age of consent for young males or for having anal sex (say 18). This means that a heterosexual adult male who wants to have sex with a 17-year-old female is free to do so, but a homosexual adult male cannot have intercourse with a young man who is 17. Not only are such laws clearly discriminatory, they entrench and perpetuate the myths, stereotypes, and prejudices against homosexuals and homosexual sex. The argument about gay seduction is a false one – since most studies show that sexual preference and identity is often determined at a relatively early stage, and anyway is not determined by adolescent sexual encounters. Age of consent laws, if we are to have them at all, should be equalised across the genders.

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No

The principle reason some countries have higher ages of consent for males compared to females is simply because of the medical evidence that males reach sexual maturity at a later age than females (usually 2 years later). This has nothing to do with discriminating against homosexual sex. However it is true that when it comes to children, some countries do view (child) homosexual as slightly more dangerous than (child) heterosexual sex. Firstly there is the higher risk of HIV infection in the case of the former. And secondly there is the risk of ‘homosexual seduction’ turning a confused young teen homosexual, which may be confusing, disturbing, and traumatic to an immature boy.

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