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Age of Consent, Lowering Of
Summary: Should age of consent laws be made more liberal?
Introduction
This debate was originally written by Nicholas Tan ( Singapore )and is used in full to sperr further conversation on the given topic. All rights to the original document are given to the author- all opinions expressed hold no barring on the original author but the users/persons who typed them.
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)
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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.© 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).
Arguments
Pros
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.
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.
Cons
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.
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.
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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I personally wish to refrain from speaking on this matter before everyone has had their chance to speak so it is in this that i ask you all to begin this debate, I shall see you all again shortly.
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