17 December 2015 by Jennifer
Just because I was pondering it myself… Some thoughts on the legal and social concept of “age of consent”.
- The basic idea of “consent” could be described as a kind of reasonably-well-informed, active willingness.
But it’s not always that simple. When is that not enough?
Teens can be well-informed and subjectively enthusiastic about having sex, yet the ethical territory here also includes unequal power and gradually-developing skills of judgement.
“Age of consent” is a compromise solution to some aspects of these complex, qualitative ethical questions. We all know that you don’t suddenly get spectacularly wiser from one day to the next just because it was your birthday; that’s a line in the sand, created to make the area manageable in a legal framework.
- The power differential between adults and children is partly inherent to being less experienced (and in some cases physically smaller), and partly created by how young people are treated. Examples of the non-inherent factors:
- A young person who has been brought up with “never disobey an adult”, or even only “never be rude to an adult“, is vulnerable to predators exploiting their trained compliance.
- If someone hasn’t had access to good information about sex and relationships, a predator can misinform them in manipulative ways and/or take advantage of their curiosity.
- One young person can be very differently positioned from another in terms of how their adult carers listen to them, believe them and back them up… or don’t.
- One person can be very differently positioned from another in terms of the emotional and practical resources they have access to.
- By default, children don’t get to choose their legal guardians. Anyone socially, practically or financially dependent on someone else is especially vulnerable if that person abuses them, and young people may also be under the legal control of someone abusing them.
- Obviously, a lot of teenagers start having sexual feelings long before the “age of consent”. Part of eradicating child abuse is agreeing that when young people dress or behave in ways interpretable as sexual, it’s the adults’ job to respond to that in the way that’s best for the young person, setting aside any sexual feelings the adult may have.
(I say “behave in ways interpretable as sexual” rather than “behave in sexual ways” because actions or clothing choices can interpreted by an onlooker as having sexual connotations even when the wearer or doer didn’t mean them that way. For example, a young child dancing may not have any concept of attracting sexual attention. But even a young person who consciously sets out to explore sexuality, or is attracted to an adult, is not “fair game”.)
- The ethical questions don’t vanish just because someone is “over age”. Two over-age people can still have very different amounts & types of power at their disposal.
- Protecting vulnerable people doesn’t mean ignoring their own wishes & intentions, or the skill they do have in navigating their own lives. A challenge for adults is to appreciate a young person’s feelings and perspective, and recognise why they might think something is a good idea for them, even when we’d like to encourage them onto a different path. Listening to a young person about their choices is never a mistake.
- Some age-of-consent laws have made partial exceptions for a small difference in age – an attempt to codify the difference between, on the one hand, peers exploring together, and on the other hand, predation. There have also been laws which treat positions of cultural authority (such as a teaching role) as a relevant factor.
I welcome these attempts to align the law more closely with the ethical territory; at the same time, I don’t expect it ever fully to match up.
- An especially tricky area of this agreement-to-protect is how to support teens who are doing sexual things and aren’t going to stop just because someone advises them to. Sometimes, under-age teens want help from adults, and the adults self-protectively back away from meeting them where they are, not wishing to be mistaken for predators or enablers.
I don’t remember now where, but I remember reading a story of being an isolated under-age “baby dyke”, trying to participate in bar culture, while older lesbians cautiously kept their distance, not only sexually but socially.
Back in the early 1980s, Victoria Gillick exerted a great deal of energy trying to prevent doctors giving under-age girls contraception without their parents knowing. I get where she was coming from, but I worry about the girls for whom that simply meant “sex and pregnancy” instead of “sex”.
Conclusion: “Age of consent” is only a start. It doesn’t measure every kind of power. It doesn’t replace thinking, and learning, and genuine thoughtfulness about the wellbeing of other people.