“When and if we get there, the biggest obstacle we will face is how we will go about legally discerning what is and is not a consenting relationship? How will we be able to tell when a relationship is abusive or not? How will we know if a child is being threatened or pressured into saying they consented? Children can easily be manipulated by adults and it can be difficult to detect.”
The above is part of a comment left by Josh in response to the blog ‘Rationalization – Can Paedophiles Argue For Children’s Sexual Rights?‘.
When replying to Josh’s comment it soon became clear that it wouldn’t be possible with only a comment’s-worth of time, space and trouble to do justice to the issues he raises. And, to be honest, I’ve never felt sufficiently optimistic about the prospect for children and Kind folk to feel much need to think about the nuts and bolts of how society could work without the age of consent. So it’s with no little trepidation that I put finger-tip to keyboard…
(The bulk of this blog will consist of a summary of the proposals P.I.E.’s proposal as presented in ‘Towards more sensible Laws’, chapter 6 of Tom O’Carroll’s book ‘Paedophilia: The Radical Case‘. Readers wanting to pursue these issues in greater depth should read this chapter as it gives a much more detailed and authoritative account than I can give here)
If I were you I wouldn’t start from here at all
There’s a joke in which a tourist visiting Ireland by car stops and asks a local how to get to Dublin. The route to Dublin is clearly far from straight-forward, and after a few failed attempts at giving directions the Irish man says to the tourist “Sir, if I was going to Dublin I wouldn’t start from here at all.”
This joke encapsulates a major impediment to clear thinking on this issue: it is very hard not to think about the abolition of the age of consent other than in the context of where we are today: WEIRD societies. Our present, and probably long-term, challenge is not abolishing the age of consent but achieving a society in which abolition would be possible – we have as yet to reach a proper starting point.
It should also go without saying that such a society would be desirable only if it also improved the general lot of children, adults and the environment. I’ve speculated about the nature of such a society here and especially here and I won’t repeat the points I make in these essays beyond saying that societies that are highly community-based rather than the nuclear family-based are generally more accepting of child sexuality – and I believe that the kind of ‘green’, steady-state society that needs to emerge if we are to tackle global warming and the many other environmental perils we face, would be exactly such a society.
Anthropology and History are great resources for further insights into the nature and functioning of societies accepting of child sexuality and child-adult intimacy. To the patient and persistent researcher a resource such as the Growing Up Sexually Corpus is a treasure trove. We can learn a great deal from cultures with different conceptions of the family and childhood to ours, and many problems that seem insuperable in WEIRD societies disappear when the social context changes (I hope eventually to publish a series of blogs which anthologise anthropological accounts of child-sex friendly societies).
Maybe in a society that is becoming more accepting of child sexuality Age of Consent laws would gradually wither away of their own accord, at first being more honoured in the breach, then ignored, then finally repealed. Maybe the Children’s Court, that center-piece of the PIE proposals outlined below, would need to exist only during this transitional phase – becoming obsolete once children had access to the skills, experience and knowledge necessary for sexual autonomy and control of their sex-lives.
How the current system fails
I address this question in detail in the section ‘Better protection of children from sexual abuse’ of the blog-essay ‘Some Arguments For a Kinder World‘.
I won’t reproduce this section here as this essay already looks like it’s going to be excessively long. I’ll only state that under the current system all children who are involved any intimacy with an adult, no matter how consensual and mild, if that intimacy is discovered, get dragged through an adversarial and inquisitorial legal process. Under PIE’s proposals only cases which involved violations of consent, coercion, cruelty or criminality would be subject to criminal law.
This means that, since most adult-child intimacy is consensual, there would be a huge decrease in the number of children being submitted to the traumas of criminal proceedings.
The P.I.E. Proposals
As far as I can tell P.I.E.’s proposals are the only thought-through framework for an Age-of-Consent-free legal system. These proposals were drafted by Keith Hose in the early ’70s and though they are very detailed and well-thought-out, they are quite specific to a particular legal system (English) and that particular time. Rather than considering them as something set in stone I think they should be taken as a starting point for discussion and debate. Indeed Tom O’Carroll himself appears to depart from these proposals in one or two important areas.
(in what follows quotations from the “P.I.E’s evidence to the Home Office’s Criminal Law Revision Committee on the age of consent” will be appended with a (PIE). All other quotes are Tom O’Carroll’s own words)
The proposals effectively abolish the age of consent. The validity and/or legality of a sexual interactions will not be a function of the age of the participants but of the quality of the consent given by the younger party.
Cases which evidently involve non-consensual sex, violence, manipulation etc or which violate a prior prohibition given by the civil court (see below) will be dealt with under criminal law in a criminal court.
Cases which appear not to involve a crime will be dealt with by a special children’s court under civil, not criminal, law.
If it becomes apparent to the children’s court that a crime may have been perpetrated by the adult the case may be transferred to the criminal court.
A case can be referred to the children’s court by –
“a parent or guardian or a person responsible for the care or welfare of the child, or any other person having reason to believe that the sexual activity was not consented to; or had resulted in clinically demonstrable mental or physical harm or suffering; or involved intimidation, drugs, alcohol, etc. to secure the seduction or procurement of the child …. ” (PIE).
Once a referral has been made the local authority would be responsible for seeking prohibitions. If the parent or guardian were to be responsible for seeking prohibitions the possible financial burden incurred may deter referrals. This would also act as a filter preventing groundless referrals clogging the system.
The children’s court can place a prohibition on the older partner if they determine that the child does not have the capacity to communicate consent (as is the case with children below the age of 4 or some older children with mental incapacities – see below), if the child does not wish the relationship to continue, and/or if the relationship is in not in the child’s best interest.
Children would not need to actually appear before the children’s court (which could also be held in camera). Nor would this involve an adversarial trial: the object of such hearings would not be to
“establish beyond reasonable doubt what occurrences may have taken place in the past”
nor would there be a requirement to prove that sexual activities have taken place or otherwise.
“If the younger partner appeared in the least bit afraid, or doubtful, about the continuance of a relationship, whether sexual or not, or did not appear to be able to communicate her or his feelings to adults, the court would he empowered to prohibit the relationship from continuing“ (Tom O’Carroll)
Evidence can be gathered by a Youth Examiner who could interview the child in in its own home and would act as the child’s representative in the children’s court.
Three age categories are proposed according to the capacity of various ages to communicate consent to the Youth Examiner or the children’s court:
– Children between the ages of 0 and 3 are considered unable to communicate their consent to sexual activities to the Children’s Court or the Youth Examiner (though that does not mean that they can not consent per se). In such cases a prohibition preventing the older partner from seeking out the child would be granted automatically. However it would also be an option for a parent/citizen to bring no complaint providing that they had no reason to suppose the relationship was a non-consensual one.
– Children between the ages of 4 and 9 are considered as having a variable capacity to communicate consent. There will be no prohibition placed on the older partner where it is clear to the court that the child consents to the relationship, benefits from it and wants it to continue.
If no criminal sexual activities are involved, but it is felt that the child cannot communicate its consent to the court, the continuance of the relationship would be prohibited in the same way as a relationship with a child under four.
– Children aged 10 to 17 (10 being the age of criminal responsibility in the UK) are deemed as being wholly able to communicate their consent. Restrictions on mutual and harmless relationships with adults should be minimal.
A separate framework would operate in order to ensure that sexual interactions between children of similar ages would not be subject to the threat of prohibitions (other than where a criminal act is suspected):
There would be three over-lapping age-groups (0-9, 7-13, 10-17).
No prohibitions can be issued to a children engaged in sexual activities with a child in his/her own age-group(s).
For example a child of 4 can freely engage in relations with children between 0-9, a child of 8 with children between the ages of 0-13, a child of 12 with children between the ages of 7 and 17, and a child of 14 only with children between the ages of 10-17.
Note that relationships outside this framework are perfectly licit, but are open to being referred to the children’s court if a responsible adult had grounds for thinking that the relationship was not in the younger child’s best interests.
Tom O’Carroll points out a weakness in these proposals is that they don’t distinguish between different types of sexual activity: a child of five may be able to consent to masturbation with an adult, but can she give prior consent to a man for intercourse if she’s never had intercourse before? Clearly this could result in great pain, possible injury and psychological trauma.
This is probably the root fear that people feel when they think of little children not being old enough to know what they are doing. The child would not be aware of the consequences of penetration. Her consent would not be ‘informed’ about a crucial aspect of the activity she was about to engage in.
Because of this her consent would not be considered as valid and the adult would be guilty of having acted irresponsibly and of engaging in non-consensual sex, and be open to prosecution under criminal law.
But even this is not satisfactory – we can put the man in jail for his selfish and irresponsible act, but this doesn’t undo the suffering of the child. This is a problem which results from PIE’s proposals being retrospective in nature.
Tom O’Carroll suggest that there should be an age of consent for intercourse between an adult and a child, and suggests that the age of 12 would be about right. This keeping in mind that:
‘around 95 per cent of non-aggressive paedophilic sex with children under twelve is non-penetrative’
(Tom O’Carroll – statistic taken from ‘Paul Gebhard et al., Sex Offenders: An Analysis of Types, Harper-Hoeber, New York, 1965.)
“[..O]ne of the key elements in the proposals was that for the very first time they would give the child a say in her or his own sexual destiny. The effect would be liberating, not so much to the paedophile, but to the child. It would be the economically and socially weaker partner in the relationship, the child, whose views would constitute the clinching factor in whether a prohibition against an adult partner would be granted. Not the local authority. Nor the police. Nor any other complainant. And certainly not the paedophile. Not even the parents, for although I do accept that most parents are loving, are concerned, and that their views should be taken very seriously into account, it should never be forgotten that not all parents are all that they should be. The PIE proposals would not give carte blanche to any adult to exploit a child. The criminal law would still be in operation against obvious offences, and the child would be given every opportunity and encouragement to terminate an unsatisfactory and exploitative relationship […] Nor would it be a matter of ‘big brother’ knowing best. Neither authorities nor parents would be allowed to usurp the child’s newly asserted right to control over her or his own body.”
Let’s return to Josh’s questions at the top of this essay and see how PIE’s proposals address them:
“When and if we get there, the biggest obstacle we will face is how we will go about legally discerning what is and is not a consenting relationship?
The answer essentially boils down to ‘ask the child’.
If the child is capable of communicating consent she decides if the relationship continues.
The ‘asking’ would be done by a qualified Youth Examiner. There would be no other adults involved. This is not an adversarial situation – the adult partner has no say in the court’s deciding whether the relationship is consensual or not – all that would count would be the child’s say and his/her wishes and best interest. There is no need to discern the child’s consent to legal standards (though if it becomes clear that the adult may have acted against the child’s consent the case would become a criminal matter).
If the children’s court finds that she is not able to communicate consent (because she is too young or mentally impaired) then the adult would be prohibited from continuing the relationship or may have conditions imposed on the continuation of the relationship.
How will we be able to tell when a relationship is abusive or not? How will we know if a child is being threatened or pressured into saying they consented?
No law can wholly eliminate abusive relationships.
These questions, if applied to PIE’s proposals, really address the issue of how well the children’s court would be able to distinguish between run-of-the-mill cases (where they have to determine a child’s wishes and her capacity to communicate consent) from those where a criminal act may have occurred.
The current system fails by treating all intimacy between children and adults as ‘abusive’ – including the consensual and caring ones – which can give the impression that the majority of child-adult intimacy is ‘abusive’, whereas, there is reason to believe, that only a small minority of such relationships are genuinely abusive. Nowadays those investigating ‘child sexual abuse’ have to concern themselves with anything from a favourite uncle tickling his niece’s bum right to sexually-motivated murder. I don’t know much about this field but I think that separating consensual relationships from abusive ones will clarify matters.
Am I right in thinking that genuine abuse leaves traces – physical, psychological and behavioural – which a consensual affectionate relationship doesn’t? And not having to deal with a huge load of consensual relationships will free-up resources and time for investigators to concentrate on genuine abuse (imagine if sex between adult men and women was made illegal – such a situation would probably increase the incidences of rape and sexual abuse between adults as all sex would become fraught, secretive and associated with criminality – and such abuses would be harder to detect as they would be lost in the mass of consensual, but still criminal, interactions the police and courts would have to deal with).
But a system’s or institution’s openness can be effective in minimising abuse. And giving the greatest power in a relationship to its weakest partner, combined with a positive and empowering process of education and learning, will leave children less vulnerable to abuse and manipulation. Children who are aware of their capacity to give, withhold and withdraw consent and who are knowledgeable about sex will not be as vulnerable as a child who has no knowledge or experience of sex and who has no awareness of their capacity to consent.
But most of all, the children’s court system allows children to be protected from unwelcome attentions before those attentions become criminal. A child does not need to prove that a relationship is abusive for the children’s court to issue a prohibition – all that is required is for the child to wish the adult to leave him or her alone.