the era of age and sexual consent: the problem
The legal age of discernment/consent is subject to a fast paced race to the bottom. Yet increasingly scientists step forward with a variety of research proving it actually should go the other way.
The debate is lively on social media. Those who call to continue lowering the age of consent, and those who advocate for the opposite cross swords. The gun point arguments of most are undoubtedly originating in passionate belief in their perceived best interest of the child.
But one can not turn a blind eye as to what this quest of definition de facto does. It creates a distortion of what age of consent truly (should) mean(s), forgetting who is at its centre, and why. It gets under my skin how people who have never been victim of child sexual abuse opinnionate, and so I have to write.
definition of age of exploration, discernment, competence, consent, ...
The notion of legal adulthood is throughout the world mostly set at 18 years old. Before you are a child. After you are an adult.
Virtually all countries criminalise as child sexual abuse any sexual acts before the legal age of adulthood.
Yet, in an incomprehensible twist, the legal age of exploration, discernment, competence, and consent for sexual conduct is subject to a race to the bottom, and does not (no longer) reflect the legal age in the vast majority of the world.
Out of the Shadows has compiled an excellent overview of global law and data, showing how bad the situation actually is. It is not because countries are party to conventions, that the age of consent across the world is of any intelligible coherence.
Arguably, the vocabulary used in law and praxis is anything but conductive to clarity, and subject of interpretation and debate, hollowing out the otherwise clear and strict adulthood limit.
I attempt to clarify, dictionary at hand, in the given context of child sexual integrity violations:
- Exploration = to investigate, study, or analyze. To become familiar with by testing or experimenting.
- Discernment = the quality of being able to grasp and comprehend what is obscure. An act of perceiving or discerning something. Not only fully knowing, but fully understanding all consequences and accountability implications.
- Competence = the quality or state of having sufficient knowledge, judgment, skill, strength. Deemed ability to execute acts in discernment.
- Consent = fully and freely agreeing to an act whilst being in discernment of them.
- Abuse = any voluntary control or influence on consent or discernment.
The legal age associated to each is differentiated by field, such as marriage, medical, political, psychological, sexual, voting, ... In addition, law may differ substantially from rules and praxis in society.
Notions of coercion, empowerment, abuse, criminality, ... are layers of excelling complexity surrounding a seemingly fixed concept that adulthood is (or is not) at 18.
The main argument to lower the age of consent for children to engage in sexual conducts by experts saying children will explore their sexuality long before the legal age, and puberty increases this exponentially. Biologically we are capable of procreation at an increasingly young (marketed) age. While these are valid stand-alone arguments, it wrongly fuels the rat-race to lower the age of consent for sexual acts.
On our planet the legal age of consent for sexual behaviour today ranges from 11 to 21. For most European states the limit is 14 years old. No European state sets the limit at 18, the presumed adulthood.
In various child rights fields children have legally reached the age of discernment long before. As an example, Switzerland:
- 18 years old = the law age of adulthood
- 16 years old = the law age of sexual consent
- 10 years old = repeatedly confirmed federal jurisprudence age of general capacity of discernment, used by courts to empower children to make their own life decisions
- younger = jurisprudence possibility of capacity of discernment subject to examination
In the current global situation the question is not if the next sexual activity age reduction in law will be defined. The question is when. I speak of this as deplorably criminal.
the quest of law: loosing all common sense concerning child sexual abuse
I posted about an important example before.
The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.
The report is called The 8 March Principles
It advocates for the decriminalisation of child sexual abuse and lowering the age of consent:
Moreover, sexual conduct involving persons below the domestically prescribed minimum age of consent to sex may be consensual, in fact, if not in law. In this context, the enforcement of criminal law should reflect the rights and capacity of persons under 18 years of age to make decisions about engaging in consensual sexual conduct and their right to be heard in matters concerning them.
Pursuant to their evolving capacities and progressive autonomy, persons under 18 years of age should participate in decisions affecting them, with due regard to their age, maturity and best interests, and with specific attention to non-discrimination guarantees.
The public disagreed loudly, both in social media and the press.
On April 20th 2023 the ICJ defended itself
The 8 March Principles do not call for the decriminalization of sex with children, nor do they call for the abolition of a domestically prescribed minimum age of consent to sex. Indeed, the ICJ stresses that States have a clear obligation under international law to protect children from all forms of abuses, such as child sexual abuse, including through the criminalization of such conduct.
Then why call to decriminalise it? It would appear many people misread(?) the report. This whilst the report is:
... aimed at offering a clear, accessible and operational legal framework and practical legal guidance to parliamentarians, judges, prosecutors and advocates to address the harmful impact of criminalization of certain conduct on health, equality and other human rights. They are based on general principles of criminal law and international human rights law and standards.
Now, if the report is aimed at offering clear, accessible and operational legal framework and practical legal guidance to parliamentarians, judges, prosecutors and advocates, then it surely, dangerously, argued the opposite.
I argued to rewrite as:
sexual conduct between
involvingpersons below the domestically prescribed minimum age of consent to sex, who have similar age and the maturity to understand what consensual non exploitative sex is, may be consensual
But that is before which prescribed minimum age of consent to sex? 14?
Since this report, lawmakers have been active to criminalise child sexual abuse material online in a global initiative. A well meant frenzy providing to neglect the root of the problem and the vast majority of child sexual abuse cases.
end of part 1 of this 2 part series
- part 1 { the era of age and sexual consent: the problem }
- part 2 { the era of age and sexual consent: a path to solution }
A shorter edited version is also available at HAVOCA.
A lie gets halfway around the world before the truth has a chance to get its pants on.
This blog gets the proverbial pants on!
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