Age of consent reform

From Wikipedia, the free encyclopedia

Age of consent reform refers to efforts meant to change age of consent laws. These efforts vary greatly in intensity and popularity, and take five main forms:

  • Legislation for close-in-age exemptions to age of consent laws.
  • Advocacy to change the way age of consent laws are examined in court.
  • Advocacy to raise ages of consent, or increase penalties for violation of these laws, or both.
  • Advocacy to lower ages of consent, or decrease penalties for violation of these laws, or both.
  • Advocacy to abolish age of consent laws (not covered by this article). Some abolitionists advocate lowering of ages as a temporary practical expedient.

Contents

[edit] Close-in-age exemptions

Main article: Age of consent

In some jurisdictions, legislators have included an exemption to age of consent laws to take account of varying circumstances such as sex between;

  • a minor under the age of consent and a much older person,
  • a minor under the age of consent and a person of the same age or older by only a small amount, whether or not under the age of consent, and
  • a minor under the age of consent and another minor under the age of consent.

A number of jurisdictions have adopted close-in-age exemptions in recent decades. See ages of consent legislation for examples.

In a typical jurisdiction with close-in-age exemptions, sexual intercourse between (for example) a 14-year-old and a 21-year-old might be a criminal offense on the latter's part, while sexual intercourse between (for example) two 14-year-olds would not constitute a criminal offense by either party.

Close-in-age exemptions may apply to lower ages as well. In 1976, the British National Council for Civil Liberties published a report presented to the Criminal Law Revision Committee, proposing – among other things – “a minimum age of 10 in circumstances where both partners were over 10 but below 14”. Additionally, “where only one partner was in this age bracket, real proof of consent would be required”, and also “an overlap of two years on either side of 14 was proposed to achieve legal flexibility, such that 12-16 year olds could legally have sex”.[1][2][3] [4]

[edit] Initiatives to change legal procedures

[edit] A shift in the burden of proof

In September 1974, the United Kingdom’s Sexual Law Reform Society proposed a system in which the age of consent would be replaced with what was called an “age of protection” – if not for all ages below the age of majority (18), then at least for the ages between 14 and 18, in combination with an age of consent of 14. People below this “age of protection” (if totally replacing the age of consent) – or between a lower age of consent and this age of protection – would be subject “to a context in which the onus of proof that valid consent existed would lie with the older partner”. [5] [6]

The conclusive presumption (or statutory presumption) that a minor below the age of consent lacks the capacity to freely consent despite any evidence to the contrary was regarded by the British society as a “legal fiction” [7] This view would be replaced by a rebuttable presumption, where proof of actual consent could be a defense, on a case by case basis. [8]

A similar proposal was recommended in May 1974 by the UK’s Campaign for Homosexual Equality (CHE). The CHE’s Working Party on Law Reform suggested a basic age of consent of 16, but 12 “in cases where a defendant could prove the existence of meaningful consent”. [9][10]

This shift in the burden of proof exists today in Uruguay, for ages between 12 and 15. [11]

[edit] Initiatives to raise ages of consent

Legislative initiatives to raise the age of consent have been considered or enacted in Georgia (USA)[12], in Canada[13][14], in Kerala (India)[15], and in other jurisdictions[citation needed].

[edit] Kerala, India

In January 2004, a Division bench of the Kerala's High Court in Southern India suggested that the age of consent should be raised from 16 to 18 in that state. Justice R. Basant said he considered “illogic(al)” that a legal system in which an age of 18 is used for other purposes – like the Indian Majority Act, the Contract Act, the Juvenile Justice Act, the Child Marriage Restraint Act and the Representation of People Act – has a different approach in the case of sexual consent.

[edit] Georgia, USA

In June 2005, a bill was proposed before the General Assembly of Georgia (USA) to raise the age of consent from 16 to 18.[16] The proposal is still being analyzed by local politicians. [17]

[edit] Canada

In June 2006, the Canadian government proposed a bill to raise the age of consent from 14 to 16, while creating a near-age exemption for sex between 14-15 year olds and partners up to 5 years older, and keeping an existing near-age clause for sex between 12-13 year olds and partners up to 2 years older. The initiative also maintains a temporary exception for already existing marriages between 14-15 year olds and partners 6 or more years older, but forbids new marriages like these in the future.[18]

Former Toronto police officer Paul Gillespie said the bill would give police "more tools" in the battle against Internet predators. [19] The alleged intention of the bill is to target “sexual predators” and pimps, although no legal distinction is made to differentiate them from older partners engaged or interested in non-exploitative relationships, or to distinguish between sexual harassment (mainly through the Internet) and normal approaches (generally in the physical world).

[edit] Criticism

This proposal has received criticism from different organizations and individuals. Andrea Cohen of the pro-choice Canadian Federation of Sexual Health (formerly Planned Parenthood) said the organization believes the legislation does nothing to keep youth from harm. “What it will do is infringe upon the rights of youth in terms of their ability to make decisions on their own sexuality", affirmed Cohen on TV.[20]

The Canadian AIDS Society has stated that "increasing the age of consent could result in young people being more secretive about their sexual practices and not seeking out the information they need. This will place youth at an increased risk of contracting HIV and other sexually transmitted infections."[21]

Peter Dudding, Executive Director of the Child Welfare League of Canada, criticized the bill's effect of removing judicial discretion in cases involving 14 and 15 year-olds: "When we deal with arbitrary cut-offs, we lose the flexibility to apply the law in a much more specific and individualized kind of way."[22]

Sue Barnes, a former lawyer and currently a Canadian MP, who is the Official Opposition critic of the Liberal Party of Canada for the Minister of Justice, said that age of consent is not an issue that particularly irritates her voters. Gay rights activists also criticized the bill, because it does not address the issue of equality, maintaining the present age of consent of 18 for homosexual sex. Hilary Cook, spokeswoman for gay rights group Egale believes the bill is “an attempt to score partisan points”.[23]

[edit] Lowering age of consent

Lowering the age of consent is a controversial topic, with many arguments on all sides. Both adults and minors are actively involved in discussing and promoting their viewpoints on this topic.

[edit] Arguments for lowering age of consent

Abolitionists argue that the state grants freedom of religion (or even of non-religion) to all, and that religious principles should not be imposed by the state through the law, and that the issue of consent should be left to individual choice or at least to parental consent. They also state that:

  • the concept of deviance varies from person to person, according to his personality, opinion, culture, or worldview;
  • consensual sex is inherently not deviant, especially when there is love or a romantic relationship;
  • the state should grant freedom of choice to all and not interfere in consensual relations, especially when there is parental consent;
  • laws on child protection are already enforced, such as laws on drinking age and driving age;
  • teen pregnancy is not avoided through statutory rape laws and can be reduced by other means;
  • the state should not overprotect children against their own desires at the cost of sending their loving partners to jail when there is consent

Another opinion is that in the case of most other arbitrary age limits, which have minor penalties, in this case someone can go to prison, so that law should treat cases individually in order to be fair. Some also believe that raising the age of consent increases child prostitution and is in the interests of those who profit from it. The argument is that the demand for sex with those of lower ages would be supplied by illegal child prostitution and child pornography, and also would generate a greater number of hidden relationships. Additionally, it is argued that laws can distinguish between cases of prostitution and non-commercial dates or relationships, punishing clients of prostitutes in a separate clause, as well as pimps and even parents.[24]

[edit] Criticism of lowering or abolishing age of consent

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Please discuss this issue on the talk page.

Most child protection groups strongly oppose the abolition of age of consent laws, saying that although an average age for everyone may be unfair for some, all age limits contain a certain degree of arbitrariness. Many police officers argue that it is more expedient for them when age boundaries are defined and they can identify suspects quickly and arrest alleged child abusers. Many religious people argue that age of consent laws should be influenced by moral principles, and that adolescents and children should not be allowed the chance to engage in sexual relations (especially with older partners) until they reach what they deem as a proper age. Currently, all defendants in statutory rape cases in the US have the right to an attorney, to speak in court, to a fair defense, to present mitigating circumstances, to a fair trial, and to appeal. Therefore, some argue that these age-of-consent laws show a community consensus about these moral principles.

Some believe the state should grant children special protection against behaviors deemed as deviant, and make all efforts to avoid teen pregnancy. They state that children are influenced by the examples given by other children, so that in order to protect all children the families of other children should not be able to give legal consent to sexual relations, especially with older partners, and avoid giving their children too much freedom. Another argument against lowering the age of consent is that it would increase child prostitution, arguing that prostitutes theoretically give their consent to sexual relations (and therefore their clients would be acquitted of any charges), and also that poor parents would be more willing to 'sell' their children to prostitution.

[edit] Initiatives to lower or abolish ages of consent

[edit] Youth rights activists

Americans for a Society Free from Age Restrictions (ASFAR) is an advocacy group which promotes the removal of all age-based restrictions and protections, including age-of-consent laws. This organization contends that people mature differently and that individuals should be treated on a case-by-case basis, similar to what courts do when determining if an individual is in possession of all his faculties and able to give informed consent.

The ASFAR’s Declaration of Principles (item 9.4), states that:

"Laws invalidating sexual consent purely on the basis of age should be repealed. ASFAR also supports initiatives to clarify the legal definition of rape to distinguish between informed and uninformed consent, where uninformed consent must be established in a court of law and not on the arbitrary basis of age"[25]

[edit] Pedophile activism

Main article: Pedophile activism

Some pedophile activists argue that at least some prepubescent children are able to give actual consent to sexual acts, and that adult-child sex does not necessarily involve child sexual abuse. They defend the abolition of age of consent laws, or their progressive reduction until ages below puberty.[citation needed]

On May 31, 2006, the Party for Charity, Freedom and Diversity (PNVD) was founded in the Netherlands, and presented a platform that includes the eventual abolition of age of consent laws. PNVD agrees that cases involving violent rape or coercion should be punished by law.

PNVD is also seen as the political arm of Vereniging MARTIJN, a Dutch pedophile organization. Marthijn Uittenbogaard, chairman of PNVD, is the current treasurer of Vereniging MARTIJN, and other party members have identified as pedophiles.[citation needed]

[edit] French intellectuals' manifestations against age of consent laws

1977-1979 petitions

Main article: French petitions against age of consent laws

In 1977, while a reform in the French penal code was under discussion in the parliament, a petition was addressed to the parliament calling for the abrogation of several articles of the age-of-consent law and the decriminalization of all consented relations between adults and minors below the age of fifteen[26][27] (the age of consent in France). The document was signed by the philosophers Michel Foucault, Jacques DerridaEnglish citation requested and Louis AlthusserEnglish citation requested and the pediatrician and child psychoanalyst Françoise Dolto and also by people belonging to a wide range of political positions.[28]

Additionally, two open letters were published in French newspapers, asking for the release of specific prisoners with charges of statutory rape - the first one [29] in Le Monde (January, 1977), signed by 69 people, and the second [30] in Libération (March, 1979), signed by 63 people.

1978 radio conversation

Main article: Sexual Morality and the Law

On April 4, 1978, an extensive conversation detailing the reasons for their pro-abolition positions was broadcast by radio France Culture in the program "Dialogues". The participants, Michel Foucault, play-writer/actor Jean Danet and novelist/gay activist Guy Hocquenghem had all signed the 1977 petition addressed to the Parliament.

[edit] British manifestations to lower the age of consent

Main article: British manifestations to lower the age of consent

Since the 1970s, a number of actions took place in Britain in favor of lowering the age of consent, either on the grounds of claims for children’s rights, gay liberation, or, more recently, “as a means to avoid unwanted pregnancies, sexually transmitted infections (STI’s) and ‘bad sex’ via education and health promotion”.[31]

Sociologist Matthew Waites, author of The age of Consent – Young People, Sexuality and Citizenship, observed that:

“By the mid-1970s the case for a lower minimum age for all was finding wider support, with questions being posed concerning the merits of lowering the legal age for male/female sexual behaviour – not only within grassroots sexual movements, but also within religious organisations and liberal intellectual circles.[32]

(…)[Contemporarily,] “significant sections of liberal opinion in the political mainstream, including prominent campaigners for children’s interests and sexual health, support at least some selective decriminalization of sexual activity between young people under 16”.(…) More generally in academic work, particularly in sociology, writing on sexuality from various perspectives has questioned the extent of prohibitions on sexual activity involving children. [33]

The modern Communist Party of Great Britain lists among its immediate demands "the abolition of age-of-consent laws."[34]

[edit] Authors

  • John Holt

John Holt, an American teacher and author of Escape from Childhood – The Needs and Rights of Children, believes that “all people, including young people, should have the right to control their own private sex lives and acts”. He considers that “it is not the proper business of the state or government to pry into such matters”. While defending that children should be given the same rights and citizenship of adults, he observes that until this happens and unless children are legally emancipated, parents should at least be able to forbid their children to have sex at (their) home.

Holt refutes the concept of child innocence:

“Many of us (…) still believe and need to believe that children are ‘innocent’ and ‘pure’, that is, asexual, untainted by sexual thoughts, feelings or urges. There is increasing evidence that this is not true even of very young children, and it is certainly not true of children much past the age of ten or eleven”.

He sees laws on age of consent as unfair and morally wrong, and firmly opposes them:

“For the state to deprive someone of liberty by putting him in prison is a most serious act. (…) It can only be justified by the most weighty cause, that the prisoner did real harm to others. But to make the act of sex, the mutual giving and receiving of pleasure, the excuse for putting someone in prison seems both mistaken and morally wrong”.

Judith Levine

Judith Levine, an American journalist and author of Harmful to Minors: The Perils of Protecting Children from Sex, is against the legal regulation of children’s involvement in sexual activities. The thrust of her argument is towards abolition:

“Legally designating a class of people categorically unable to consent to sexual relations is not the best way to protect children… Criminal law which must draw unambiguous lines, is not the proper place to adjudicate family conflicts over youngsters sexuality”. [35]

Levine suggests that, if such laws are to exist, an appropriate model would be the legal framework that existed in the Netherlands during the 1990s, now abolished, which required a complaint from a parent or other authority to pursue a prosecution where 12-15 year olds were involved. [36] [37] [38]

Miranda Sawyer

British journalist Miranda Sawyer maintains that the age of consent should be lowered to 12 in the United Kingdom, arguing that the criminalization of all sexual activity for ages under 16 is “laughably unrealistic”.[39][40] Her background is in journalism on music and youth culture, and, according to author Matthew Waites, she can be seen as someone who “subscribes to a version of feminism” that emphasizes women’s autonomy instead of protection.[41] She observes that “we have sexual feelings from a very early age” and regards sex as a “natural behavior”.[42]

[edit] Polls

[edit] Channel 4, UK

On November 16, 2003 Channel 4 broadcast a programme; "Sex Before 16: Why the Law is Failing"[43] and afterwards conducted a phone poll of its viewers in the United Kingdom[44].

Of the 3366 respondents to the four options;

  • 34% thought the age of consent should be reduced to 14
  • 35% thought it should stay at 16
  • 13% thought it should be raised to 18
  • 18% thought it should be abolished

[edit] See also

[edit] References

  1. ^ Waites, Matthew (2005, p.135-136). The age of consent – Young people, Sexuality and Citizenship. New York/London: Palgrave MacMillan. ISBN-13: 978-1-4039-2173-4. ISBN-10: 1-4039-2173-3.
  2. ^ The author Matthew Waites does not specify if this same rule would also apply to sex between 10-14 year olds, 11-15 year olds, and 13-17 year olds.
  3. ^ Sexual Offences: Evidence to the Criminal Law Revision Committee, NCCL report no. 13, February 1976, p.6 (London: National Council for Civil Liberties).
  4. ^ The General Secretary of NCCL at the time of the report’s publication was Patricia Hewitt, formerly (2001-2005) Secretary of State for Trade and Industry, and Minister for Women and presently Secretary of State for Health, both under Tony Blair’s government. Harriet Harman, Solicitor General in the Tony Blair Administration, also worked for the NCCL.
  5. ^ WAITES, Matthew (2005, op.cit., p.132).
  6. ^ Sexual Law Reform Society, 1974. Report of the Working Party on the Law in Relation to Sexual Behaviour. “in” Antony Grey papers, file 2/1, at Hall Carpenter Archive, British Library of Political and Economic Sciences, London.
  7. ^ GREY, A. (1997, p.45). Speaking Out: Writings on Sex, Law, Politics and Society 1954-1995 (London: Cassell). Cited by Waites, Matthew (op.cit., p.132).
  8. ^ Unlike the conclusive presumption of statutory rape laws, in most other criminal cases the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a resonable doubt) and to disprove all the defenses. In a rebuttable presumption scenario, by contrast, the burden of proof is placed upon the accused, who has then to prove his innocence.
  9. ^ WAITES, Matthew (2005, op.cit., pp. 132 and 243, Note 6.6)
  10. ^ Gay News, no. 46, 9 May 1974, p.3 – ‘CHE Report angers reformers’.
  11. ^ Source: Uruguayan Penal Code (in Spanish), articles 272, 1, and 267. See also Ages of consent in South America.
  12. ^ http://www.legis.state.ga.us/legis/2005_06/fulltext/hb722.htm
  13. ^ http://www.foxnews.com/story/0,2933,200691,00.html?sPage=specialsections.foxnews/lawcenter
  14. ^ http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060622/age_consent_060622/20060622?hub=CTVNewsAt11
  15. ^ http://www.asiansexgazette.com/asg/south_asia/southasia03news67.htm
  16. ^ The House Bill #722 was presented by Representatives Forster (3rd District), Rice (51st District), Cooper (41st District), Randall (138th) and Walker (107th), among others. See http://www.legis.state.ga.us/legis/2005_06/fulltext/hb722.htm
  17. ^ http://www.legis.ga.gov/legis/2005_06/search/hb722.htm
  18. ^ http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060623/age_consent_faq_060623/20060623/
  19. ^ http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060623/age_consent_faq_060623/20060623/
  20. ^ She talked on CTV Newsnet's “Mike Duffy Live”. Source: http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060622/age_consent_060622/20060623/ .
  21. ^ http://www.cdnaids.ca/web/position.nsf/pages/cas-pp-0298
  22. ^ http://www.macleans.ca/canada/national/article.jsp?content=20060701_130213_130213
  23. ^ http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060622/age_consent_060622/20060623/
  24. ^ In Brazil, for example, where age of consent is 14, parents can lose their power as legal guardians and establishments have mandatorily their licenses invalidated in cases of child prostitution. See Brazil’s Children and Adolescents Statute (in Portuguese) – articles 244-A (child prostitution), 238 (selling of children), 129 – clause X (lose of power as legal guardian).
  25. ^ http://www.asfar.org/declaration/
  26. ^ http://www.decadi.com/dignaction/Fpetit.html
  27. ^ Foucault, Hocquenghem and Danet are referenced several times as petitioners in the Michel Foucault’s text “Sexual Morality and the Law” (see online version in English). The name of Françoise Dolto and the term “people belonging to a wide range of political positions” are mentioned on page 273 of the same text (see also the online version). The names of philosophers Jacques Derrida, Louis Althusser and André Glucksmann comes from the Dignaction.org website (in French).
  28. ^ http://www.decadi.com/dignaction/Fpetit.html
  29. ^ http://www.ipce.info/ipceweb/Library/00aug29b1_from_1977.htm
  30. ^ http://www.decadi.com/dignaction/Fpetit.html (French)
  31. ^ Waites, Matthew. The Age of Consent – Young People, Sexuality and Citizenship (2005, op.cit., pp. 122 and 220).
  32. ^ Waites, Matthew (2005, op.cit., pp. 132-133).
  33. ^ Waites, Matthew (2005, p.220).
  34. ^ http://www.cpgb.org.uk/documents/cpgb/prog_demands.html
  35. ^ LEVINE, Judith. Harmful to Minors: The Perils of Protecting Children from Sex, p. 88. Minneapolis: 2002. University of Minnesota Press. ISBN 0-8166-4006-8.
  36. ^ WAITES, Matthews. The age of consent – Young people, Sexuality and Citizenship, p. 221. New York: 2005. Palgrave MacMillan. ISBN 1-4039-2173-3.
  37. ^ LEVINE, Judith (op. cit.), p. 89.
  38. ^ A similar model exists today in Brazil, where a complaint from a parent is necessary to prosecute cases where the minor is above the age of consent (14) but below the age of majority (18) (source: articles 218 and 225 of the Brazilian Penal Code - in Portuguese).
  39. ^ She stated her position in the UK’s Channel Four documentary Sex before 16: Why the Law is Failing (16 November 2003, 9-10 p.m.).
  40. ^ SAWYER, Miranda. Newspaper article – ‘Sex is not Just for Grown-Ups’, The Observer, 2 November 2003, Review section, pp.1-2.
  41. ^ WAITES, Matthew (2005, op.cit., p. 221-222)
  42. ^ SAWYER, Miranda. ‘Sex is not Just for Grown-Ups’ (op. cit.), p. 2.
  43. ^ http://www.channel4.com/health/microsites/A/adultat14/links/credits.shtml
  44. ^ http://www.channel4.com/health/microsites/A/adultat14/consent/aoc_vote.shtml

[edit] Further reading

  • HOLT, John. Escape from Childhood – The Needs and Rights of Children. E.P. Dutton & Co., Inc.: New York, 1974; Clarke, Irwin & Company Ltd., Toronto/Vancouver, 1974. ISBN 0-525-09955-7
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