December 26th, 2003
|10:06 pm - Thinking the unthinkable|
Some of you are likely to be far more expert on this than me, so I look forward to learning from you. Besides, it's fun to play Fantasy Policy Wonk and dream of influencing the real policy wonks.
What would be the consequences of an administration setting a lower age of consent for non-reproductive sexual acts than for reproductive sexual acts?
I haven't reached a conclusion on this yet, let alone whether an opinion as to whether the consequences would be desirable or not, but I think it's a question worth considering. (I would like to regard the issue of what the age[s] of consent should be as separate; I have no interest in those currently below the age of consent, not even by redefining them as able to consent.) Here's my working so far. Please help me see the other sides of the argument!
The question of whether there should be an age of consent at all should be addressed. My own opinion on this is summarised well by this concise expression by the Executive Director of the Canadian Alliance for the Rights of Children: [...] unlike adults, children require dual recognition as citizens deserving equal rights and as a vulnerable group requiring extended protections. Generally, as children grow older there is an expectation that they will be held more accountable for their actions and in return receive greater privileges.
It can be argued whether or not consensual sexual acts at any age can ever effectively be criminalised; if truly consensual, then they are a victimless crime. There is definitely merit in the concept that the very young are not in a position to give informed consent and I think we can all agree that non-consensual sexual acts are heinous crimes, whatever the age of the victim. Picking an age at which people can be deemed capable of giving informed consent is inherently arbitrary, but the UK (and, I presume, many other countries) have a concept whereby children under a certain age are not deemed capable of understanding why an action they might have committed is criminal and why they should take responsibility for it. Whether this law is appropriate or effective in practice is another matter (see school firesetting debates) which I do not intend to cover here.
Nevertheless, if you are prepared to accept a minimum level of maturity being required to accept the concept of responsibility for your own actions, and if you are prepared to accept the concept that fixing a flat minimum age requirement is a reasonable way of attempting to put an effective implementation of that requirement in place, the leap to do a similar thing for an age of consent regarding sexual acts is a clear one. Bear in mind that a minimum age limit isn't the only tool conceivable, even if it may be the only tool practicable; in theory, perhaps there could be a requirement to demonstrate responsibility for ones actions in a similar fashion to the driving test. Sounds silly? Well, we're happy to detain those with severe mental health deficiencies, whether for their own safety or to protect the community; perhaps this is a similar sort of responsibility test with a very low requirement.
The concept behind setting different ages of consent revolves around a contention that you do not need to take as much responsibility for non-reproductive sexual acts as for reproductive ones, where there is no risk of pregnancy in the former case and a present risk of pregnancy in the latter case. Of course, these are not the only issues at work, because sexual health is another important factor; many non-reproductive sexual acts can transmit diseases as readily as reproductive ones, so part of the requirement for an age of consent is to take responsibility for their and their partner's sexual health. Both sexual disease and unwanted pregnancies are a burden on the entirety of society, as well as to those who are personally effected.
One argument in favour of such a move would be to change the emphasis of some sexual education schemes in schools; a full education would not simply concentrate on the reproductive aspects of sexual acts and would acknowledge, if not necessarily be didactic or practical about, non-reproductive ones. Such a change in educational practices would hopefully serve to slowly sweep a wave of increasing open-mindedness and variety in sexual technique throughout the nation among those who have been given such a varied education. This alone cannot guarantee people having more or better sex, but the mental health benefits to the country of people having more or better sex could be considerable. It is not clear to suggest whether such a move would cause substitution of reproductive heterosexual acts with non-reproductive heterosexual ones in practice, but official acceptance through legality (and subsequent changes in the cultural acceptance of different sexual practices, often as shaped by the mass media) should send a powerful message.
It is also relevant at this point that such a move would necessarily treat homosexual and heterosexual non-reproductive sexual acts equally. This would be a powerful weapon against homophobia, which would again hopefully serve to increase the open-mindedness of the nation.
This may be a stumbling-point for many and would doubtless cause strong lobbying against the move from religious lobbies. I do not claim to know every religious tradition's views on sexuality, but I am prepared to believe the existence of religious traditions who either firmly believe that (a) the only acceptable sexual acts are reproductive ones for the only function of sex is reproduction or (b) that heterosexual sexual acts are acceptable in a way that homosexual ones are not. I don't wish to ascribe these views to any religion specifically, not least because error here would risk offence, but I would be very pleasantly surprised indeed to hear that no religious tradition subscribes to either view. The issue of whether religious tradition has any place in legislation or not in general is not one I intend to cover.
We also would need to provide more accurate definitions for reproductive and non-reproductive sexual acts. It is clear that coitus (penis-in-vagina sex) without any sort of contraception is a reproductive sexual act; is there a point at which contraception, whether through use of prophylactics or alternative sexual practices, becomes sufficiently effective that the sexual act becomes non-reproductive? Alternatively, are there any sexual acts which might not be able to be definitely described as either reproductive or non-reproductive? This could potentially be an area so difficult as to make the legislation ineffective. A naive demarcation line would be whether a penis enters a vagina, regardless of whether contraception is used or not, regardless of whether internal ejaculation occurs or not, but artificial insemination exists as fact today and I am not prepared to rule out the possibility that other similar advances may exist in the future.
Defining non-reproductive sexual acts, and which events may require external agents to give consent, may be harder still. (I'm thinking of issues of exhibitionism with the latter.) A modern viewpoint is that the extent to which an act is sexual or not depends upon whether the participants view it as sexual or not, rather than whether any particular bodily organs are involved. There may need to be a lower limit set; it may not be desirable (let alone possible) to legislate for - to give but one example - growing teenage boys sharing watching Baywatch or Tomb Raider together as a very low-level sexual act. Equally, the modern interpretation that people may start to sexualise and fetishise objects and concepts at a very young age means that even very young couples may start to enjoy experiences in what is an intensely sexual context for them which the rest of the world may not be prepared to consider to be sexual at all.
Nevertheless, I think it is likely to be possible to identify the majority of overtly sexual, genitalia-focused non-reproductive acts and probably the very vast majority of those which might engender a risk of transferring a sexually transmissible disease. These surely represent a higher risk to the community at large than those which do not.
Lastly, there is the issue of what changing attitudes to sexuality might do to the behaviour of the nation in other ways. Would a nation more comfortable and practiced with non-reproductive sexual acts have better health, lower crime or higher productivity than one which did not? Might a decrease in emphasis on reproductive sexual acts lead to the collapse of the traditional family unit as we know it and a plummeting birth rate? (If so, would this be a bad thing?) Are we excessively irresponsible as a nation already and should we be looking to changes to increase the amount of responsibility that people habitually take for their actions? Completely beyond me, I'm afraid. :-) My naive interpretation - though not nearly a conclusion - is that the potential good points outweigh the bad, but I'm definitely looking for alternative and informed viewpoints on this one.
Current Mood: lousy earlier, cheerier now
Current Music: nada
Ahem. *adjusts glasses* Where were we?
Interesting, as always -- yet my gut reaction is cautious and negative, and I'm trying to tease out why, to see if it's a legitimate reaction.
One clarification -- I could be wrong about some jurisdictions, but my impression is that ages of consent are not so much about barring or prohibiting sexual activity per se, as they are about preventing sexual contact between young people and adults. In New York, for instance, the age of consent law only applies (I believe) where there is more than a three-year age gap between the parties. There are probably nuances to this and maybe different approaches in other locations, but I think it's a fairly common rule. So in general, I don't think the law actually criminalizes sexual experimentation among adolescents as it stands now -- your proposed law would actually be more intrusive and coercive than the status quo in many cases. Consequently, the argument about responsibility may be not quite applicable -- it's not like getting the keys to the car, as the state does not presume to license one's body for sexual use in the first place so much as narrowly punish exploitation by significantly older persons.
The distinction between procreative and non-procreative sex is I think currently addressed indirectly by the civil law -- pregnancy and the birth of a child create a financial obligation for the male involved, as well as obvious multiple burdens for the woman. Of course, a great deal of sex education currently works with some (but perhaps not with extraordinary) success to induce a healthy fear of these obligations.
If we bring the age differential back into the picture, a distinction between procreative and nonprocreative sex would seem a bit off the point. If the purpose of age-of-consent laws is to prevent psychologically harmful exploitation of young people by adults, you wouldn't necessarily want to carve out a loophole for nonprocreative sex, because it's hard to make a distinction that one is abusive and the other is not. Yes, it might compound the injury if someone ended up pregnant, but it's not necessarily a case of either/or.
So I guess my skepticism about your argument is, that the only way your proposed law would represent a change on-the-ground is if it tightened regulation of consensual sexual behavor among young people who are age-peers. And this strikes me as a fundamentally reactionary move (if not a pragmatically doomed one), even if it's in the service of an improving lesson. It also seems to make an unnatural and niggling distinction among parts of the full spectrum of sexuality that people may be exploring -- I can't imagine that concern about a legal distinction is going to outweigh more pragmatic concerns about preventing pregnancy.
Sorry I can't engage this more positively -- your piece is provocative as always, but it feels like a solution in search of a problem. And perhaps, it feels like a bit of a polemical jab against sexual prudes -- with nothing to be gained on the ground, since the young people involved need no lead from the law to explore alternatives to procreative sex. Probably not a wise strategy to take in the legal regulation of sexual behavior.
I raise your "Yay! Blowjobs!" to a "Mmm! Muff-diving!"
(Repost, turning all the <s I posted first time into <s instead.)
I can now understand why this may be unnecessarily puzzling to US American eyes; it may well be more of a British problem than one which applies in the US. :-)
Here's what I believe the British law to be
- and if that isn't a reliable source, I will pay the consequences. I believed there to be a flat minimum of 16, regardless of the age gap between the partners; looking at it again, the 11/15/99 mail suggests that male(13<age<16)/female(16<age) may be legal, though every other source I've seen suggests either age being <16 leading to illegality. Accordingly, while I have no qualms with your first four paragraphs, they're relevant to a slightly different discussion. (Which, I accept, may well be a more relevant discussion to the wider scheme of things in practice, but isn't the discussion I want to have in this thread.)
As an aside, I did enjoy the quote from Sexual Offences (Amendment) Act 2000 Chapter 44 quoting the flowery legal language still in use today - BE IT ENACTED by the Queen's most Excellent Majesty
. I haven't heard that form of speech since... well, Bill and Ted
this afternoon on Channel 4.it feels like a solution in search of a problem
You might well not know this, but Britain has what many people consider to be a large problem with underage and teenage pregnancies. I'm not sure how our rates compare to the US; the only figure I can find is (bottom of this page) over 8 pregancies p.a. per 1000 girls age<16
from a few years back. Another article suggests The UK has the highest rate of teenage pregnancy in western Europe, twice that of Germany, three times higher than France and six times that of the Netherlands.
That stat might be 13<age<20 or it might be 13<age<16; it's unclear.
I perceive the issue to be broadly thought of as a problem in the UK; while I don't claim omniscience on this issue, the only source I've seen suggesting lowering both ages of consent is Peter Tatchell, calling for equality at 14, not equality at 16
on human rights grounds. This is crossing into territory that I feel is more relevant in terms of what the age(s) should be, not whether there should be multiple ages.since the young people involved need no lead from the law to explore alternatives to procreative sex
I do not share your confidence in the standards of quality and variety of British sex education, whether formal from schools or informal from the media, or the quality and variety of British sexual practices.
Additionally, I am not yet convinced that this move would be a good thing; at this point, I'm more interested in what the consequences would be most likely to be in practice, from which I might make a more informed conclusion.
Re: I raise your "Yay! Blowjobs!" to a "Mmm! Muff-diving!"
Pardon the random incoherent thoughts, I just woke up, etc. Also pardon fragmented sentences, half-thoughts, poor grammar, and whatever else I may happen to mess up here. Just look at my general message, heh.
I may not understand fully the topic being debated, but my personal belief is that ANY governmental intervention in personal lives is a bad thing. I would even go as far as to say, that, maybe consent age laws should be repealed altogether. The government needs to get out of personal affairs; most specifically, sexual relations with others.
I will not, however, go as far as to say that there shouldn't be one law as a 'general rule' law: if it is found out that an older person is exploiting a younger person, then they can be taken to court and tried under the "general sex rule law" and a judge would then be able to determine whether or not the exploited party was actually consenting or not, yada yada yada.
In the USA, 30 years back or so, Roe v Wade was a landmark case ruling in favor of pro-choice supporters. Despite those who disagree with this ruling, the current law-making trend is a very leftist one. Just last year, the Supreme Court ruled that sodomy is legal as long as it is two consenting adults in private (their house, apartment, etcetera). Recently, three states have legalized (legalized?) homosexual marriages. Many states have considered repealing consent age laws (although no motions have actually passed). A few states even have consent laws where the AOC is FOURTEEN. What is the current trend of legislation here? Getting the government out of our sexual lives. The government has absolutely no place there, and it is about time they got out.
I do not know, nor do I intend to imply that I know, the laws of the UK on this issue, nor do I know the current legislation trend for you all. All I am saying is that, in my eyes, the less government intervention (at least on the topic of sexuality), the better. I believe it, the state governments of New Hampshire, Vermont, and (one other state I cannot remember) believes it, the state of Hawaii believes it, and 5 members out of 9 on our own Supreme Court believes it. I cannot fathom why anyone else would not, indeed, believe it.
That is all.
My original intention was to post a long-ass LOLOLOLOL etc. about your topic in your reply, "I raise your BJ. . ." but then I realized that would be dumb and stupid and not the intellectual thing to do. What did I do instead? I wrote a half-ass "essay" and then posted LOLOLOLOLOL below it. Haha, I am so weird.
Chris, we're going to work together for Quid at Nimbus 2005, mmkay? Good.
Re: I raise your "Yay! Blowjobs!" to a "Mmm! Muff-diving!"
Also pardon fragmented sentences, half-thoughts, poor grammar, and whatever else I may happen to mess up here.
Dude, I'm not going to be grading you here. :-) This isn't a formal debate; I'm not sure even what my own position is, just that I think that one contention may well have some points in its favour (as well as points in its disfavour which I haven't yet really considered).
As for your contentions between the stars, they are entirely respectable and defensible on a point of principle. Not one that I happen to share or that I particularly want to consider here, but definitely defensible. (As ever, it could well be the case that your issue is more important to the world at large than mine, but I only want to look at the single issue at the moment.)
Good (and good bad) jokes about sex will always be cool in their place. I have to wonder whether there exists even a single lady who habitually refers to cunnilingus as muff-diving, though - it could well be a very male term for it.
Quidditch: I had you mentally pegged as a player rather than an organiser at The Witching Hour; I would have very strong reservations about a particular individual trying to do both. What's the state of play, so to speak, about Quidditch at Convention Alley, please?
|Date:||December 27th, 2003 04:35 am (UTC)|| |
Re: I raise your "Yay! Blowjobs!" to a "Mmm! Muff-diving!"
I believed there to be a flat minimum of 16, regardless of the age gap between the partners;
Very interesting -- although as I read your cites, the law seemed confusing; at one point, one of the laws seems to exempt men under 24, which is more generous than our laws. UK law also seems to permit a positive defense -- "I didn't know he/she was underage!" which our laws notoriously do not!
If the age of 16 is an absolute one, then I can see where there would be a significant difference in reaction to your proposal based on the two philosophies of "age of consent" (absolute vs. protection of younger from older.) Thinking back to high school, not that I was getting much, but the idea that the law had any say in the matter would have seemed shocking. That is perhaps why I cannot imagine younger people taking a legal distinction between types of sex at all seriously in regulating their behavior, or creating incentives. This might be my blind spot.
Britain has what many people consider to be a large problem with underage and teenage pregnancies.
Oh the U.S. does as well -- I don't know how they compare but I suspect we're at least as bad. I guess when I used the term "solution in search of a problem" I didn't mean that there was no underage pregnancy problem, just that I didn't feel the force of the connection between the proposal and the problem. Probably because I dismissed the idea of legal incentives for teenagers to change sexual behavior (because of the U.S. age-of-consent practice.) I still think that if the threat of pregnancy isn't enough of an incentive, a legal distinction that would in practice almost never be prosecuted isn't going to have much of an impact. And I guess I took the thrust of your proposal (no pun intended) to be more about encouraging alternatives to procreative sex than penalizing underage procreative sex itself.
I do not share your confidence in . . . the quality and variety of British sexual practices.
Whenever I feel embarassed at some reactionary thing done in the name of my country, I take pride in the fact that American youth lead the world in their fondness for oral sex. I'm serious, there are studies -- we even put les Francais to shame! It is a commonplace of high-school lore that oral sex does not count as loss-of-virginity. Bill Clinton didn't make his argument in a vacuum, after all. It's a cultural thing! (BTW, I think Americans often get a bum rap as Puritans, when actually our main Puritan legacy is that we feel a need to discuss and justify things to death -- actual practice is fairly libertine and much more tolerant than the noisiest advocates would have one believe, as long as other people are not expected to actually approve.)
Although I suppose someone can now make the connection between American orality and obesity . . . .
Anyway, because of this I can't speak to your point about the quality and variety of UK sex education or practices. I just don't know what the facts are. I guess in general, I agree that a more relaxed attitude toward sexuality probably encourages more detatched and mature and responsible behavior. The Dutch statistics provide a great example. So the encouragement of non-procreative sex would be a good thing, on the whole. But I tend to think this would have to be addressed at a cultural level, rather than a narrowly legal one -- it would have to involve education, but it would also need to well up from opinion leaders and other sources.
I think it is a mistake to treat statutes as leading drivers of culture (they are more likely to lag, I think, and not to be taken seriously if they are out of step with actual practice.) I come back, again, to the image of two kids consulting Her Most Excellent Majesty's enactments before deciding what they may and may not do, and I just don't find it plausible. It seems more likely to me that the attempt to codify a message about sexual experimentation in the law will simply inflame the reactionaries and end up being counterproductive.
|Date:||December 27th, 2003 06:47 am (UTC)|| |
Re: I raise your "Yay! Blowjobs!" to a "Mmm! Muff-diving!"
Oh the U.S. does as well -- I don't know how they compare but I suspect we're at least as bad.
Far worse. Family Policy was one of my topics last term - the USA has twice the teenage pregnancy rate of the UK, and the UK has several times the rate of many European countries.
Regarding our AOC laws: I believe that the "I didn't know he/she was underage!" defence is applicable for 13-15 years olds; below 13, it is considered statutory rape.
2 of the things to consider in designing laws is whether or not they are enforceable, and whether they will be followed. Criminalisation of sex between 15 year olds has little to no effect. But criminalistaion of sex between a 13 year old and a 20 year old will make many 20 year olds think twice. I'm all for relaxation of age of consent in favour of age difference laws.
Also, what must be explicitly addressed is what social aims AOC laws should have; whether these aims are valid for the state to pursue; and whether the laws developed adequately address these social aims. What should aims be? To lower teenage pregnancy, especially at younger ages; to prevent exploitation (these two are surely axiomatic); and to prevent the spread of STDs. SexEd and various non-intrusive government programs can cover the third, and to a great extent the first. I believe that some 'age difference' and specifically exploitation-targeted system of laws can cover the second.
I am very much against any view that AOC laws should send out a message (and by extension, that decriminalising, say, sex between 15 year olds, would send out a message that sex at 15 is encouraged). This view relies on 15 year olds altering their bahaviour in line with the law, which they palpably do not.
As usual, this is a well-thought out piece. Many issues that I would have mentioned have been written a bit up from this, but I'll put in a bit of thinker material.
As said before, these laws are in place to protect 13-year-old girls from 40-year-old pedaphiles, and have been abused to the point where [in Wisconsin] a 16-year-old male and a 15-year-old female will be engaging in criminal behavior. At least, last I checked. I really don't have to care anymore.
So-called statuatory rape is one of those laws where the repealation (is that even a word?) would not affect the behavior of minors. Some 13-year-olds will smoke cigarettes whether it is illegal; the same goes for underage usage of alcohol and any usage of drugs. Minors will have sex whether it's statuatory rape, thus, the criminalization of such is ineffective, and fairly useless.
Minors have few rights. Only in certain instances do they have the responsibilities of adults, but never do they have the rights. Think about this -- when a minor breaks the law, he is punished (sometimes as an adult), but the parents/guardians are not. However, parents/guardians get all of the benefits of having children. Driving is even called a privilege in the US, although even if you don't have a driver's license, you still have to pay for the roads. Makes no sense to me. And I paid income taxes when I was 14, although I did not get the benefits of being able to vote. I had to pay for the roads, although I didn't have the ability to use them. Why do I have the responsibilities of an adult when I don't have the benefits?
What my not-very-coherent (sorry, it's early) argument boils down to, is that the age of consent is a bullshit idea. It's one of those laws that exceeds its logical boundaries. There are other ways of accomplishing what the statuatory rape does -- perhaps even the regular rape laws accomplish this. If sex between 40-year-olds and 13-year-olds is not fully consentual, it's already the more serious charge of rape, but if it's consentual, why does anyone care?
's point, that the concept of the age of consent is there because the young may not be able to give informed consent, and my first reply to themightyuser
. Your point is respectable and entirely defensible, but isn't what I'm arguing here, even if I should be.
|Date:||December 27th, 2003 12:06 pm (UTC)|| |
would [a plummeting birth rate] be a bad thing?
(In rich western countries) you want birth and immigration to match or outstrip deaths so that the economy can support people who've retired. So a low birth rate is problematic if you can't attract enough immigrants or guest workers to compensate. But, I'm not convinced that varying the details of sexual law or education are the main factors in whether people have children, though it seems more plausible that they might affect when they do so to a certain extent.
Re: would [a plummeting birth rate] be a bad thing?
it seems more plausible that they might affect when they do so to a certain extent
Although I haven't thought the downsides of this through fully, I think that it could reasonably be considered possibly desirable to try to convince people to delay parenthood until later, and that differing age-of-consent legislation might be a tool worthy of consideration if that were felt desirable.
|Date:||December 27th, 2003 12:10 pm (UTC)|| |
A Quick Thought
Note that it is often the case with modern sets of laws that certain things are illegal but either never prosecuted or are unenforceable. Whilst in an ideal world this would not form a critical part of the way the law works, in reality it often does.
* Copying CDs. The law's there to stop pirates from damaging the music industry, not to stop you making occasional compilations for your mates.
* Road speed limits. Most people do 80+ on motorways if the driving conditions are good. It isn't really dangerous and, sure enough, the cops ignore it.
* Riding bicycles on the pavement. When kids are learning to ride they need to do this for safety reasons.
So to get back on topic: I view ages of consent as one of these things. Like themightyuser
I'm inclined to think people's private business is their private business. However, unlike him I like to have a more specific law in place so that the stompy boot of the law can stomp hard on anyone who does Bad Things with kids. If necessary.
Re: A Quick Thought
I'm inclined to think people's private business is their private business
I agree with that as a general principle, but I believe that increasing the population is not simply private business because of the effect it has on the natural economy. We clearly believe that it is acceptable to limit who can have children to some extent, by the existence of an age of consent already. (Whether it would be possible or desirable to extend this age of consent further is an interesting matter, but not quite the one I'm considering.) Part of my contention is to wonder whether differing ages of consent for the two types of sexual act, even if they do not change the extent to which the law then in place was followed, would change the extent to which the law in place today was followed.
Re: A Quick Thought
because of the effect it has on the natural economy
Natural economy? The national economy, even. (In practice, it's more the local economy, though.)
See, you don't need to use automatic spellcheckers to make silly mistakes like that.
This is the first place I've read this idea, and I'm intrigued. Thank you!
Here's a better guide
to the state of play in UK sex law (ageofconsent.com is barely more reliable than the fibs of dumblaws.com). The text of the Sexual Offences Act 2003
is generally as clear as mud, but as The Guardian's summary shows, it was an overdue tidying of sex legislation and though not perfect is surprisingly liberal and sensible for this government.
The Guardian says: The act criminalises all consenting sexual activity among under 16s. This means it will be a criminal offence for two 15-year-olds to kiss in public. But the Home Office says those below the age of consent are unlikely to be prosecuted if both are enjoying the embrace.
I don't like laws that aren't enforced, though as bateleur
observes they are practical. Never mind that a citizen should be able to know whether their actions are licit, never mind that it might engender disrespect for other laws. It's simply that non-enforcement depends on time and place: a subsequent regime may choose to enforce dormant laws, or you may be prosecuted because you live in a disapproving community rather than San Francisco.
To continue the thought experiment, you might like to consider the sexual rights and responsibilities of mentally retarded adults. The courts seem to have respected these (e.g. this case
Excellent links! Many thanks.
To continue the thought experiment, you might like to consider the sexual rights and responsibilities of mentally retarded adults.
Very, very difficult to know where to draw the line on this one. File this with "Northern Ireland" and "the Middle East" as "matters too complicated for me to have at all a considered opinion upon, so I'm glad that I don't need to have one".