Age of consent – should it change?

The BBC news website has a report discussing calls to lower the age of consent in England and Wales. Prime Minister David Cameron has rejected the suggestion, made by Faculty of Public Health president Prof John Ashton. The article explains that the Faculty of Public Health provides independent advice to the government.

Prof Ashton starts with the fact that young teens are engaging in sex with one another, and claims that adult professionals in health and education feel unsure of their footing when asked for advice by teenagers, about contraception and safer sex practices. His belief is that by lowering the age of consent, it opens up better access to the resources that teenagers need to avoid pregnancy or disease.

My position has for some years now been similar to Ashton’s, after seeing a short opinion piece on Channel 4 by a female journalist (I forget who, it may or may not have been Polly Toynbee) arguing for lowering the age of consent. As Ashton outlines, “society had to accept that about a third of all boys and girls were having sex at 14 or 15.” When this activity is regarded as criminal behaviour, it must necessarily be hidden from those in positions of authority or official status, because those figures must support the law as it stands.

There is also the question of how we punish these youngsters for their sexual behaviour. This has been a huge issue recently in terms of “sexting” and the tendency by law courts in various countries to define it as “child pornography”, and criminalise those who engage in it.

The BBC outlines some of the objections to Prof Ashton’s suggestion.

The first is that the stated aims can be achieved in other ways, by “updating” sex and relationship education in schools, for example, as Nick Clegg (leader of the Liberal Democrats and Deputy Prime Minister) suggests: “I’m constantly urging (Education Secretary) Michael Gove and the Department for Education to update and modernise sex education in schools which hasn’t kept up with the internet age. But do I think simply a blanket reduction in the age of consent is the answer to this difficult dilemma? No.” A quick search reveals that the figures from the Office of National Statistics report for 2011 (the most recently published figures) show that teen pregnancy peaked in 2007 and has been in steady decline since then – indeed, are able to claim that teen pregnancy rates are “the lowest since records began”.

To this, I would say that “solving teen pregnancy” is only one possible benefit. Another benefit, and arguably a greater benefit, is to avoid criminalising young people’s sexuality and perhaps to foster a healthier attitude to sex as something that develops naturally, rather than on a fixed timetable. Lord knows, teens (and adults, too) get enough of that “fixed timetable” kind of crap about how relationships work from other sources. As I mentioned above, if we say it is illegal for these sexually-aware and potentially active teens to have sex, then when they decide to have sex, how do we punish them for it, and what message about sexuality does that send?

The NSPCC head of policy is quoted as arguing that young people’s sexual activity hasn’t changed much so there’s no need to change the law. The obvious counter to that is that the law has been wrong for the same amount of time.

Two arguments are presented from Liz Dux, who is quoted as “a lawyer representing 72 of the victims of Jimmy Savile”.

One reason Dux opposes lowering the age of consent is that, “There is a real risk that society would be sending out the message that sex between 14- to 15-year-olds is also acceptable.”

I am more concerned about telling 14 and 15 years olds that their sexual desire is unacceptable. Doing so doesn’t stop young people having sex, but it may very well harm them when they do. I keep repeating the point, but criminalising these teens for their developing sexuality strikes me as somewhat destructive overall. Again, if we say it is “unacceptable” then what is an appropriate punishment? What should the law do to enforce the principle that it is unacceptable?

Dux also presents the argument that, “Predatory adults would be given legitimacy to focus their attentions on even younger teenagers”. Now, this argument seems to me to be overstated in Dux’s wording, but it highlights a real concern that has to be addressed by the law. It is overstated because I suspect predatory adults tend not to be overly concerned with what the law says anyway – do we really believe that the sexual predator targeting young teens makes that much distinction between a 16 year old and a 14 year old? Moreover, Dux’s formulation appears to be saying that at present “society” is saying that it “gives legitimacy” to the predator targeting 17 year old teenagers. Let’s come right out and say that the law needs to criminalise all predatory sexual behaviour, whether it is between adults and adults, adults and teenagers or teenagers and teenagers.

But the reason why it is a legitimate issue that Dux is raising, is precisely the question of how the law can distinguish between legitimate or enthusiastic consent, and the sort of coerced consent that predators use. An age boundary that says “people under this age are understood to be vulnerable” is at least an easy answer to the question, and right enough often enough to satisfy the urge to “do something”. Unfortunately, that urge often comes from a possessive need for control over offspring and the fear that they rebel against the older generation. My feeling is that there has to be a better approach, one that can protect the vulnerable while also allowing their autonomy.

I seem to recall that some legislative regions (I may be wrong, but I think this is the case in some US States?) operate an “age difference” modification where the age difference in a sexual relationship with a teen as one partner, must be below a certain range. There are, of course, rules about sexual misconduct in professional relationships (e.g. university professor/student, or doctor/patient) and that could be a guide as well.

The issue is predatory behaviour: targeting the vulnerable, or abusing a power differential. The power differential is why professional standards have to have rules against sexual involvement, for example. But between a teen and an adult, power relations can easily exist even outside of any “official” relationship, so relying on those rules won’t be enough. On the other hand, the age range rule seems to me to have many of the same problems as a high age of consent does anyway.

Ideally, legal consent would be the same as “enthusiastic consent” but making that work in a way that could be tested in a court of law might be tricky.

Whatever the answer to the problem, my feeling is that it should provide the same protection against abusive, predatory behaviour to the 17 year old as to the 14 year old – and indeed, it should also provide that protection to a 23 year old or a 50 year old. Anyone, of any age or gender, could find themselves vulnerable and a target of a predator, after all.

About ValeryNorth

I overthink everything.
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