The defined 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 literally cross swords. The gun point passionate arguments of most are undoubtedly originating in passionate belief of the best interest of the child.
But one can can not turn a blind eye as to what it de facto does. 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 lived child sexual abuse opinionate, and so I had 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.
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.
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 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.
Experts argue 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 situation the question is not if the next sexual activity age reduction in law will be defined. The question is when. Deplorable.
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.
Neurology to the rescue
Neurological science has proven we are not “adult” until well into our twenties. Objective research, such as brain scan imagery, shows by age 18, the usual legal adult age, we are about half way in our neurological development from puberty to adulthood. A quick search will reveal the amount of research on the subject.
It is universally agreed upon by neuroscientists that at 18 we have not outgrown our adolescence. Risk taking and dealing with risk taking consequences, our capacity to inhibit impulses or deal with influence, and more are not fully developed. Whether we like it or not, this involves and influences at least our psychological and sexual capacities. It usually takes until about our mid twenties to reach that point, but there is great variability in timing.
We will inevitably explore and experiment sexual behaviour long before the end of development. During that time, various forms of influence create victims, who sustain life-long measurable neurological damage.
So to me the question is not whether the age of biological ability to procreate should be used. It should not. The question is how can those who are more accomplished on their path of life (want to) take responsibility for those less accomplished?
In many if not most child sexual abuse cases, victims have had to show, prove, to the courts there was unwarranted influence, abuse. Is that how we want a child, regardless of age, to start life-long measurable damage?
In time, I am confident law will acknowledge neurology to determine whether an individual is of age of consent or not. Much like it has the capacity to objectively determine who has been victim of child sexual abuse as a child, and who is falsely accusing. Why don’t we develop and use the objective tools at our disposal instead?
So what should we do?
Until such time we know what we’re doing, we stop lowering the legal age of consent of children.
Instead, based on the neurological evidence, the law should seek to increase the age of consent. The duly necessary exceptions to the law should render the age of consent wholly dependent on three pillars:
- objective assessment there is discernment
- establishment there is absence of elements of abuse such as influence and coercion
- exclusively within the group of peers
International law and jurisprudence already allows for this “flexibility” concerning consensual sexual conduct in the group of peers.
Wrongdoing will happen in the group of peers, among children. Repression is not the answer. Support, awareness and reparation are.
final thoughts
Child sexual abuse has been part of humanity since times immemorial, and will remain part of our societies no matter what we do or wish against it.
In 2020 Kristin Jones offered an inspirational ted talk: Why children stay silent following sexual violence.
Yes, some of the data she refers to might not be entirely up-to-date or correct. But that’s not important. Her sharing of experience exemplifies what happens among the 90% of child sexual abuse cases, and sheds light on what needs to change.
The first change is not the law.
The first change is how we all look at and deal with child sexual abuse.
Our adult culture and praxis of ego, honour, shame, silencing, … being valued as more important then a child’s needs being dealt with appropriately, must be stopped.
Adults, parents and the close circle of trust in particular, need to learn appropriate communication on the subject. An atmosphere of non judgement as a warm, secure, trustworthy blanket. In this way, also false accusations of children can be dealt with in a sane and future life constructive way.
Stand by children victims and children perpetrators. And particularly stand up against adult set ways and perpetrators. No matter the age consideration. And realise if we condemn sexual abuse between adults, then shouldn’t we start with addressing sexual violence against and among children with as much fervour?
