Without further ado, let’s kick off round 2 of the Great Glibs Debate Series! This sees Jarflax square off against PieInTheSky. Topic as given: Sensationalism aside, it does anecdotally seem that there is an increase in stories of adult female teachers having sexual liaisons male teenagers; this is a topic that always seems to sharply divide the Glibertariat whenever it comes up. Many Glibs point out that male teenagers may, in fact, enjoy the affairs, while others argue that whether they enjoy it is irrelevant; still others bring up double standards if the genders were switched. To me it brings up larger questions of age of consent and the vagueness inherent in making hard-and-fast laws to problems with fuzzy borders. Thus, the topic is whether age of consent laws are, in and of themselves, ethical. If so, why? If not, why not?
Sex is a very fundamental, and therefore very powerful thing. People are as psychologically damaged by rape and abuse as they are by extreme violence. Children cannot protect themselves, and therefore need to be protected from sexual abuse. Parents have primary responsibility for this protection. However, in order to preserve the peace and avoid vendettas we have delegated punishment of crime to Government. This means that we have to either decide that sexual abuse of children is not a crime, or we have to craft laws that define sexual abuse.
Criminal laws that are vague are inherently unjust, because they allow people to be punished for behavior that they reasonably believed was allowed. That means that laws have to draw bright lines that allow people to know whether or not something is a crime.
So why can’t we just use the same rules we use for adults, and define sexual abuse based on consent? The problem here is that children are not born with the capacity to consent to things. You cannot consent to something unless you:
1. Have some degree of understanding of what the thing that you are consenting to is. (knowledge)
2. Have some degree of understanding of the context that allows you to at least guess at the consequences. (judgement)
3. Have the ability to say no to the request. (will)
The whole process of growing from birth to adulthood is the process of developing these three things, knowledge, judgment, and will. At some point the child has developed enough of all three to be capable of consent, before that point they are not able to consent. Age of consent laws, imperfect as they are, are our best attempt at a rule that allows us to define that point for the purpose of punishing abusers.
Age is just a number, as a vaguely creepy saying goes – and it holds a kernel of truth. It is fairly strongly correlated to development in humans, but not fully. Humans take a very long time to mature and are vulnerable in the meantime. The world dangerous and the young require protection. This, for most of history, was simply a parental duty, but, like in most things, it has been taken over by government via law. The ethics of a law are, in general, related to fairness, justice, and proportionality. Does it address a problem correctly without making things worse and without too much potential for abuse?
Human sexuality is, I don’t need to tell anyone, messy. There are a lot of, pardon the expression, blurred lines and there are no easy solutions. Just because there are no easy solutions, it does not mean apply something simple but wrong. Is a fixed age of consent – a number – the ethical way to protect the young from sexual exploitation? Age of consent does not have something objective underlying it. Is 20 to young? 18? 16? Why? This does not take into account circumstances, individual variation in maturity and, importantly, whether there was any harm done.
The essence of law should be justice. There is no justice with an arbitrary number as a fixed age of consent. Someone may be perfectly competed to give consent at 16, someone else not so at 18. Age of consent in themselves punishes the first while failing to protect the latter. Yes, an adult can manipulate a 16 year old into sex, but it can be the other way around, or it can be fully consensual. Legal age can be a matter of a calendar day and an insignificant biological change. The law ignores all this and basically says: A and B have sex this week, bad; next week, all fine. While there are predatory adults, often age of consent issues come from mostly young people barely out of their teens themselves, and not fully mature, who can have their lives ruined by consensual exercise of what youth hormones lead to.
An age of consent is not quite justice, just an expedient and generic way to “do something”, because something must be done, this is something, QED. Sure protect the children, but find a proper way. I would say that we can have a clear no before biological puberty – not tied to an age, but to a biological event. After biological puberty, on a case by case basis, should there be reason for suspicion, malevolence can be detected and punished without indiscriminately prosecution people who did no harm.