Competence to consent is popularly considered an extremely important moral and legal principle when it comes to sex play, but the issue is much more important and profound in the field of health care. This post reviews some of the superficial beliefs commonly expressed about competence to consent in relation to sex play, and then considers the much more crucial question of competence to consent in cases of serious disease or terminal illness in childhood.
According to some authors, informed consent entails understanding the possible consequences of your choices, and the alternatives available (1). Competence to understand consequences and alternatives is certainly an important factor in determining whether an individual may freely consent to sex play.
The ability to resist manipulation may also be considered important, but even mature adults are often quite incompetent to resist the simplest forms of manipulation in interpersonal relations and the commercial marketplace. To resist manipulation, most children (like many adults) need assistance from disinterested third parties, preferably experts in the relevant field: assisted consent.
Do most young people become competent to understand consequences, alternatives and manipulation on midnight of a certain birthday? The concept of “age of consent” is merely an administrative convenience, since competence may vary between individuals of the same age depending on differences in education, experience and biological maturity of the individual’s brain. So in reality accurately measuring competence to consent would require extensive evaluation in each individual case.
To avoid such effort and expense, legal administrators merely assume everyone below an arbitrarily selected age is “incompetent” and then count an individual’s birthdays to determine whether he’s “competent” or not. That simplistic and superficial bureaucratic trick is nonetheless popularly worshiped as if it is an expression of divine wisdom.
The concept of age of consent is merely an expediency for administrators (kings and churchmen in the past, and government employees today), it’s not for children’s benefit. How ironic that individuals who call themselves a child’s “protectors” have no qualms about administering carelessly conceived rules to selfishly lighten their own workload.
Taking advantage of the widespread ignorance over the concept of age of consent, some other individuals claim that many states and countries had a surprisingly low age of consent in the past, and suggest that such ages are highly relevant to the question of competence to consent today. Such individuals seem to think that if age of consent was lower throughout most of history, the current (higher) age of consent is a historical aberration.
But even if the age of consent was much lower in the past, that doesn’t necessarily mean that younger children are competent to consent today. In any case, we still have to obey current laws, and any age of consent is arbitrary: some individuals below the arbitrarily selected age may actually be very competent, while other individuals above the magic age may actually be incompetent.
Instead of worshiping administrative convenience, I believe that children should be educated for competence from the earliest age. A responsible parent teaches a child what consent means, and that granting or withholding consent is every child’s right. Instead of telling a child nothing about sex, or simply commanding: “Don’t you dare do it!” (and thereby provoking reckless rebellion), a responsible parent informs a child about the need to understand alternative choices and possible consequences of each choice, and the opportunity to seek third-party (preferably expert) advice before deciding to consent.
For example, a responsible parent advises a daughter of any age that when she feels she wants to experience anything more than minor sex play, they can go to a gynecologist together first to learn how to avoid injury, disease or unplanned pregnancy.
Traditionally, adults are considered responsible to foster a child’s health and happiness for his long-term benefit, even if that entails disregarding the very young child’s current wishes. Many parents abuse that custom, e.g. by forcing children to undergo unnecessary circumcision in infancy. Deciding to disregard children’s consent may be easy in infancy and very early childhood, but the older a child gets, the harder such parental judgments become. There is not much difference between the reasoning ability of 11-year-olds and university students (2), and what little difference there is may be reduced even further through specific education for competence. So competence or incompetence to understand consequences and alternatives is far from clear in many individual cases.
Some pediatric protocols assert a child’s right to be informed about the seriousness of his disease, the risks and benefits of different treatment options, and where relevant: the possibility of imminent death. There is evidence that “parents who have open conversations with their child about death and dying do not regret having done so” (3). When children are well-informed they can avoid unnecessary fears or worries, e.g. that dying is physically painful, or that opioid sedation hastens death. Children of any age should be informed that fast-acting medicines eliminate moderate to severe physical pain, so if necessary a patient can be medicated to sleep and dream most of the time, without impairing attempts to prolong life.
Care aimed at improving quality of life in the here and now can and should be provided along with life-prolonging care. But some adults believe that it is better to deceive the child into thinking his illness is only temporary and will disappear eventually. Some parents don’t even want their child to be informed of what his disease is (e.g. cancer). If his condition progressively worsens, then some people believe that parents, doctors and psychologists should lie by telling the child this is only a temporary setback.
That strategy has serious obstacles in practice because children aren’t stupid. The patient may subtly perceive the truth, or may find out the truth (e.g. from another patient), or the child may hear about the death of another patient who has the same disease and “isn’t supposed to die.” In such cases the child may lose all faith in the words of parents and medical staff, and may understandably rebel and refuse to comply with any directions. Deceiving a seriously ill child sometimes entails deceiving siblings too, and such deception may have a life-long, negative impact on the surviving sibling’s trust in his parents as well as health care personnel in the future.
Another strategy is the religious belief in the afterlife. Some children are told that God wants to separate the child’s soul from his body, bury his body in a box, and send his soul to heaven (i.e. take him away from his parents). But in practice a child may naturally wonder: What kind of God is that? Parents in such cases, even true believers, may have difficulty hiding their own discomfort, and the child may perceive the parent’s veiled skepticism. In such cases the child may not only lose hope but even question the parent’s ability to reason coherently. A child in that situation may suffer even more.
Misinforming a child patient and siblings about prognostic uncertainty and possibly imminent death denies them the opportunity to do things they would like to do while they still have the chance. End-of-life planning should occur well in advance, not during a near-death crisis. For example, boys and girls who are terminally ill may be allowed to sleep together if that’s what they want. Young people can be given the choice to agree to tissue/organ donation or sperm/egg donation, thereby enjoying the satisfaction of voluntarily helping others and leaving a legacy. A deceived child’s death is, in effect, worse than what it could have been because it is sudden and without warning as far as the children are concerned – precisely because of adult deception.
No one doubts that at some point during development the child becomes competent to be informed and make his own choices. Many children in Western countries today have access to much more information, as well as more leisure to study, and hence may be in a better position to make mature judgments than children in the past or in other cultures.
Robert Epstein has described how in some cultures a person is considered mature and a full member of the community at puberty. Such individuals can and do work, marry, participate in community decisions, etc. (4). In modern Western culture young people have no political or economic power or influence, so it is no wonder that they are often hostile (“rebellious”) and even suicidal.
The complex problem of competence to consent can be confronted more effectively by educating children for competence from the earliest age, including critical evaluation of popular information sources such as the mass entertainment “news” media. Children should even be informed about the future possibility of serious or terminal illness, and asked if they would prefer to be accurately informed (or lied to) in such a case, which gives children more of a sense of control.
Conversations with children about these subjects at different ages may be recorded, and such recordings may serve as evidence of individual competence and a kind of living will. Conversely, a parent’s refusal to educate a child about consent may be considered a form of selfish and irresponsible neglect. I suspect that children who have been specifically educated for competence, and have previously chosen to always be accurately informed, will surprise and inspire us all when and if they are actually faced with challenging decisions.
1. Faden, Ruth R. et al. A History and Theory of Informed Consent. Oxford Univ. Press. 1986.
2. Lipmann, Mathew. Thinking in Education. Cambridge Univ. Press, 2003.
3. Ullrich, Christina et al. Pediatric Palliative Care. Chapter 40 in: Kliegman, Robert M. et al. (ed.) Nelson Textbook of Pediatrics. 19e. Saunders, 2011.
4. Epstein, Robert. The Case Against Adolescence. Quill Driver Books, 2007.