Age of Consent

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.

References:
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.

About sexhysteria

Author of "Real Child Safety," reviewed at: www.books4parents.org Contact: teachitaly@gmail.com
This entry was posted in child sexual abuse, children, parent education, sex, sex education and tagged , , , , . Bookmark the permalink.

16 Responses to Age of Consent

  1. Until recently, literature on children’s competence assessment was limited. Two reviews [ 1 , 10 ] summarize the empirical literature on children’s competence to consent in research and treatment settings. A variety of different definitions and measures emerge from studies on children’s competence. Two quantitative instruments, namely the Competency Questionnaire – Child Psychiatric (CQ-ChP) [ 13 ] and the Hopkins Competency test (HCAT) [ 14 ], were examined, and some other authors (e.g. [ 15 ]) used semi-structured interviews. Only Weithorn’s interview [ 15 ] examined all four sub-domains of competence (see below).

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  2. sexhysteria says:

    Thanks for your comment, but the references are missing.

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  4. Pingback: Sexual Maturity: Fact or Fiction? | Sexhysteria's Blog

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  6. Bill says:

    I think it is important to point out that if “giving informed consent” means “understanding the possible consequences and knowing the available alternatives” then the “age of consent” will be different for each and every activity just like it will be different for each and every individual. Not to mention – training, education, experience etc will reduce it for every individual.
    And I don’t think the word “manipulation” makes much sense. Any interaction between two people having different interests necessarily have an aura of “manipulation” in them – like between buyer and seller who are bargaining and play psychological games to influence the other. But despite all the manipulations, the buyer and the seller did not violate any rules of consent UNLESS there is force, threat or deception.

    It should be thus obvious that the criteria for “giving informed consent” for
    A> getting married,
    B> having REAL(penetrative) sex ,
    C> getting involved in nude playing and touching without any real sex.
    D> getting photographed in the nude for a magazine.
    will be different for each of the 4 activities. I would imagine that since A is a life-long promise and responsibility and B requires knowing about STDs, pregnancy controls and possibly even child birth and rearing; A and B will require a higher age of consent than C and D which are relatively harmless.

    Consider specifically D and B. The worst consequence of D is shaming by puritans and because most minors usually know there own comfort levels with nudity – so it is not hard to decide. While as I have mentioned, the consequences of B are much more.
    Now here is the funny part. The age of consent for sex in many states may be as low as 15, but under no circumstance is one allowed to post a nude picture of themselves before 18. Even a cartoon that looks under-aged and nude can lead to imprisonments. Why do you think that is? Because feminists are not threatened if a girl does something privately, but a publicly accessible nude picture means that there is easy gratification for men and this is unacceptable to feminists.

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  7. sexhysteria says:

    Good point.: competence to consent also depends on the complexity of the particular activity involved. However, I think the word “manipulation” is usually understood to imply some form of deception, such as incomplete information. Although subtle deception is accepted as normal in commercial practice, it is rightly called innocent fraud and should not be tolerated when dealing with children either.

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  8. Bill says:

    If deception is involved, then that is the term we should use – Deception, not manipulation. The word manipulation is a very vague term and does not necessarily mean anything other the fact that someone changed their minds or adapted a new viewpoint or a new way of thinking. Every person is constantly being manipulated by and at the same time constantly manipulating others without even knowing about it.

    Second, if a child can’t consent, then that doesn’t mean that the child shouldn’t perform that action. A child may not be matured enough to decide what is the right food to eat. That doesn’t mean that the child should starve to death. Some decisions needs to be taken by other well wishers. So ordinarily the parent should decide. So why is it that parent suddenly turn from “well wishers” to “potential molesters” ONLY when sexual matters are concerned? The government is nothing but the will of the majority. If the government decides for the children, it is no different from the majority of neighbours deciding for the child.

    Third and most importantly, I expected you to answer a question – why is it that in many places the age of consent for actual sex can be 15( or even 13), but the age of consent for giving a “sexy pose” is universally 18?(because that can be, based on the mood of a judge, declared as pornography)
    Quite clearly the potential consequences of having actual sex are far greater than posing nude publicly.
    Quite clearly body shame is a subjective issue. Even a 10 year old understands the consequences – which is facing shaming, Some are naturally comfortable with nudity and doesn’t care about shaming, whle others are not.
    So why can’t a child consent?
    If she or he can’t consent, then why can’t the parents consent?
    Why is even illegal that if a child takes his own nude photo and publishes it ONLY AFTER SHE BECOMES AN ADULT?

    Isn’t it obvious that the feminists who are passing these laws are doing it for their own benefit to restrict male gratification?

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    • Summer says:

      ” Second, if a child can’t consent, then that doesn’t mean that the child shouldn’t perform that action. A child may not be matured enough to decide what is the right food to eat.”

      I think it’s important to distinguish between informed consent and simple consent (willingness) here. A child who cannot give informed consent, can still give or withhold simple consent. The difference, in my opinion, is that informed consent entails the acceptance of responsibility for one’s actions, the consequences of which one must understand to give informed consent. To the extent that a child cannot give informed consent, this responsibility is transferred to the child’s guardian.

      In your example, when given absolute freedom to choose the meal they want, a child might not have the knowledge and/or maturity required to make an informed decision. However, they can and usually WILL express their (lack of) willingness to eat the food on offer.

      However, a child’s inability to give informed consent is not necessarily a prohibiting factor in most cases, because if it was we would have to keep them in a padded room with a straight-jacket until they became “informed”. Instead, it merely means that the responsibility we can’t expect from the child in question, becomes the responsibility of the child’s guardian (or any supervising older person).

      The child’s guardian rather than disregarding the child’s wishes and choosing what the child will eat on their own, could instead allow the child to choose from a more limited pool of possible meals, which have been selected by the guardian in a way that none of the possible choices pose a risk to the child’s health. So in the context of that limited pool of possible meals, the child’s decision CAN be considered informed, if only because the risks they are not aware of have been removed by their guardian.

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      • sexhysteria says:

        Thanks for your comment. I agree it’s important to recognize that informed consent confers responsibility, so when a child is not competent then the adult guardian should guide the child’s choice and take responsibility for it.

        I also agree that children should have as many alternative choices as possible, consistent with their need for safety and healthy sexual development, recognizing that eventual clitoral erectile dysfunction is a danger if very young children aren’t allowed and even encouraged to enjoy sex play with each other.

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  9. sexhysteria says:

    Thanks for raising several interesting points. As I have argued throughout my posts, some special interests profit from body shame, not just a few confused feminists. What really bothers those special interests is not “male gratification” as you suggested, but the loss of cash profits from selling products and services sold by the sex abuse rescue business, the infant bottle formula industry, the textile /fashion industry (especially bra makers and sellers), etc.

    The very concept of an age standard is merely an administrative convenience, since determining an individual’s competence to understand consequences and freedom to choose alternatives would require too much effort for our “busy” governments. I’m well aware of the inconsistent ways that age standards are used in many places.

    I’m afraid the word “manipulation” has a very negative connotaion, whether it includes deception or not. Manipulating a child is not respecting the child’s autonomy. Kids may be coerced or manipulated to do (or not do) something against their will if there is a clear danger. But otherwise, adults should merely offer education and guidance and then let kids learn from their own mistakes.

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  10. Bill says:

    Can’t tell about other industries, but I doubt the fashion industry will “profit” by body shaming and rejecting young models.
    The legally adult models regularly show plenty of skin, including very often breasts and other private parts. And there is a lot of money in that. But a 17 year model? The feminists will go berserk with hysterical cries.
    It wasn’t always like that. The average age of entry for a fashion model until recently was 12-13 and the peak age was considered 16. A model in her mid twenties would be considered rather old and past her prime. Fashion critics often use statements like ” She has the body of a 14 year old” as a complement. And until recently, it wasn’t illegal if these young fashion models showed some skin.
    But the feminists have successfully managed to make that illegal as well.
    The fashion industry is actually proof that the driving force behind the age of consent are feminists and a few similar hysterical groups.

    The reason why I don’t like the word manipulation is because it does not seem to give a very clear picture of what is wrong. Vague and subjective terms like that are subject to being abused. If a child’s autonomy was disrespected, one should be clear about how exactly was it disrespected instead of using a vague term like manipulation.

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  11. BIll says:

    @summer
    I agree that there is a difference between normal consent and informed consent.
    The only problem is that one can always question what constitutes the “informed” part. It can be argued that even the adults are never really informed because it is impossible to know all potential consequences of an action before performing it. More often than not both children and adults learn potential consequences by making mistakes.

    Although I am completely not sure what point you tried to make after that – about parent giving choices and responsibility etc.

    The thing is that this whole notion of “age of consent” is a legal artifact. It’s not a very natural concept. And I agree with the blog-writer/admin that various groups are responsible for promoting this notion for their own gains. One problem I do have with him though is that he doesn’t sufficiently highlight the various motives of feminists, who are among the primary driving force behind promoting this concept.
    To start with – raising the age of consent means a few years less competition sexually.
    Consider for example this- Brooke Shields was voted the sexiest lady in America from age 14-20, but not after that. Make the age of consent 18 and now BS is only approachable even for a sexy photoshoot only after 18.
    The feminists are actually threatened more by the photos than actual sex and this is verified by the kind of laws they push forward. Even a cartoon 15 year old is threatening to them.
    How else on earth does the concept of concent applies to a cartoon 15 year old ?

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    • Summer says:

      “Most laws are meant to protect people. Sex laws are meant to protect custom.”
      I don’t remember who it was that said that, but it describes the current situation perfectly in my opinion. The way I see it, the “age of consent” was never about children. In fact it was never about consent either. Truth is the people who “rescue” children from sexual “abuse” in which they willingly participated (the so-called “participant victims”) don’t differ from actual rapists that much. The latter disregards your “No” and the former disregards your “Yes”.

      And to add to your list of absurdities caused by the age of consent laws:
      1) A child can be held fully accountable for the rape (even if the “rape” is consensual) of a younger child. The same child, however, is considered totally incapable of consenting to sex with an older child or adult.
      2) Similarly, children are expected to understand murder and thus are often trialed as adults, but it is considered impossible for a child to understand something as simple as sex.

      But, unfortunately, in this world, violence is perfectly acceptable, while sex is “dirty”. Somewhat recently a man found his 11-year-old son in bed with an 18-year-old and proceeded to beat the older boy to a bloody pulp and would have killed him if it weren’t for his son’s pleading. And yet the older boy, whose “abuse” of the younger one was possibly consensual (it had been going on for 3 years), was declared a monster, while the father, who nearly committed murder in front of his 11-year-old son is hailed as a hero. And THAT is the world we live in.

      Anyway…
      As you said, it’s impossible to gauge how “informed” someone’s consent is. I also agree that even adults rarely give informed consent. But “informed consent” is a concept that was originally limited to life-changing decisions, such as undergoing a medical procedure or signing a contract.
      Trying to apply the concept of “informed consent” to everyday activities, such as sex or sports for example, is highly problematic, because these activities are not life-changing. Here, the “informed” part refers more to being able to take the necessary precautions (e.g. using protection for sex, wearing protective gear for (certain) sports) to reduce potential risks (e.g. STDs and pregnacy for sex, temporary or permanent injuries for sports).

      Obviously, the “informed consent” to an everyday activity can’t be compared to the “informed consent” reserved for medical procedures and contracts. Given the gravitas of the latter form of “informed consent”, I believe it makes sense that in most activities adults engage, it’s hard to see their consent to the activity as “informed”.

      The point of my previous post was that when a child is not informed of the risks for a certain activity, that does not necessarily mean that they should not engage in said activity, but that the child’s guardian should act on the child’s behalf to limit the risks involved. For example, teaching/reminding the child to were a helmet when riding their bike.

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  12. sexhysteria says:

    Good points. There are strong reasons to criticize age of consent laws. But the solution is to do away with the concept entirely, not merely raise or lower the age of consent to some other arbitrary level. Competence to understand consequences and freedom to choose alternatives can only be determined in each specific case, considering the individual child involved, and other unique factors, not merely by counting birthdays.

    While there is documentation that some radical feminists were responsibile for starting and spreading the mass hysteria over child sex abuse,* you shouldn’t continue blaming unspecified feminists and their supposed motivations without citing some documentation. When you accuse someone without citing specific evidence and claim to be abe to read their minds (“they obviously want this/that”) then you are witch-hunting yourself.

    You also risk alienating other feminists who are sex-positive and not in favor of mass hysteria. In my personal experience some individual men are just as hysterical as radical feminists when it comes to children’s sexuality, and it’s not because those men are feminists.

    *Whittier, Nancy. The Politics of Child Sexual Abuse: Emotion, Social Movements, and the State. Oxford Univ. Press, 2009.

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