I’m going start using categories – this is the first entry for Integral Sexology. I’ve written an essay outlining some issues the field of Integral Sexology (available at Integralworld) might need to consider. Others are free to add their critcisms and additions. I can’t claim to have a comprehensive grasp of the field – these are just beginning thoughts.
The issue of the age of consent is perhaps a minor one but it reveals some interesting issues and attitudes. It’s an emotive issue with any discussion of an appropriate age at which a child/adolescent can consent to sexual relations leading to all sorts of exaggerated fears of ‘enabling’ paedophiles. Yet an objective study of the issue reveals some intersting (and perhaps) shocking facts.
First a brief history: for nearly two thousand years the English speaking world had followed Roman law in regard to the age of consent. It was considered to be 12. It seems as if most of Europe followed suit. Despite conservative Christians now supporting a high age of consent the Bible does not actually make a clear statement on this issue. However Jewish custom is quite clear. A girl reaches maturity at age 12 and a boy at age 13 (Bat and Bar Mitzvah respectively – though modern practice has raised the age to 13 for many girls). So in this regard the Judeo-Christian tradition is actually in accord with Roman law. This also means that Mary may very well have been pregnant with Jesus when was 12 or 13 (does this make God a paedophile?)
I am familiar with the situation in the English speaking world but not Europe. I assume that Europe followed England in changing the age of consent upwards – but I may be wrong about that. In which case it would be good to be corrected. The marriageable age was formalized at 12 in 1285. Up until that time there was no law and local custom was followed. Then in 1576 the law was changed to make it an offence to have sexual relations with a child under 10. Yes, 10. The marriageable age was still set at 12 but 10 was the official age of consent. Having sex with a child was not considered a serious offence and so having consensual sex with a child under 10 was only considered a misdemeanour.
The situation remained this way until the late 1800’s. It is a pattern repeated in most English speaking countries, including the US. The law was reformed in 1875 after growing concerns about child prostitution, including the export of English girls to Europe. It was raised to 13. Another scandal and activism from Josephine Butler, a feminist and Christian social reformer, saw the age of consent raised to 16 in 1885. However, the marriageable age remained 12 until 1929. The age of 16 has since been used as a template for other constituencies in the English speaking world, some constituencies, particularly in the US, have opted for a higher age of 17 or 18. The US sems to have followed England in reforming the law to a higher age of consent, but with different states taking longer than others. Some Southern states did not change their laws until the 60’s and 70’s. The singer Loretta Lyne married at 13 and another singer, Jerry Lee Lewis married his 13 year-old cousin (Hawaii maintained an age of 12 in consideration of Polynesian custom).
Like many I had assumed that the age of 16 was chosen because it represented the best idea of when a child could reasonably consent. This is actually not the case. It’s an arbitrary age based on a cultural conception of when an unmarried girl/woman ‘ought’ to be able to have sex. The age of consent can only really be understood as a reflection of cultural values. And this is where we see important differences between cultures. Interestingly the Spanish speaking world has a lower age of consent than Northern Europeans. The Spanish age of consent is 13 and in some South American countries it is still 12. The Asian sphere has also had a low age; South Korea is 13 and it was 13 in Japan until recently – as has the Polynesian sphere. The English speaking world actually has the highest age of consent (the situation in many Muslim countries is more complicated because some prohibit unmarried sex altogether, whilst some allow unmarried consent at 21 but do not have a minimum marriageable age – in Islam married intercourse can begin three months after first menstruation, which can happen under age 12, Aisha, Mohammed’s second wife was 9 according to some Islamic sources).
So why 16? The age was set as a result of a public outcry over child prostitution at a time when social reformers were active in what has loosely been called the ’social purity’ movement. There were necessary and important reforms in child labour laws, slavery and prostitution – there was also a growing alcohol prohibition movement. The central idea was that the law could be used to push several social reform agendas and the age of consent reform movement was concerned with the idea of ’social’ harm. This idea became the dominant reason behind age of consent laws. The concern was not really the welfare of the child, but rather the supposed moral harm suffered by society when there was a pool of young, unmarried girls available.
The fact that the laws were not designed to benefit the child/adolescent is borne out in the way the rights of the supposed victim are abused by the state. The laws are particularly punitive in many US states where sex with a minor is regarded as statutory rape. I recall reading an account from a Californian cop who said he refused to arrest a 17 year old girl for having sex with her not quite 16 year old boyfriend. Under Californian law she would be charged with stat rape and her name placed on a registry of sex offenders. Such harsh laws have caused the suicide of several young people because of the stigma. Here it is important to note that most of these cases do not involve a much older man seducing a ‘minor’ but peers who happen to be around the age of consent. In Australia this offence used to be called carnal knowledge.
What is important to note here is that these laws are not designed to protect adolescents and children, in fact they are often used to punish them. For example, a mature adolescent girl of 14 who has an 18 year old boyfriend is legally unable to consent and the state can prosecute the boyfriend regardless of the wishes of the 14 year old. She does not have a voice.
The laws are designed to enforce a moral code. And this is where the religious right hop onto the band wagon and demand a high age of consent (despite the Biblical age of consent being 12), because it allows them to control and punish unmarried sex.
But is there a good developmental reason to have an age of consent? The answer is both yes and no. Some teens are not ready to fully consent but some clearly are. But this is where we get into a mess. If we take Kohlberg’s moral stages as a guide we’d have to say that consent can occur when an individual reaches a certain moral stage. Given that the majority of adults are at stage 3 then that ought to be when consent can be given. But as you all know, some adults never reach stage 3. Furthermore, some children can reach level 3 well before the legal age of consent. So, this means that some 20 year-olds can’t consent but some 12 year-olds can. The problem with a set age of consent is that development does not adhere to a strict timetable, children mature physically, morally, cognitively, emotionally, etc, at different rates.
There is another factor to consent and that is experience. If you are aware of the consequences of your actions then you can consent, but the best teacher of understanding consequences is experience. In terms of the age of sexual consent knowledge is an essential component. But here’s the thing – the moral conservatives also want to stop adolescents from getting sexual knowledge, they want them to remain ignorant. There is a vast difference between an ignorant 13 year old and a knowledgeable 13 year old, and also, an ignorant 18 year old and an experienced 18 year old.
Another factor is the actual statistics on when children/adolescents naturally begin to have sex. Regardless of what the law actually says adolescents have sex anyway. Now I don’t have the statistical spread with me but it seems roughly consistent across cultures. Precocious girls start around 11, 12 and most have had sex by age 17 (a mean average might be 14-18).
Okay, to summarize. The age of consent laws are a LL (cultural) method to address a moral concern about unmarried sex. The application of these laws actually cause harm to the adolescents concerned (through intrusive actions from various authorities, police, courts, government welfare agencies) and are not actually based on solid UL or UR evidence, especially developmental. Furthermore, the LL considerations are specific to a narrow special interest group and are not supported through cross-cultural research or objective LR considerations. In other words, many cultures survive moral collapse without having a specific age of consent.
I have maintained in other articles that the conservative Judeo-Christian moral code permeates Western society in such a way that even progressives are unaware. How many progressives accept a high age of consent and even assume it has a rational basis? How many are aware that for most of human history across several cultures the majority view is that sexual activity can begin in early adolescence and that prohibiting sexual activity until 16, 17 or 18 is actually an aberration based on the irrational fear of social harm?
I think Integral theory supports radical reform of age of consent laws. Yes, individuals (children, adolescents and adults) need protection from sexual predators and assault and rape laws need to remain strong. But the law needs to have the flexibility to realise that consent is based on the individual’s developmental level and that this cannot be set at a given age. Some 12 year-olds can consent and some 19 year-olds cannot.
I believe that the age of consent laws should be replaced by ‘illegal seduction’ laws. Until the age of 18 (even 21) the onus is on the more developed individual in the relationship to ensure full consent. The less developed individual can claim illegal seduction and have the offender charged. The court will have to decide if the ‘victim’ was taken advantage of (realising the possibility of vexatious claims). However, I also think the state should not be able to prosecute such cases against the wishes of the alleged victim and all statutory rape provisions should be removed. The court will have to be able consider developmental gaps (particularly in teacher/student cases), as well as power relationships (worker/boss), and so forth, but age limitations should not be automatic. This will allow a mature 13 year old to have a sexual relationship if she/he freely chooses without fear of consequence – whilst also knowing that they can prosecute someone who tries to take advantage of them. I should add that many police forces do a bad job of protecting the vulnerable anyway. The naive 16 year old who is given too much alcohol by a 30 year old and taken advantage of actually has no recourse under law – because of her age she is supposed to know better.
On a final note – it is important to acknowledge that much of the hurt in first sexual real;tionships is not over having sex but in being emotionally hurt. Age of consent laws can be used to avenge a broken heart. But a naive 14 year old giorl who falls in love with someone older is no more or less vulnerable than a naive 19 year old. The 14 year old can use the law to punish whereas the 19 year old cannot.
It is also important to note the double standards based on sex. Women are considered vulnerable and innocent and the younger woman/older man scenario is far more controversial than the younger man/older woman version. There have been several interesting cases in Oz of the younger man, older woman situation. This is also a nuanced area. The Mary Kay Letourneau case in the US was controversial. The result has been that she has married her student lover – yet she was severley punished and publicly condemned against the wishes of her now husband. This was a prime case of the state prosecuting Letourneau, not her young lover. Immense harm was done to him and to the two children he fathered with her – and to what moral gain?
Ray