When the Law Is Fiction…

April 1998

Protect the children has been the battle cry for recent enormous expansions of the state's police power. New censorship laws criminalize ownership of images of anyone who looks under 18– even when fully clothed– if the state thinks the owner finds them a turn-on. Sex registries create lifelong Apartheid-like second-class citizenship for those branded sex offenders. And the Supreme Court has okayed lifetime incarceration in sex gulags for those who aren't serving time for any crime committed but who might violate sex laws in the future.

The rhetoric that accompanies these erosions of civil liberties speaks of protecting minors' consent. The very term "age of consent" suggests that those under an arbitrarily-chosen age are incapable of signaling their willingness and thus are "raped" whenever being sexual. In many jurisdictions, even another minor cannot plea that his partner was willing– the law defines all sexual expression by minors as non-consensual. And the press, ever-hungry for sex scandals, routinely reports that Scoutmaster So-and-So "raped" the boys in his troop, implying a violation of consent when all that went on was a circle jerk.

Clear use of language is important when discussing issues wherein hysteria is apt to displace reason. It is vital, therefore, to challenge the nonsensical use of the term consent when it is used regarding kids' sexuality.

Kids of all ages clearly can give or withhold consent and have no problem communicating their attitude to adults. Even a toddler about to receive an injection can, through his howls, unambiguously express his lack of consent. Parents, guardians, teachers, and others responsible for kids' well-being have no difficulty recognizing what their kids do and don't want to do. And in nonsexual matters, we are rarely confused by notions of kids' incapacity to give consent nor the inviolability of that consent.

For example, a child who doesn't want to endure algebra class may be compelled to do so without the teacher being branded a kidnapper. Parents may forbid an adventure-hungry youngster to hang-glide, demonstrating that their safety-conscious authority trumps his "consent." Conversely, a teen caught mugging someone cannot shield himself from the law by claiming he's under age and thus not responsible for the exercise of his free will. In all sorts of ways we recognize that kids can give or withhold their consent. They can cooperate or resist when adults insist. And the law recognizes their responsibility for their actions (even when held to a different standard than adults would be).

But when the issue is sex, laws and attitudes go berserk. Ignoring history, Freud, and common sense, our society pretends that sex is a dangerous and dirty invention of adults. When kids are involved, it must be because some older person has forced them. The law literally forbids acknowledgment of the truth: kids are sexual beings with curiosities and desires, capable of acting on those feelings, and able to consent to attention from others.

People will, of course, disagree on how best to deal with kids' sexuality. Any rational person will naturally be concerned about pregnancy and disease. Some fear sex so much that they favor banning any non-adult sexual expression. Some believe kids should experiment only with each other. Others recognize that some kids will actively seek out contact with partners of all ages, and that adults might have some role to play other than reinforcing taboos and instilling shame.

However the debate proceeds, the goal with sex– as with other matters– should be teaching kids how to grant– or not– their consent and exercise their free will wisely and honestly. If kids are going to have the best chance at acquiring loving, responsible sexual values, we must not get distracted by bogus legal fictions. Instead, we must give those values a lasting foundation, and that means confronting the truth about sex.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=D98CD9A3-1911-11D4-A7AB00A0C9D84F02>