London, UK (TFC) – From kink to feminism to paedophiles, consent is hardly ever out of the media spotlight. But there are a few things we don’t want to acknowledge about consent. There’s the arbitrary nature of the age of consent and the fact that consent laws criminalise acts they shouldn’t while letting abuse victims down. Then there are the ethical questions and the flaws in the legal concept of consent. And an often overlooked problem is those situations in which criminalising the older partner actually harms the very young person whom the law is trying to protect.
The age of consent is always, and necessarily, arbitrary
That’s because an age of consent can never be one-size-fits-all. Not only do people mature at different rates, we also have vastly different relationships, IQ, social skills, personality types, experiences, genetics, situations, strengths, vulnerabilities- and age gaps between partners.
The age of consent will always criminalise consensual sex and fail to protect abuse victims
This means that not only does the age of consent (whether it’s high or low) unnecessarily criminalise some relationships, it will always fail to protect vulnerable people. Somewhere there are a few 12 year olds who can consent, and 25 year olds who can’t. In fact, somewhere there are 40 year olds who can’t consent if they have debilitating mental health issues. The age of consent could be raised to 21 and still fail to protect some people.
The only way to avoid this problem is to decide each case on a case-by-case basis. But this would mean that we’d have no way of knowing if we are committing a crime until we appear in court. The law would be opaque. That’s not acceptable in a free society. And, over the years, case law would gradually set precedents that would create a de facto age of consent. We’d be back to square one, just without the age appearing on the statute books.
It raises huge moral questions
Because ages of consent differ between jurisdictions (as low as 9 to as high as 20), how are we to define consent? Or abuse? You could be a paedophile in one country and an upstanding citizen after crossing the border. Canada only recently raised its age of consent from 14 to 16. Up till just a couple of years ago a Canadian 18 year old with a 14 year old partner would be arrested for statutory rape if they crossed into the US, where the age is 18 in most states and only goes as low as 16 in others. And many people convicted of having sex with a person under the age of 16 in the UK would not have been criminalised in Canada. In fact, just driving across state lines in the US could get you in trouble if your boyfriend is 16 or 17.
These different ages can’t all simultaneously be correct. So which one is right? If 18 is correct then many British people are rapists. If 14 is correct then many people have been jailed unfairly. What if 20 is the right age- what would that mean for you?
This is a moral question because it means we can’t differentiate between rape and sex. Who is a rapist? Who is an abuse victim? Is this sex act right or wrong? Am I committing rape?
As long as we can’t agree on a global age of consent, we can’t answer that question. We literally have no way of knowing if we are raping someone.
Some kids don’t need it- and the age of consent actually harms them
For teens who are underage but are mature enough to consent to sex with adults, a huge irony is that the criminalisation of their partner actually harms their psychological wellbeing, while the sex didn’t. The most recent high profile UK case was that of then 15 year old Megan Stammers and her teacher Jeremy Forrest. In 2012, just weeks before she would have reached 16, the UK age of consent, the couple were discovered and fled to France. Forrest was sentenced to 7 years for ‘abducting’ his lover (taking a child under the age of 16 away from her parents without their permission). Despite the age of consent being 16, social workers banned Stammers from contacting Forrest until she turns 18. Stammers (called Gemma in the article though her real identity is public knowledge) was still in love with him in 2013 despite trying to move on by dumping him for a same-age boy. (I’m not saying Forrest wasn’t wrong or that he shouldn’t have gone to jail. I’m just saying that as far as we know, and from all that she has said publicly, Forrest’s arrest and conviction upset Stammers but her relationship with Forrest did not. That’s very sad.)
More recently an American couple, Mary Kay Letourneau and Vili Fualaau, revealed how the adult teacher’s jail term impacted her then 13 year old boyfriend and father of her baby. They’re now married with two teenage daughters. To me, this situation is completely wrong. But no matter how wrong I personally think it is, we can’t deny the fact that Fualaau, who was just 12 when their relationship began, was not distressed by the relationship, only by the criminalisation of his daughter’s mother. And now as an adult capable of understanding child abuse, he remains not distressed by the relationship.
Consent is in the eye of the beholder
Some feminists don’t think women can ever really consent to kink, sex work or glamour modelling. To them, women who appear to consent are brainwashed into acting out patriarchal oppression. I don’t agree with them, but it’s important to remember that consent, especially when one party is underage, is a member of a stigmatised group or is vulnerable, is often in the eye of the beholder.
Consent is more to do with the actions of the privileged party
Underage sex workers are more likely to be consenting if they’re independent and in control, rather than working for others. For example, contrast the case of the abused and sex trafficked underage girls in Rochdale to the experience of American author and columnist Tracy Quan, who decided to be a sex worker at 10 years old. At age 13 she started her career in sex work after making a “Sex Plan” to seduce a neighbouring Professor. At 14 she continued the work after running away to Britain to live with her 22 year old boyfriend.
Tracy Quan doesn’t see herself as a victim of child abuse. She always describes herself as a consenting sex worker, as she does in this interview on Rain Taxi:
“I was a [14 year old] runaway, living with my boyfriend, very eager to have some financial independence. I had always daydreamed about being a prostitute, and London is a city where you can certainly explore that. There are people from all over the world buying and selling sex. It’s invigorating.”
The laws on both sides of the Atlantic would rightly label all of Tracy’s encounters as paedophiles, and- perhaps less correctly- label these transactions and relationships as exploitative. (Of course under the law it’s child sexual abuse, but to call it that in Quan’s case would deny her agency and lived experience). So, why did the Rochdale girls end up traumatised and Quan end up writing a series of novels based on her sex working experiences? The obvious answer is consent; even if the law doesn’t acknowledge it, Quan was advanced for her age and capable of consenting, whereas the Rochdale girls were raped or not capable of consenting. But there’s another factor, and that’s control. The Rochdale girls were groomed and pimped out. But Quan was an independent sex worker who sought out transactions without the knowledge of any adults except those who bought her services. The same goes for a relationship between an employer and employee; consent depends on whether the employer is using fear of being fired or passed over for promotion to coerce her staff member into having sex.
Control, or the actions of the party with the most power, is a very important factor in consent. Had Quan been groomed by the Professor or had the Rochdale girls decided to enter the world of sex work on their own, their stories and feelings would have been very different. We do recognise this to a degree. Though Megan Stammers and Tracy Quan had similar experiences of running away abroad to be with an older partner, most people would see Stammers’ experience as more likely to be exploitative, because her boyfriend was her teacher.