Adolescents’ ‘consent’ to sex: Law and morality in the age of consent laws
The age of consent has risen over time throughout the world. Is this due to ‘moral panic’ over pedophilia? A look at debates on the age of consent illuminates the relationship between law, morality, and liberty.
In 2017, two court judgments in France incited public outcry. Both cases concerned sex between 11-year-old girls and men who were aged over 28 (Calant 2017). As the men were not charged with statutory rape, the cases highlighted the absence of a set age of consent in France – the age under which a child is assumed to be incapable of giving consent to sex. Following international debates and criticism of the French legal system, in 2018 the age of consent in France was set at 15 (BBC News). This means that as of 2018, anyone over the age of 18 who has sex with someone under the age of 15 could be charged with rape, even if violent force had not been used.
In my PhD research, I examined the legal marriageable age, and the global movement to ‘ban child marriage’ by setting the marriageable age at 18. I found that: (1) the rise in the marriageable age was the result of modern assumptions about marriage and children; and (2) the rise in the marriageable age resulted in undermining and hindering children’s agency and their capacity to decide to marry (Horii 2018; Horii 2019b; Horii 2020). The discussion on marriageable age dealt with the dilemma between child protection and empowerment, and questions on how the law deals with this dilemma. To investigate this question further I am now studying the age of consent laws, regarding children’s consent to sexual activities.
The changes that have occurred in recent decades in the age of consent laws worldwide, follow a similar pattern to the marriageable age. Before the 20th century, the age of consent generally ranged from 12 to 14 (Bullough 2005). Throughout the period of modernisation, the age has increased worldwide (the ‘globalisation’ of the age of consent) (Waites 2005). Now, according to Waites, the globalised standard age of consent is 16. The reason for this change can be analysed partly through my research on the marriageable age: the modern conception of childhood views children as ‘innocent, pure, and vulnerable’ beings (Horii 2019b; Horii 2020). Consequently, policies concerning children focus on protection, simultaneously undermining their agentic capacity. Another reason pointed out by some scholars is a form of moral panic. Fischel (2016) suggests that the sex offender is seen as ‘the new homosexual’ or ‘the new queer’, an oversimplification that stirs up societal anxiety. This moral panic then galvanized stigma, moralisation and legal prohibitions to regulate the ‘deviant’ behavior: sex with a minor.
Morality and law are inseparable from each other and indeed, legal moralism is a controversial topic in philosophy of (criminal) law (see e.g. Brink 2012; Husak 2017; Nielsen 2012; Thaysen 2015). However, the debates seem to bear little fruit, because ‘morality’ is hard to define, and it is difficult, if not impossible, to establish a line between morality and law. Law reflects morality, but it also reinforces and establishes moral codes in society. Maintenance of morality is also often invoked in law-making and legal enforcement. For instance, judgments in sex crime cases in Indonesia often refer to moral disturbance as a reason that constitutes a penal offence. Adjudicating a case concerning a sexual relationship between a 17-year-old boy and a 16-year-old girl in Bali, the judge convicted the boy, sentencing him to two years’ imprisonment, stating:
‘Even though the act of intercourse was done on the basis of mutual willingness and there was no compulsion, the action of the defendant had a negative impact on the victim in the midst of her community. […] The defendant’s act is not a good example for other children. […] His act disturbed the society.’ (Horii 2019a)
Elsewhere, Japanese municipal regulations concerning age of consent (inko-jorei) also exemplify moralised legal practice. These regulations were enacted to punish an ‘adult’ (i.e. those over 18 years of age) who had sex with a ‘minor’ (i.e. those under the age of 18), aiming to achieve a ‘sound upbringing of youth’ in each local environment (杉山 2002). They explicitly set the goal of these regulations as being to ‘maintain societal order’ (三枝 2017a; 三枝 2017b). Considering the expansionist character of the regulations,1 their enforcement tends to involve moralisation from ‘an adult view’.
John Stuart Mill’s harm principle is generally understood as a criticism of legal moralism, because offence regulations that criminalise ‘harmless immorality’ would be considered paternalistic and too restrictive on liberty (Brink 2012: 504). Is the age of consent law a form of intervention by States in the private moral sphere? This question needs some good empirical data about adolescents’ consent in law from the perspective of legal actors, and from adolescents themselves. Law is (and should ideally be) an expression of the collective will of citizens (Nielsen 2012: 548). If we agree that children are also active agents and citizens,2 the lack of children’s will in the very regulations concerning children themselves is a problem, and something that needs serious reconsideration.