Age of Consent

The age of consent is an arbitrary age at which a person is considered legally capable of consenting to sex in the jurisdiction in which that person resides. Where a jurisdiction's age of consent laws for sexual activity treat those convicted of those laws with the same severity as criminal rape, the law is often referred to as statutory rape.

This definition highlights several important factors which go into determing the age of consent. The first is that it is arbitrary. In other words, the age is not chosen based on an empirical and measureable quality within the individual himself which relates to the capacity for consent, but rather, it is chosen as a compromise number based largely on political, social, psychological and judicial precedent factors in a legislative process often only marginally related to the actual capabilities of the individuals to which it is applied. This is, unfortunately, necessary when such an age must be determined, due to the simple fact that no two individuals mature at precisely the same rate.

The second important factor is that of legal capability. In other words, the age of consent does not purport to establish anything about the child in question, or his actually (psychological and/or intellectual) ability to consent. Rather, it simply establishes the age at which the child's consent -- whether or not he can be established in fact capable -- will be accepted by the legal institutions authorized to validate it.

Another important factor is that of jurisdiction. A jurisdiction represents the abstract collection of individuals over whom a certain legal institution has authority (see jurisdiction for a more detailed analysis of this definition). As a direct consequence of the arbitrariness of the age of consent, the actual number varies from jurisdiction to jurisdiction. An individual who may be capable of legally consenting in one area may, simply by crossing a border, find that his consent is no longer valid.

Finally, note that the age of consent is traditionally applicable to the issue of sexual consent. Most jurisdictions separately declare ages for other defined adult activities such as voting (see age of majority), driving, drinking or entering into military service.

Current debate

The current debate on age of consent falls into roughly four camps (note that these are very loosely defined and much overlap and tangled line-drawing occurs):

• The conservative position (not the political term "conservative" but rather, conservative meaning in favor of the status quo or minimal change) holds that current age of consent laws are appropriate and should be enforced as they stand. This would segue into a radical conservative position holding that jurisdictions with lower ages of consent should bring themselves up to parity with jurisdictions with higher ones.

• The revisionist position holds that, while age of consent in itself is a valid and desirable concept, the current numbers are too high or unrealistic and should be revised downwards.

• The radical position holds that the concept of age of consent should be eliminated completely.

• The replacement position holds that the concept of age of consent is not valid for its purported purpose and should be replaced with another system of determining capability to legally consent. The replacements most typically take the form of some type of preparation or education, examination or empirically gradable "test" to determine whether an individual is ready, sometimes coupled with licensing schemes.

Ages of consent around the world

Given the variable nature of this information, we are unable to provide an up-to-date list.

See Wikipedia

The case of the Netherlands

Much discussion has been devoted to the age of consent in the Netherlands. According to a law passed in 1989, even though the age of consent was set at 16, sex between an adult and a young person between 12 and 16 was not an offence if the young person consented to the contact. Prosecutions for coercive sex could be sought by the young person or his/her parents.

The law which stirred much discussion (see Schuijer 1991, 1993, 1995, Faust 1995) and praised as positive for adolescent sexuality (Levine 2002, 89) was later repealled in 2002 by a very rare unanimous vote in the Dutch parliament (Hekma 2004).

Note

The Common Law has this notion since the Statutes of Westminster [3 Edw, c.13, 1275], [13 Edw, c.34, 1285], where it was set at 12 years; 18 Eliz, ch.7 §4 [1576] lowered it to ten years. Ten or twelve years remained the age of consent in Colonial America and later until the 1890s, after it had been raised to sixteen years in Great Britain in 1885. This led to intense lobbying in the United States and the formation of a rather stable coalition of feminists, religious conservatives, and liberals and succeeded in raising the age of consent in the U.S. as well. From this time the law is as much about controlling juveniles as about protecting them, and anomalous in that one usually is allowed to marry at an age one is considered incapable to consent to sex. Until the 1970s this only applied to (white) girls. The recent history (1970 onwards) is subject of the interesting study by Caroline E. Cocca.

References and further reading

• Baker, C. (1983) "The Age of Consent Controversy: Age and Gender As Social Practice." Australian & New Zealand Journal of Sociology 19(1): 96-112.
• Baurmann, M. (2005) "Sexuality, Adolescence and the Criminal Law: The Perspective of Criminology." Journal of Psychology & Human Sexuality 16(2/3): 71-88.
• Böllinger, L. (2005) "Adolescence, Sexual Aggression and the Criminal Law." Journal of Psychology & Human Sexuality 16(2/3): 89-104.
• Brongersma, E. (1980) "The meaning of 'indecency' with respect to moral offences involving children." British Journal of Criminology 20(1): 20-34.
• Brongersma, E. (1988) "A Defence of Sexual Liberty for All Age Groups." Howard Journal of Criminal Justice 27(1): 32-43.
• Brown, M. (1996) "The Age of Consent: The Parliamentary Campaign in the UK to Lower the Age of Consent for Homosexual Acts." Journal of Legislative Studies 2(2): 1-7.
• Bullough, V. L. (2005) "Age of Consent: A Historical Overview." Journal of Psychology & Human Sexuality 16(2/3): 25-42.
• Cocca, C. E. (2004) Jailbait: The Politics of Statutory Rape Laws in the United States. Albany, NY: State University of New York Press.
• Ellis, S. J. and C. Kitzinger (2002) "Denying equality: An analysis of arguments against lowering the age of consent for sex between men." Journal of Community & Applied Social Psychology 12(3): 167-180.
• Faust, B. (1995) "Child sexuality and age of consent laws: The Netherlands model." Australasian Gay and Lesbian Law Journal 5: 78-85.
• Graupner, H. (1999) "Love versus abuse: crossgenerational sexual relations of minors: a gay rights issue?" Journal of Homosexuality 37(4): 23-56.
• Graupner, H. (2000) "Sexual consent: The criminal law in Europe and overseas." Archives of Sexual Behavior 29(5): 415-461.
• Graupner, H. (2005) "The 17-Year-Old Child: An Absurdity of the Late 20th Century." Journal of Psychology & Human Sexuality 16(2/3): 7-24. (.pdf file)
• Hekma, G. (2004) "Queer: The Dutch case." GLQ: A Journal of Gay and Lesbian Studies 10(2): 276-280.
• Hofmeister, L. (2005) "14 to 18 Year Olds as 'Children' by Law? Reflections on Developments in National European Law." Journal of Psychology & Human Sexuality 16(2/3): 63-70.
• Killias, M. (1990) "The Historic Origins of Penal Statutes Concerning Sexual Activities Involving Children and Adolescents." Journal of Homosexuality 20 (1/2): 41-46.
• Leahy, T. (1006) "Sex and the age of consent: the ethical issues." Social Analysis 39(April): 27-55.
• Levine, J. (2002) Harmful to Minors: The Perils of Protecting Children From Sex. Mineapolis: University of Minnesota Press.
• Maplestone, P. and R. Roberts (2002) "Young gay men and the age of consent in New South Wales." Word is Out 3(June): 13-21. (.pdf file)
• Mawby, R. I. (1979) "Policing the Age of Consent." Journal of Adolescence 2(1): 41-49.
• Powell, D. E. B. (1994) "Homosexuality and Age of Consent." Lancet 343(8898): 674.
• Rind, B., P. Tromovitch & R. Bauserman (2001) "The validity and appropriateness of methods, analyses, and conclusions in Rind et al. (1998): A rebuttal of victimological critique from Ondersma et al. (2001) and Dallam et al. (2001)." Psychological Bulletin 127: 734-758.
• Robertson, S. 2002) "Age of consent law and the making of modern childhood in New York City, 1886-1921." Journal of Social History 35(4): 781-798.
• Schuijer, J. (1991) "Tolerance at Arm's Length: The Dutch Experience." Journal of Homosexuality 20 (1/2): 199-229.
• Schuijer, J. (1993) "The Netherlands Changes its Age Of Consent Law." Paidika: The Journal of Paedophilia 3(1): 13-17.
• Schuijer, J. (1995) "Recent Legal Developments in the Netherlands." Paidika: The Journal of Paedophilia 3(4): 64-71.
• Weber, A. (2001) "Europeanwide Criminalization of Juvenile Sexuality up to 18." EuroLetter 91: 6-8.
• Weis, D. and V. L. Bullough (2005) "Adolescent American Sex." Journal of Psychology & Human Sexuality 16(2/3): 43-54