Reprinted with revisions, from F. M. Martinson, "Current legal status
of the erotic and sexual rights of children." In Handbook of Sexology,
edited by M. E. Perry, 113-24. Amsterdam: Elsevier, 1990. Used with
According to the property paradigm, children are the physical property of
adults. Their bodies and their sexual activity are in the power of adults. In
extreme cases, the child's body may be mutilated (castration, circumcision,
clitoridectomy) or used for sexual purposes by an adult without the child's
consent. In milder cases of sexual control, the child may be prevented from or
punished for enjoying his or her own body through genital play or
masturbation. According to Lee, in the mildest cases of sexual control the
child is denied the age-appropriate information necessary to know how to be
sexual or is fed misinformation (Sears, Maccoby, and Levine 1957).
to the protection paradigm, the child is a person in training and is held in
trust for a period of time until deemed old enough or mature enough to look
after himself or herself. From the perspective of a personal paradigm, children
are persons and citizens in their own right. From this perspective, age is not
considered a more valid basis for discrimination against certain categories of
persons than are race, sex, or religion.
According to DeMause (1974), the sexual use of children by adults (die
property paradigm) was far more common in the past than it is today. The child
in antiquity, both in Greece and in Rome, was likely to be engaged in sexual
activity with adults at the adults' discretion. Where homosexuality with free
boys was discouraged by law, men were known to have kept slave boys for sexual
purposes. According to DeMause, "the Greeks and Romans couldn't keep
their hands off children" (DeMause 1974:547). Boy brothels existed in
urban centers, and castrated boys were favored sexual partners by men in
imperial Rome. Castration of boys was common enough in Rome, for sexual and
other purposes, so that during Constantine's administration a law against
castrators was enacted.
It was not until the introduction of Christianity in Western society that a
conception of children as innocent and as inappropriate sex objects became a
dominant cultural paradigm-a protection paradigm. Efforts to dissuade adults
from engaging in sexual activity with children continued throughout the
seventeenth century, and from the eighteenth century it became common for
little children to be discouraged, even punished, for playing with their
genitals or masturbating. Close supervision, punishment, restraints, and
surgical procedures such as circumcision and clitoridectomy were employed to
prevent masturbation (Rachford 1907).
From early on, circumcision was
recognized as a means of contributing to the control of male sexual passion.
Philo wrote in the first century that circumcision was for "the excision
of passions, which bind the mind.... The lawgivers have commended that this
instrument . . . be mutilated, pointing out, that these powerful passions must
be bridled, and thinking not only this, but all passions would be controlled
through this one" (DeMause 1974:526).
Procedures for controlling child sexuality continued into the twentieth
century and included circumcision and a protective and repressive posture
toward child sexuality. The protection paradigm, still a predominant paradigm
in the Western world, when applied to child sexuality means that a properly
raised child shall observe no sexual activity, shall hear no sexual talk, and
should not be involved in any sexual activity. A major change in the
protection paradigm was instituted in the latter half of the twentieth
century, when sex education was introduced in school curricula in Western
countries. Sweden was the first country to require comprehensive sex education
for all children beginning in the primary grades. Even today, comprehensive
sex education for all children beginning in the primary grades is not common
practice in all countries in the West (Jackson 1982).
Historically, there has been a change in child sex laws and judicial
procedures. According to the Dutch jurist Brongersma, the idea that sex in
itself could harm a child was absent in European culture, and hence penal law
was silent on the matter until fairly recently. "Children were on equal
footing with adults, protected against rape, violence, and abuse of authority,
but never against sex as such" (Brongersma 1984:80). This was the
situation in the Netherlands up until 1886, for instance. During the
nineteenth century, penal codes were extended with a new provision against
indecent behavior with children. The concepts of age of consent and statutory
rape came into use. Child sex laws have been clearly shaped within the
dictates of a protection paradigm.
According to common law (law based on custom and precedent), an infant reached
full maturity at twenty-one years of age. The concepts of minority and
majority rest on the assumption that children, called infants or minors, are
incapable of self-management-management of property, management of their
sexuality, etc. Age of minority is a matter of legislative regulation, and
hence a status rather than a fixed or vested right, and is subject not only to
be fixed by legislative action but also to be changed (Ginnow and Gordon
1978). Today, legal age in the various European, Asian, Latin American, and
North American jurisdictions varies from age eighteen to twenty-one. A minor
may become emancipated at an earlier age through voluntary, parental, legal,
or judicial action in some jurisdictions, and in many countries marriage of a
minor is sufficient to bestow legal status.
The crime of statutory rape is defined as rape not necessarily because the
younger partner was forced or coerced into engaging in a sexual act or because
the young person did not consent to engage in the sex act, but because legally
the person was not of the age to have his or her consent recognized by the
court. In other words, minors are defined as incapable of giving consent.
Societies have struggled with their attempts to determine fixed ages below
which a child, though old enough to engage in certain sexual acts and
personally mature enough to consent to the activity, is not deemed mature
enough to give informed consent to engage in a sexual act. To date no
generally accepted age has been determined.
In the 1800s in England the age
for statutory rape was as young as ten years; today the age is sixteen, with
physical rather than chronological maturity used to justify leniency or
acquittal at court. There have been statutes setting the age at from twelve to
eighteen in the United States; and the Model Penal Code drafted in 1962 after
approximately ten years of study by the American Law Institute settled on the
age of ten (Dolgin and Dolgin 1980). Since minors cannot give consent, consent
is an irrelevant consideration, and at court penalties for having sex with a
person below the age of consent-statutory rape-are among the most severe
handed down in any cases of rape.
In the United States there is a diversity of sex laws and penalties for their
infringement among the fifty states, but every state has some legislation
designed to protect children from sexual activity. Such activity is always
given a negative label-such as sexual abuse or statutory rape-and the child,
being below the age of consent, is labeled the victim. His or her older
partner is labeled the perpetrator. Impairing of the morals of a minor, lewd
acts, obscenities, and indecent exposure may be defined as misdemeanors, and
abduction of minors for sexual use, carnal abuse, genital contact, and
forcible or statutory rape may be defined as felonies.
It is difficult to deal with cases of sexual activity involving children
within the judicial system.
Since witnesses and corroborating evidence are
commonly not available, the prosecutor's case often depends almost solely on
the child's testimony. Can a child too young to give consent, supposedly too
naive to know what is going on or why it is going on, be sophisticated enough
to give testimony? Furthermore, can a child who has seen no other sexual
activity, heard of none, and not experienced any but that involved in the case
in question be subjected to the rigors of an adversarial proceeding?
concern about this, and the courts go to great pains to secure the needed
evidence while at the same time attempting to minimize psychological trauma
suffered by the child during the criminal trial process. Lawyers and judges
refer to the Arauma7' of the child who must face many strangers in the
criminal system, and to the child as a "psychologically sensitive
victim" (Oseid 1985:1380). In most jurisdictions in the United States, a
trial judge may make a finding of competency when convinced that a child
witness can intelligently relate the facts, distinguish between the truth and
lies, and understand the importance of an oath or the consequences of lying.
Not all persons subscribe completely to a protection paradigm in dealing with
children, though some elements of protection must be a part of any paradigm
because of the high level of dependency of human offspring from birth and at
least for several years. Socializing is still the major mode of child rearing
in the West. A major competing paradigm is the personal paradigm.
A number of
fists of essential rights of children have been proposed within this personal
paradigm. Most of them appeared during the 1970s, the time of an early aborted
Children's Liberation Movement in the United States (Farson 1974; Foster and
Freed 1972; Gross and Gross 1977; Holt 1974).
All proponents of children's
rights would grant to children the same rights as are granted to adults,
including the right to choose guardians and living arrangements, to exercise
political and economic power, and to receive information; and some would grant
the right of sexual freedom (Calderone 1977; Farson 1974; Gross and Gross
According to Calderone, the fundamental sexual rights of children would
include the right to know about sexuality, the right to be sexual, and the
right of access to educational and literary sexual materials. In part, the
personal paradigm is based on the belief that the child knows better than the
adult what it needs at each stage of its life and that adults, particularly
parents, interact with the child in such a way as to empathize with and
fulfill the child's particular and expanding needs. Nowhere in the West are
child-adult sexual acts generally regarded as a right; the child's right to
masturbate and the right of children to engage in sex play and other forms of
intimacy with each other is most clearly recognized in certain Scandinavian
countries (Aigner and Centerwall 1984).
Legislative trends tend to shift in concert with other social changes, but
there is likely to be considerable lag when law and judicial decisions are
involved. Both tend to express the specific, concrete concerns and the social
policies of a past generation. This is particularly true in regard to child
law and judicial decisions, since child law is created and enforced by an
adult population and not necessarily a population in tune with or empathetic
to the needs and interest of children. Considerations of paternalism are
especially strong in child law as adult lawmakers and enforcers attempt to
protect what are regarded as weak, innocent and hence potentially exploitable
For example, the state of California has no less than eight different s tory
proceedings that can affect the custody of a child. The concept that is
supposed to take precedence in awarding custody is the best interest of the
child (Child 1982). It is a moot question how much input the child has in
assessing his or her best interest, for the custody statute is silent on some
important issues and is vague on others. This, along with a collection of
inconsistent court opinions for precedents, means that judges may do with
their discretion virtually whatever they will. According to Dolgin and Dolgin,
judges are "generally prosperous, male, members of the bar, over 60"
inclined to provide interpretations that reflect and sustain their own
experiences (Dolgin and Dolgin 1980:220).
One might expect that given arbitrary age of consent statutes regulating child
sexual behavior, there would be little room for discretion or change short of
changing the age of consent. This is not necessarily the case. The concept of
variable competence is a case in point. Is it possible for a pre-pubertal
child to give consent to participate in sexual activity with an adult, for
According to the concept of variable competence introduced in recent
years, a child who has not reached maturity may under certain circumstances
make decisions. The concept of variable competence assumes that a normal child
has a conscious mind; that he or she is rational, not delusional; can
accurately enough perceive the situation and his or her place it; and has
sufficient intelligence and experience to determine what is in his or her best
interest. In other words, a child may be able to give informed consent before
having reached the age of majority. For instance, it has been argued that what
matters is whether the minor knows what he or she is doing at the time of a
sexual encounter, not chronological age. In some states, lack of chastity is
admissible evidence. Kalvin and Zeisel, in The American Jury (1966), reported
that they found no underaged females in their sample of statutory rape cases
that had not had previous sexual experience.
Physical maturity may also be a variable consideration. In England today, for
instance, the age of majority for statutory rape is sixteen, but physical
maturity has been used in justification of leniency or acquittal in statutory
rape cases (Rush 1980).
Some legalists argue that statutory rape laws not only deny the young the same
sexual rights as those granted to adults, but also treat underaged females and
This concept of equality has prompted some states to grant
immunity from statutory rape charges to under-aged males. In Maryland,
statutory rape cannot be committed by anyone under eighteen, and several
jurisdictions have extended immunity to all males under age twenty-five. Some
states affirm that a male who has sexual intercourse with a female under
sixteen, if he is only four years older than the female, is not guilty of a
lesser offense such as corrupting the morals of a minor. According to the 1975
FBI Crime Report, arrests for statutory rape appear to be almost nonexistent.
Another concept that has helped contribute to the relativization of the
application of child sex law is that of functional incest. The supporting
rationale for the concept is that sometimes incest is functional to the
preservation of the family (Farson 1974). This view is consistent with a
number of thinkers in Europe and in America who think that the dangers of
sexual activity within the family (incest), even that involving the parent and
offspring, may have been overstated.
Tolerance of pedophilic relationships both in support of the pedophile and the
boy partner has also been counseled, not only by pedophile organizations such
as Pedophile Information Exchange (England) and Man/Boy
Lovers of America, but also by professionals and scholars such as Ullerstarn
(1966) in Sweden and Brongersma (1977) in the Netherlands.
There have also been interpretations of the law that protect the right of
privacy for minors that could be construed to cover even their freedom to
engage in sexual activity. In discussion of a New York statute concerning
consensual sodomy, Judge Taylor (New York Law Journab in Re P January 23,
1978:12) argued that private, intimate, consensual sexual conduct not harmful
to others does not violate public morality and is protected by the right to
privacy, and that a minor cannot be treated as a delinquent by the courts if
the behavior in question is legal if carried out by adults.
Changes in attitude, both professional and legal, regarding child sexual
activity, as discussed so far, suggest a more permissive attitude toward such
activity. But the protection paradigm is still strong in Western societies,
especially among religious groups. There have also been changes in perspectives on child sexuality stimulated by the discovery of a large incidence
of child sexual abuse both outside of and within the family. Parents,
professionals, and legislators are calling for and enacting greater
surveillance, more restriction, and surer punishment for perpetrators of child
sexual abuse. For every person who has argued in favor of greater sexual
freedom for children, there are a host of others who have argued for even
greater protection and restrictions.
Primarily to help eradicate child sex abuse, child sex law has gone through
changes designed to monitor more closely behavior of all adults, but
especially suspected child abusers, through a system requiring reporting
of suspected abuse-reporting by teachers, doctors, and other professionals who
deal with children-and through criminalizing more adult-child intimacy and
Several attempts have been made to define what constitutes child sexual abuse.
According to the U.S. Child Abuse Prevention and Treatment Act of 1974, child
maltreatment is defined as "the physical or mental injury, sexual
abuse, negligent treatment, or maltreatment of a child under the age of 18 by
a person who is responsible for the child's welfare under circumstances which
indicate the child's health or welfare is harmed or threatened thereby"
(Public Law 93-247, 93rd Congress Senate 1191, 1974). A 1978 amendment to that
Act authorized the National Center on Child Abuse and Neglect to address the
problem within a broader context.
In subsection 5(3) of the Act as amended,
the term sexual abuse includes "the obscene or pornographic
photographing, filming or depiction of children for commercial purposes, or
the rape, molestation, incest, prostitution, or other such forms of sexual
exploitation of children under circumstances which indicate that the child's
health or welfare is harmed orthreatened thereby" (Congressional
RecordHouse, p. H2647, April 10, 1978).
The National Center for Child Abuse
and Neglect adopted a tentative definition of child sexual abuse as
"contacts or interactions between a child and an adult when the child is
being used for the sexual stimulation of the perpetrator or another person.
Sexual abuse may also be committed by a person under the age of 18 when that
person is either significantly older than the victim or when the perpetrator
is in a position of power or control over another child."
Child protection and pornography legislation of 1984 further criminalized
sexual activity in which children are involved. Federal laws against the
production and distribution of pornographic materials involving children
raised the age of consent from sixteen to eighteen, removed an existing
requirement that sexually explicit materials depicting children be obscene
before they may be banned, and banned the production and distribution of child
pornography regardless of whether it was commercially disseminated
(HR3635-PL98-292). According to Money (1985:85), "strictly speaking, the
law makes it a crime for parents to send their baby's grandparents a nude
picture of the baby, genitals exposed in the bathtub."
Through the monitoring of child-adult behavior by other adults, it is possible
that some cases of child sexual abuse come to light and are treated. It is
also possible that the laws and monitoring deter others from abusive sexual
practices. Such outcomes are positive and should be applauded. But because of
the vagueness and inclusiveness of the definitions of sexual abuse, there is
also some danger that increased monitoring and criminalizing of intimate
encounters in which children are involved may also have negative effects.
VOCAL (Victims of Child Abuse Laws), for example, is a group of adults who
organized in part to counteract the overzealous attempt to expose child sex
offenders. The definition of what is appropriate intimacy between an adult and
a child can be a moot question given the zealous attempt to improve the
situation. As Brant and Tisza (1977) have stated it,
tender fondling by the parents may transgress strict boundaries; in the
twilight state of mutual affection, unconscious wishes and vivid
fantasies may emerge, and incest may become an emotional experi-
ence for a child even without direct genital contact ... [I]t is hard
todefine the point at which pleasurable stimulation is experienced as over
stimulation, and the child, flooded with excitement, feels overwhelmed and
helpless, fears loss of control, and becomes symptomatic. It is difficult to
ascertain at what point an experience engenders an individual child's
reaction of anxiety and guilt. (Brant and Tisza 1977:85)
In sum, some sex involving minors is being decriminalized and some is being
criminalized at the present. As U.S. society is doing what it can to protect
children from exploitation, it may also limit children's expression of their
sexuality through the legal restraints put on parents and other of the child's
potential partners in intimacy. Carolyn Swift testified on sexual assault on
children and adolescents before a subcommittee of the U.S. House of
Representatives. She stated that children are the least articulate and most
exploited population "suffering from society's failure to confront
realistically the phenomenon of human sexuality" (testimony proposed for
the Subcommittee on Science and Technology, January 11, 1978).
Several consequences grow out of society's reluctance to confront
realistically the phenomenon of human sexuality: