Towards More Sensible Laws
In the preceding chapters I have suggested that we have long been aware that children are sexual beings, but that society has been all too ready to ignore the fact, and to give too little thought to its enormous implications. It has been demonstrated beyond all doubt that children may be sexually attracted to adults, and I hope I have shown convincingly that there are adults who genuinely love children, and who are sometimes able to form positive erotic relationships with them, despite all the social prohibitions.
I have also shown that there are paedophiles like myself who have been torn between their conviction that they have love to give, and their fear that in any particular circumstance they may succeed in giving only offence. And even in the case of those for whom the barriers of doubt and guilt have posed fewer problems, so many relationships are crushed in tragedy when they come to be 'found out'.
In much of this volume I try to show that all the prohibitions, the doubts, the confusions, the tragedies, that accompany sexual behaviour in all its manifestations, are a product of our society. For the moment, however, I want to suggest immediate, pragmatic steps that can safely be taken in the United Kingdom as it is (and, with modifications, in other Western societies), not as I would wish it to be. I want to show that what we in PIE have to say is not just a lot of indulgent theory that would never work except in impossible conditions of an ideal society, but that we have our feet firmly on the ground.
It is now over four years since PIE formulated its proposals on the age of consent, in the form of legal recommendations made to the Home Office Criminal Law Revision Committee. At the time, the proposals were received in total silence by the press, although we understand that at least one cabinet minister was impressed. 1
Before turning to these proposals, it will be helpful to put them in the context of other attempts to mitigate the more crudely harmful effects of the law on the sexually-involved child. Of these, an experiment in Israel could best fit in with society's traditional antagonism to paedophilia. In 1955 the state of Israel passed an act substituting a social-work-orientated handling of the child for the standard police investigations. The act provides for the appointment of youth examiners to investigate the facts of the crime, rather than the police. The youth examiner can also decide whether or not the offender is to be prosecuted, and he is empowered to refrain from going ahead in cases where he thinks there will be an adverse effect on the child.
The youth examiner normally sees the child in her own home, or in the examiner's office, in much more informal surroundings than would be the case in a police station, with a resultant easing of tensions for the child and her parents. The objective of the youth examiner in this first meeting is to create an aura of reassurance; to give confidence through establishing warm and helpful relationships; to elicit the facts of the sexual relationship, and to evaluate the extent to which the child had been affected by it. Then, the examiner has to decide whether the child can be exposed to the legal process, and whether the child may he permitted to testify.
Judge David Reifen of Tel Aviv reports 2 that during the first two years following the passage of the act only 10 per cent of the children under ten years of age and 35 per cent of children between ten and fourteen were permitted to give evidence in court. When a child is allowed to testify the youth examiner is in court to give the child support and reassurance.
In most cases in which the prosecution goes ahead, the youth examiner prohibits the child from testifying, and the examiner himself gives evidence in court in lieu of the child. This permits the examiner to introduce information taken and recorded by him in his interviews with the child. The examiner is also allowed to include any minutes or reports he may have prepared following such interviews. If the youth examiner presents evidence the court may request that he re-examine the child to obtain further information or to clarify specific areas, but the examiner has the right to refuse to do so if he feels further questioning could damage the child psychologically.
Since this procedure is an exception to the rule prohibiting hearsay evidence, the law provides that no person shall be convicted on the evidence of the youth examiner alone. There must be corroborative evidence.
The idea has a lot to commend it in terms of protection of the child, but it clearly does so at the drastic expense of the normal rights of accused persons. As the American De Francis Report 3 says:
'Briefly, without getting too technical, the plan violates basic rights the right of the offender to face the accuser, the right to cross-examine, the right to exclude hearsay, and the right to equal protection of the law. The last point stresses the fact that under Israel's procedure sex offenders against children do not get the same legal protections provided for other persons accused of crime. These are all substantial rights which our judicial system is dedicated to support and protect.'
The De Francis Report itself was unequivocally, indeed downright hysterically, anti-paedophile, but it does at least have the value of recognizing that children need shielding from the harshness of police and court procedures.
The Report commended protective service programmes as operated by the New York Society for the Prevention of Cruelty to Children and other SPCCs. The pattern they employ, like the Israeli one, also replaces the police by protective agency staff in questioning the child 'victim'. By agreement with the police and county prosecutor, the protective agency receives the initial report of the sex 'crime' and conducts the investigation. With the agency's child-centred orientation, says De Francis, 'the impact on the child of the emotional stresses inherent in the investigatory process are softened by concern, by awareness and by sensitivity to the child's needs.'
The case may then be brought to court, in which case the protective agency worker 'prepares the child and family for the court experience.' This preparation is geared to bring conviction of the necessity for prosecuting the offender to protect the community. The child and family are supported in accepting their role and in gaining awareness of the positives of the situation.
The worker gives other and more tangible service to ease the anxieties of the child and his parents throughout the court proceedings. He will appear with the child and family at every court appearance and serve as amicus curiae as a friend of the court and as the family's representative. He will oppose unwarranted defence motions for adjournments; he may seek to have the general public excluded from the courtroom; and he will work with the county prosecutor toward accepting a guilty plea from the offender. If a guilty plea is accepted, there will not be a trial and the child will be 'saved the ordeal of testifying in court.'
Much of the SPCC procedure is a great improvement on what we know in Britain. It represents at least an attempt to put the child's needs first. But the philosophy of the approach suffers from the same defects as 'protective' thinking in other spheres. Labour laws that were designed in the past to protect women from being exploited by employment in heavy and arduous jobs, while they may have been well-intentioned, are also the expression of a society which seeks to perpetuate the notion of a 'weaker sex': a society which says a woman who wants to be a crane driver should he prevented from exercising the folly of her own choice, is also one which is unlikely to accept a woman as a company chairperson. It is a patronizing, unliberated society. 4
The same goes for the way in which we treat children. I'm not saying that the law which stopped wretched little Victorian boys from being stuffed up sooty chimneys was a bad one. But it is bad if that same legislation, or laws passed with the intention of 'protecting', are used to prevent children from gaining a measure of economic independence, by doing a paper round, for instance, or serving petrol at a garage. In such cases society is serving not to prevent exploitation of the child, but to keep it in subjugation, to limit its horizons.
The notion of 'protection' by means of taking all decisions out of the hands of the party to be protected, and giving all responsibility to 'authorities' who are presumed to know best, is clearly evident in the SPCC procedure. In this case it is the social worker who is presumed to know best. And the social worker is clearly charged with the task of convincing the child and family 'of the necessity for prosecuting the offender to protect the community'. What if they are not convinced? What if the child was very fond of the adult and knew a damn sight better than any social worker that he was not a danger to the community? What if the parents knew it too? for parents often do oppose prosecution.
It appears that this 'we know best' attitude is even allowed to influence the judicial proceedings when they are under way, in the SPCC scheme of things: evidently they do not feel they are overreaching themselves by moral blackmail of the accused, in persuading him to plead guilty so as to protect the child. Yet this kind of pressure is just as unfair, in terms of being contrary to the ordinary rules of natural justice, as the Israeli system described above. Incidentally, it should be realized that the person most sensitive to the harm done by police and court proceedings is often none other than the accused. I have known several people who have pleaded guilty when they might have escaped conviction, simply to save the child from the anguish of it all. One of them got a life sentence for his pains! Can it really be satisfactory to rely on a system which exploits the courage, the moral strength, the sheer goodness of the accused, in order to condemn him?
We like to think that the proposals we in PIE have worked out succeed in achieving the most important goals of both the Israeli and SPCC approaches, without their attendant weaknesses. The PIE proposals would:
(a) maintain protection to the community by keeping the criminal law in use for those cases where it is clearly appropriate;
(b) avoid the necessity for police or criminal court involvement in a great many cases;
(c) make good use of the professional skills of social workers;
(d) in an unpatronizing way, give the child a say in the proceedings;
(e) avoid, in most cases where it is likely to be a factor, the possibility of moral blackmail against the accused.
These are big claims, especially as the core proposal abolition of the age of consent seems at first sight so radical that we might be thought quite mad to suppose it could be taken at all seriously. Yet it is worth noting that exactly such a proposal is being taken very seriously in one European country Holland and not just by 'radicals' either. In evidence to a Government commission (the Melai Commission) on the protection of children, due to report soon, the Netherlands Order of Attorneys has advocated the abolition of laws based on an age of consent concept (although the Order of Attorneys felt that coitus, as opposed to other sexual activities, was unacceptable with a girl under twelve). The Protestant Union for Child Protection also declared itself against a fixed age and wants prosecution limited to cases of evident 'seduction' or compulsion; the Roman Catholic Youth Council has suggested that where a child is over twelve the question of whether there should be a prosecution should be determined by the wishes of the child.
The various Dutch proposals by no means fail in the protection of children. Nor does PIE's proposal overlook the problems inherent in the meaning of 'consent' where a child is concerned. The question of 'consent' in a philosophical sense is something to which I will return. What I can immediately establish is that PIE, no less than the sceptics and detractors, has been aware that there are huge grey areas between, say, the enthusiastic willingness of a toddler to play genital touching 'games', and the doubtful submission of a teenage girl to a boyfriend whom she does not want to disappoint. Children can be coerced, psychologically, or by veiled threats, just as adults can, into giving their consent; indeed, some feel that an adult, just by virtue of his size and maturity, carries so much authority in relation to a child that the latter may have insufficient chance to say 'no' to sexual suggestions, and his consent can never therefore be wholly valid.
Some of these points PIE would dispute, but all of them have been recognized as valid ones for concern, and the proposals were formed with a view to taking them into account. PIE's evidence, if acted upon, would by no means give adults carte blanche to have sex with children, and would allow it only in cases where the clearest consent has been given. The 'grey area' problem was to be solved, not by the blunt instrument of the criminal law, for this usually operates to the detriment of the child as well as the prosecuted adult, but by establishing a new framework within the civil law. This would determine, in cases of doubt, whether a child's consent to sexual activity could have been communicated to an older partner, and there were provisions for prohibiting the older partner from further sexual activity with the child.
Before turning to the proposals in detail, it is necessary to be clear about the principles that underlie them. Briefly, in common with the Sexual Law Reform Society, PIE believes that there should be a general freedom, upheld by the law, for individuals to engage in any sexual activities that they freely choose.
The only exceptions PIE believes are necessary arise from the need to avoid the infliction of involuntarily sought pain, anguish or physical damage upon participants; the giving of affront to third parties who have a complaint justifiable in the courts; and the avoidance of seduction or procurement of children through the use intimidation, drugs, alcohol, etc. (The Sexual Law Reform Society proposed an age of consent for the protection of children.)
PIE also accepts, in common with the Sexual Law Reform society, that it should be an offence to indulge in any sexual activity or display where it could be observed by others and causes them annoyance.
In addition, PIE recognizes that the consent of a child, though potentially present, cannot always be communicated to an older person; the same may apply to the mentally subnormal, in relation to any sex partner. In such cases PIE proposed that it should be possible for the law to intervene to prevent the continuation of such sexual activity. (Personally, I feel that the mentally subnormal are as entitled to a sex life as anyone else and I believe they, like children, are 'protected' to the point of being stifled. But this is another issue.)
On the basis of these principles, PIE proposed that there should be no age of consent, and that the criminal law should concern itself only with sexual activities to which consent is not given; or which continue after prohibition by a civil court (see below); or which otherwise offend against these principles. In relation to children and juveniles the question arises, even in the absence of the above factors, as to whether the younger partner's consent could have been communicated to the elder party. This would be determined by PIE's entirely new system, operating outside the ambit of the criminal law.
From this point on, I can do no better than quote the proposal verbatim: 5
'The legal framework that we propose to operate outside the criminal law needs to take account of the extents to which children of different ages are able to communicate their consent to sexual activity. Whereas we believe that children of any age are capable of considering a sexual act pleasurable or not pleasurable, the extent to which this information, and therefore the consent, can be communicated to other persons varies.
'We propose a series of age groups where, under specified conditions, the provisions of the Children's Acts and other means could be applied. The lowest of these age groups would be 0-3. By the age of four the great majority of children are able to communicate verbally or in an equivalent way. Below the age of four it would be deemed by the law that children are unable to communicate their consent to sexual activity. Where sexual activity with a child of this age occurs it is assumed that consent or lack of it cannot be determined; therefore, providing there is no aspect of the sexual activity to which we intend the criminal law to apply, on receipt of a complaint to the local authority action should be sought by the administrators of the Children's Acts.
The form of this action would be a prohibition similar to an injunction and imposed by the administrators of the Children's Acts. The prohibition would restrain the older partner from seeking out the child. If this is not possible, as in the case of a parent or guardian being the older partner, then the child could be brought into the care of the local authority. In the event of breaches of the prohibition, fines or terms of imprisonment could be applied.
'Whereas below the age of four it is assumed that consent cannot be communicated by most children, there will still be some above this age who cannot communicate their consent. The law should allow for this. In fixing ten as the age of criminal responsibility the law assumes not only that most children should be held responsible for their actions at this age but also that they can communicate their intent. There can be little doubt that the majority of children at the age of ten can communicate their consent or otherwise to a sexual act. We therefore suggest that doubt exists for only some children between the ages of four and nine.
'In the case of children between these ages, those closely concerned with the child will be the people most likely to be aware if consent could not be communicated.
'In the case of a child aged between four and nine no action should be taken to stop sexual relationships between it and an older partner except
(a) on the complaint of a parent or guardian or a person responsible for the care or welfare of the child or
(b) any other person having reason to believe that the sexual activity was not consented to; or had resulted in clinically demonstrable mental or physical harm or suffering; or involved intimidation, drugs, alcohol, etc. to secure the seduction or procurement of the child ....'On receipt of a complaint of a parent or guardian or a person responsible for the care or welfare of a child, and where no criminal sexual activities are involved, and where it has been shown that consent could not be communicated, the continuance of the relationship should be prohibited in the same way as a relationship with a child under four.
'Between ten and seventeen, where it is assumed that consent can be communicated except in the case of the mentally subnormal, restrictions on mutual and harmless relationships with adults should be minimal. The "moral danger" clause of the Children and Young Persons Act should be used sparingly. Stricter definition of this clause should be stated in law to avoid the harm done by citing mutual and harmless relationships between children, or between children and adults, as situations of "moral danger" ....
'The mere involvement of children of four and above in consensual sexual activity whether homosexual or heterosexual, whether with other children or with adults, would not be a sufficient justification, in our view, for activating the care and protection provisions of the Children and Young Persons Act.
'We believe that it would be intolerable if prohibition by the administrators of the Children's Acts could be sought concerning sexual relationships between children of similar ages. We therefore propose a series of three overlapping age groups where children within each group would not be subject to prohibition if they engage in sexual activity.
These groups are 0 - 9; 7 - 13; 10 - 17. A child of eight, for example, would be free to engage in consensual sexual activity with other children aged between 0-13. In the case of sexual activity between children where the prohibition process would apply then the prohibition may be sought against either the older child or the guardian of the older child.
'We propose that the sexual relationships of mentally subnormal persons should be treated in a similar way to those of children aged from 4-9, so that each case should be considered on its merits. However we feel that in this case the next of kin or those concerned with the mental welfare of the subnormal person should additionally be free to ask the local authority to seek to have the sexual activity prohibited.
'We have proposed that the local authority should be responsible for seeking prohibition by the administrators of the Children's Acts of certain sexual activity. We believe that if the parent or guardian in the case of a child (or next of kin in the case of a mentally subnormal adult) was responsible for seeking prohibition the possible financial burden to be incurred may deter action. Also, it is important to have machinery which can be brought into action other than by the parent or guardian or next of kin, in cases where the latter are insufficiently concerned with the welfare of the child or mentally subnormal person.
'The onus for bringing any proceedings lies with the local authority and any complaint made by the parent, guardian or others concerned with the care or welfare of the child, or the next of kin or those concerned with the mental welfare of the mentally subnormal person, should be brought before the administrators of the Children's Acts without delay.'
Stated in full, as they are above, these proposals may appear to be more complicated than they really are, especially by virtue of including no fewer than six brackets of age groups to which different provisions apply! At least the present heterosexual age of consent for girls, at sixteen, however arbitrary it may be, has the virtue of being simple and clear to everyone. The man who goes to bed with a fifteen-year-old girl knows he is playing with fire, and can have no excuses. Shouldn't any replacement law be at least as clear?
We like to think the PIE proposal is clear and simple. Put at its simplest, no one would have to worry about age provisions at all in their choice of a sexual partner; but they would have to have their partner's consent. And we believe that consent is the important factor, not age. It is also important that there would be a responsibility on the adult not to try and engage a child in any sexual activity likely to prove harmful: this would rule out inappropriate activity, such as intercourse with an apparently willing, but very young child.
Only 'the administrators of the Children's Acts' would need to concern themselves with our various age groups. In other words, the local authority children's departments, who deal with care orders, and the juvenile court magistrates who grant such orders. Just as the local authority may decide that a child needs to be taken into care, so could it decide that a sexual prohibition in relation to an older partner would be in his or her interests. Juvenile court magistrates could then uphold or reject their application according to their judgement of the facts. It is important to note that this would be a civil court hearing, not a criminal court one. Magistrates can sit in either capacity. So there would be no trial. No one to find innocent or guilty. Instead, the magistrates would be deciding whether or not to let a relationship continue.
How would they make such a decision? What evidence would they take? What principles would they adopt? It is important to get these matters absolutely clear, if only because there is already some evidence that our intentions have been misunderstood, and have been wrongly supposed to lack consistency with our aims.
It will be remembered that one of PIE's main concerns in formulating the proposals was that children should not be unnecessarily required to submit to cross-examination in the witness box. Yet here we are proposing a hearing before magistrates which must surely involve the taking of evidence from children. It has been suggested that for magistrates to prevent the continuance of a relationship, there would have to be proof that at some point sexual activity had in fact taken place; and if the elder partner chose to deny that, there would have to be a formal establishment of the facts deploying the normal rules of evidence, including fierce cross-examination of the child.
But this is not the case. Unlike a trial, the object of our proposed hearings is not to establish beyond reasonable doubt what occurrences may have taken place in the past. Instead its purpose is oriented towards the future: to assess what will henceforth be in the best interests of the child.
Evidence from the history of the relationship would of course play an important part in making a sensible decision, but there is no reason for the entire decision to hang on this: the court would also have available to it the immediate evidence of the child, which could in these circumstances be quite safely conveyed to the court in the Israeli manner, via a 'youth examiner' standing in for the child. In other words, the child would be able to convey to the court whether she or he would be happy to go on having a relationship with the older person in future.
She or he would be able to tell the court quite clearly regardless of whether sex had actually taken place in the history of the relationship her or his attitude to having a sexual relationship, or even just a social relationship, with the older partner in future. If the younger partner appeared in the least bit afraid, or doubtful, about the continuance of a relationship, whether sexual or not, or did not appear to be able to communicate her or his feelings to adults, the court would he empowered to prohibit the relationship from continuing.
Prior to the court hearing, the 'youth examiner' would have been able to ask the child, in an informal setting, in the child's own home, to talk freely about any aspect of the relationship thought to be relevant not least about whether the child simply liked the adult in question. The interview would not have to confine itself to the narrow question of particular sexual acts, though the child would be given ample opportunity by the 'youth examiner' to say if she or he found any such activity to be unpleasant, or if she or he had been cajoled, or bribed, into it. If the child claimed there had been sexual activity which she or he did not want, a criminal action could ensue.
It may be thought harsh for a prohibition against 'seeking out a child' to be granted against an adult merely because a child happened not to like him. But why not? Why should a child be pestered by an adult making a nuisance of himself. For a child to be given legal support in her or his reasonable wish to be left alone would be an important advance in children's rights. It is unlikely that any truly capricious complaint would be taken up, since, as will be remembered, PIE proposes that prohibitions should be sought via local authority action: totally insubstantial complaints would not be pursued by them.
Just to clarify a stage further the principles on which a prohibition would be granted or withheld, let's take an example. Supposing a boy's father sought a prohibition against a neighbour said to have been having anal intercourse with his twelve-year-old son. Deviously, this is widely regarded as an extreme form of sexual activity, especially in relation to a boy so young. The police would doubtless bring a criminal charge if there were the remotest indication that the boy had not been willing, and rightly, too. Supposing, then, that the boy, and the adult, admitted that such intercourse had taken place, and the boy stoutly stood by saying that he had liked it, and that he wanted to go on doing it. In line with the principles advanced above, no prohibition would be granted.
But let us be clear that such an outcome would be exceptional. 6 Even if PIE's proposals could be implemented in the present climate of society, it is probable that the 'youth examiner' would make every attempt to elicit any element of doubt in the boy's mind. He would have to be a very determined, self-knowing youngster indeed to resist the inevitable pressure on him to say that he wanted to give up the relationship. At the age of fifteen or sixteen such resistance might be more commonly found.
My guess is that even in relation to quite mild sexual activity, the refusal of a prohibition in relation to a child of less than thirteen or fourteen would be a rarity. On the other hand, children would be awarded protection which in law they do not have at the moment: in addition to being spared the ordeal of court testimony, a child could be spared the attentions of an adult who pestered her or him. At present, an adult who commits an indecent assault on a child may be fined, or given a short prison sentence, after which there is nothing to stop him from contacting the child in question again. A prohibition order would make such contact illegal.
Another question which appears to have caused some confusion, albeit in people who have written articles in the press without having bothered to read PIE's proposals, is whether PIE proposes an age of consent of nought, or of four years of age. Some newspapers have wrongly opted for the latter age, having failed to grasp that PIE's age groups in relation to sex between a child and an adult relate to the child's ability to communicate their consent, not to their ability to consent as such.
In the words of the PIE proposal:
'Whereas we believe that children of any age are capable of considering a sexual act pleasurable or not pleasurable, the extent to which this information, and therefore the consent, can be communicated to other persons varies.'
Thus PIE believes that a baby may well get a great deal of pleasure from having its genitals tickled. But if a prohibition were sought in relation to sexual activity involving a baby, the court could not be expected to determine whether a baby had enjoyed, and consented to, such an activity: the baby would lack the verbal skill to communicate its feelings to the 'youth examiner'. Nor would it be able to say whether it was happy for such activity to carry on in future. In such a case, in fact in relation to all cases of children under four years of age, a prohibition would thus be granted automatically.
Does this effectively mean an age of consent of four? Not quite. For it would be within the spirit of PIE's proposals, and an available option, for a citizen not to complain about a sexual relationship known to exist between an adult and a baby, providing that citizen had no reason to suppose the relationship was a non-consensual one. Even a police officer who knew of such a relationship would not be bound to seek a prohibition if he was satisfied that the baby was happy with it.
One might feel that this element of discretion operates at present in any case: since the abolition of the offence known as 'misprision of a felony', there has been no obligation on citizens to report criminal acts that they have heard about. The difference in this case is that the act in question would not be regarded as criminal, or as unlawful in any sense unless a complaint and a substantiated complaint were made about it.
There is of course another factor relating to the consent of children, especially very young children and babies, which is perhaps the major stumbling block for most people. This can be summed up in the phrase 'They don't know what they are doing,' or 'They don't know/understand what they are letting themselves in for/what the consequences will be.' This objection applies, and has to be countered, even if the infant or child did appear to give some sort of consent.
In the case of babies, however, it may be thought impossible for them to give any measure of consent. For although a baby may giggle and squeal with delight at having its genitals tickled, it is doubtful whether prior to that happening for the first time the baby would know that it would enjoy such a thing, or would be able to indicate to the adult that it would welcome the tickling. For the adult simply to go ahead and tickle on the assumption that the baby will be delighted may be thought presumptuous: one cannot do the sexual act first, and acquire the consent as one is going along.
While such a view has logic to it, in my view it fails to take any account of the likely circumstances in which such an act tickling a baby's genitals would take place. The 'offender' is most likely to be the child's parents, who from birth onwards have an intimate relationship with the infant, inevitably and necessarily, in terms of bathing, nappy-changing, breast-feeding, etc. In such circumstances it would be absurd to suggest that particular areas of the body should scrupulously be avoided by parental fingers. The 'impossibility-of-consent' viewpoint also fails to take into account that in infancy the baby has had no social or cultural conditioning against sexual activity; experience tells us that they do in fact enjoy gentle, age-appropriate stimulation.
Questions of 'consent' are taken up more fully in later chapters. My purpose here is simply to explain the nature of PIE's proposals and to iron out the one or two ambiguities and misunderstandings that appear to have risen in relation to them.
One minor accusation is that the PIE proposals replace an admittedly arbitrary age of consent, sixteen, with a whole lot of other ages which are equally open to question. One might ask whether four really is an age at which children have acquired verbal skills. Would three, or five, have been more sensible? Is any one age ridiculous? And what about the age ten, which is the divide between another of our categories? We say we have selected the age of ten because it matches the recognized age of criminal responsibility.
But what about if as I believe is provided for in the Children and Young Persons Act 1969 the age of criminal responsibility is raised to fourteen? Then there are our overlapping categories, within which children in defined age groups would be able to have sex freely with each other: the bands being 0-9, 7-13, 10-17. Where do we get these ages from? How do we justify their singular significance?
First of all it should be pointed out that the present age of consent is arbitrarily restrictive; by contrast PIE's proposals are philosophically permissive, across the whole age range.
Secondly, the present law is nothing like as tidy and simple as it may at first appear: sixteen is the heterosexual age of consent for girls. The homosexual age of consent for boys (or perhaps we should say men) is twenty-one. The ages of consent for homosexual activity between females, and for heterosexual activity in which the boy is the younger partner are much less clear. Unlike PIE's proposals, ages of consent have in the past been fixed less by reference to any clear philosophy than by dubiously researched notions of Parliamentarians as to when young girls' bodies become ripe. 7
The third, and most important point, is that by considering the development of children, and their ability to communicate consent at a variety of stages, one is paying due regard to the fact that children do develop; that a one-year-old is very different to a fifteen-year-old is perfectly obvious, but the present law accords the fact virtually no significance. 8 PIE's proposals do. The more one can discriminate between different ages, without creating an administrative nightmare, the more sensitively one can take action appropriate to a child's age.
It would be wonderful if the law could also take into account a particular child's stage of development, rather than his chronological age, since any particular child may be several years in advance of, or behind, the 'norm' in his ability to communicate consent. To a certain extent, PIE's proposals achieve this very thing, in so far as they recognize a broad range of ages from four to nine at which children may or may not be able to communicate consent, depending on their stage of development. In other words PIE recognizes the problem of arbitrariness, and no great store is set in the proposals on any particular age advanced in them: only the overall principle of putting consent first, rather than age, is of any significance.
There remains only one point in the proposals which does not entirely speak for itself. This is a reference to the 'moral danger' clause of the Children and Young Persons Act. This clause provides that if a child is thought by a local authority, or the police, or the NSPCC, to be in 'moral danger', she or he can be taken before a juvenile court, which can make an order that she or he be placed in local authority care, to isolate her or him from the 'moral danger'. The word 'moral' can of course be defined in a sexually restrictive sense, and in fact usually is. By calling for sparing use and 'stricter definition' of the clause, PIE is effectively suggesting that the word 'moral' should be defined in a way that would not automatically rule out sexual acts.
Some lawyers have been impressed by PIE's proposals. Others notably Richard Southwell QC 9 have had their doubts. Southwell felt that one could not have a system involving injunctions unless there was proof that sexual activity had already taken place. We see no necessity for this, but in view of the fact that proceedings are of a civil nature and could be held in camera so that no adult's reputation need be at stake, much less his liberty it would not be unfair to employ the Israeli 'youth examiner' system for the presentation of the child's evidence, if it were felt necessary to show reasonable grounds for believing that sex had taken place. In other words, the child would not, on any reading of the workability of the proposals, have to be cross-examined in court.
A far more important criticism lies in the fact that no clear distinction is made between different types of sexual activity. Whereas it may be felt harmless enough physically for a child to consent to masturbation with an adult, whether actively, passively, or both, or to oral sex (though there might be some argument about this), the same might not be felt in relation to coitus or anal intercourse.
No one in his right mind would suggest that a four- or five-year-old girl could validly consent to coitus with an adult, or a boy of the same age to passive anal intercourse. These activities would almost certainly involve excruciating pain and severe physical damage, to say nothing of lasting psychological trauma. A child who had not experienced intromission could not be expected to know these probable effects. In the circumstances, I would agree that any willingness on her or his behalf to accept attempted intromission would not constitute true consent, even if it did prove possible for the child to experience such sex as pleasurable.
This is probably the fear that most people have at the back of their minds when they think of little children not being old enough to know what they are doing. In a society in which children can learn about sex very early in life, without it being a dark, sinister mystery, where coitus between children themselves is an unremarkable occurrence such as the communes described by Johnston and Deisher I have no doubt that PIE's proposals would work as they stand, if indeed there was need for any law at all. For in such a society there would be no children beyond infancy who were too young to know what they were doing: a six-year-old who has already been penetrated by an eight- or nine-year-old would be well able to judge her or his own ability, or (more probably) lack of it, to enjoy penetration by an adult's penis.
We do not yet live in such a society. Maybe the only way to become one is to insist on changes in attitudes towards children, on much more advanced sex education and on sexual liberty among children, along with proposals such as those of PIE. Such would be a truly radical approach: a package deal for a better society. But for the moment there is an understandable fear which must be recognized, and I should say at once that, in so far as PIE's proposals appear to allow the penetration of very young children by adults, this was not intended: I believe such penetration would in practice be excluded by the clause making it a criminal offence for an adult to cause a child harm or suffering as a result of a sexual act.
Unfortunately, the proposals are solely retrospective in nature: they are capable, after the event, of being used against an adult who has actually harmed a child, but they do little to steer him away from possibly harmful activities before the event. In the absence of a clear, guiding criterion, the adult might be tempted to persuade himself that an act would be harmless which would in fact not be.
Should there be an age of consent, then, geared specifically to a child receiving (but not giving) penetration? On balance, I feel there is a need for this, 10 although in saying so I am departing from the PIE 'party line' that I have espoused for the last four years. What might such an age be, if it were to be based purely on the physical development of children in general to a stage when they were able to experience such activity as pleasurable rather than painful? (Emotional factors, knowledge of the world, etc., are dealt with elsewhere.)
We have seen that in other cultures custom allows children to receive penetrative sex by adults from as young as eight, and it seems improbable that such customs would persist if they proved to be physically damaging, 11 though it is still possible that they may be endured, rather than enjoyed, by some children. I do not want to be dogmatically precise about any particular age: it may even be that the appropriate minimum age for coitus is not the same as that for anal intercourse, but on the basis of the medical opinion I have sounded informally, making allowance for slower developing children, I feel that in both cases twelve would probably be about right.
Given that around 95 per cent of non-aggressive paedophilic sex with children under twelve is non-penetrative anyway, 12 I believe that such a restriction would be respected by paedophiles. I believe they would be able to understand the purpose of such a law, whereas the indiscriminate condemnation of even the most harmless, gentle and tender acts of loving which at present prevails is simply beyond their comprehension, and rightly so. In addition, as all sexual acts with the under-twelves are at present subject to the possibility of many years' imprisonment, it may well be that among the remaining 5 per cent some thinking along the lines of 'May as well be hanged for a sheep as for a lamb' will have played a part.
At all ages there is some physical danger associated with penetrative sex, especially for females, who may contract cervical cancer. While this disease is not unknown in virgins (about one in every 250 cases, on average, occurs in women who have never had coitus), 13 it should be realized and pointed out to young people that its development in the middle and later years of life is associated with a variety of factors, including starting coitus young. 14
There are those who see this as an 'age of consent' issue, although such a view rests on the doubtful assumption that any such legal age is a complete determinant of when youngsters start their sex lives: a recent survey suggests that around one in five youngsters (21 per cent) now have sexual intercourse below the age of consent. 15
What's more, because adults try to make juvenile sexuality go away by pretending it doesn't exist (school sex education lessons often say a lot about genes and Fallopian tubes, but offer no practical information on birth control or the symptoms and treatment of VD), young people are in practice exposed to sexual problems without having the faintest idea of how to deal with them. And they can be dealt with: the cure rate for cervical cancer, for instance, is 100 per cent, providing that it is detected early, and with modern methods of treatment the surgery required is minor rather than drastic.The sensible indeed the responsible way to tackle the medical problems of sex is emphatically not to bury one's head in the sand. Where the sex life of adults is concerned, the point is slowly being taken. Hence the development of public health policies aimed at encouraging those suffering from sexual complaints to seek treatment. No one suggests that adults should be celibate in order to avoid the problems.
Why, then, should this be suggested in relation to young people'? The trouble is that sexual diseases (and, to a lesser extent, pregnancy outside marriage) are regarded as especially terrible and degrading. As a result, a cloud of secrecy surrounds the subject, especially for the young, because their sexual activities are not regarded as legitimate: in these circumstances, the sexually afflicted are often too anxious or ashamed to seek treatment, so that the problem inevitably becomes worse.
Instead of outlawing the sexual life of the young, it would make much more sense to extend public health policies to include them. There is no reason why check-ups for VD should not be included (on a confidential basis) in school medical examinations. Cervical smears among sexually active girls could also be undertaken in schools at very little cost above that of existing school medicals, 16 and this would be a golden opportunity to impress upon such youngsters the need to go for voluntary check-ups at regular intervals after leaving school. At present, there is a distinct social class bias in voluntary screenings among adults, in that the knowledge of the importance of such screenings is much greater in the middle classes and above than in the working class: a more active schools policy could play an important part in reducing this bias.
Folklore also has it that anal intercourse is dangerous, but this is not the case. The Wolfenden Committee had this to say:
'As regards the offence itself, the risk of physical injury to the passive partner, especially if young, has been mentioned to us as a justification for attaching a specially heavy penalty to buggery. Our evidence suggests that cases in which physical injury results from the act of buggery are very rare.' 17
Perhaps the greatest physical problem of all in connection with sexuality is that of the unwanted baby, and in a sense this hasn't anything to do with paedophilia at all: male heterosexual paedophiles are predominantly attracted to girls in the later pre-pubertal age range, at a stage when they are not capable of conception. The thirteen- or fourteen-year-old-girl who has an unwanted pregnancy is far more likely to have become pregnant by a boy of the same age, or perhaps a year or two older, than by an adult. For boys, the issue obviously does not arise, though interestingly enough an adult woman was recently successful in filing a suit for the maintenance of her child against his twelve-year-old father.
I don't know whether there was a stipulation that this should come from his pocket money, or whether the order was to apply only from when he came of age. Nevertheless, it is an example of the confused state of legal thinking: if a boy is old enough to be responsible for the consequences of his sexual actions in this way, how can he possibly be considered incapable of consent? The law (in this case German law, I believe), quite illogically, tries to have it both ways.
Arguably, the sexually free society that I am advocating would be one in which there would be more sexual expression between adolescents, as well as between adults and children, and that more unwanted pregnancies would thus occur. Given society's existing reluctance to teach children about birth control this might be true. There has to be a change of heart. 18
There must be teaching of birth control methods in schools and the ready availability of contraceptives (either free, or at a not-prohibitive rate) to youngsters. A start in the right direction has been made at Doncaster, where community physician Dr Robert Stalker has opened a family planning clinic for adolescents, where it is possible for girls as young as twelve to be given the contraceptive pill. 19The question of 'sexual exploitation', what the concept entails, and whether paedophilia is necessarily exploitative, will be explored fully in another chapter. What I hope readers will accept is that the nature of PIE's legal proposals does not lend support to the view that PIE as an organization sees no distinction between sexual liberation and sexual exploitation. Indeed, the principal author of the proposals, Keith Hose, had been largely inspired in his thinking by those radical elements within the gay and feminist movements who were most concerned with acting to eliminate 'sexism', 'manipulation', 'dominance', and 'exploitation', in both interpersonal and societal structures.
For him, one of the key elements in the proposals was that for the very first time they would give the child a say in her or his own sexual destiny. The effect would be liberating, not so much to the paedophile, but to the child. It would be the economically and socially weaker partner in the relationship, the child, whose views would constitute the clinching factor in whether a prohibition against an adult partner would be granted. Not the local authority. Nor the police. Nor any other complainant. And certainly not the paedophile.
Not even the parents, for although I do accept that most parents are loving, are concerned, and that their views should be taken very seriously into account, it should never be forgotten that not all parents are all that they should be. The PIE proposals would not give carte blanche to any adult to exploit a child. The criminal law would still be in operation against obvious offences, and the child would be given every opportunity and encouragement to terminate an unsatisfactory and exploitative relationship.
Nor would it be a matter of 'big brother' knowing best. Neither authorities nor parents would be allowed to usurp the child's newly asserted right to control over her or his own body. The legislation would not be patronizing and 'protective', on the Israeli or De Francis models, but would be philosophically based in the notion that children have rights, including sexual rights. The background to this philosophical claim is discussed in the next chapter.
Ch 6 - Notes and References
1. See p. 210 ^ [NOTE: Use the following link to access the reference, then manually return to this footnote by searching for See p. 210 (without quotes) LINK= ^]
2. David Reifen, 'The child as victim of a sexual offence: a new method of investigation in Israel', British Journal of Psychiatric Social Work, Vol. 4, 1958, pp. 11-17. ^
3. V. de Francis, Protecting the Child Victim of Sex Crimes Committed by Adults, American Humane Society Children's Division, Denver, Colorado, 1969. ^
4. There is a role for protective legislation for men as well as children and women, particularly in the field of dangerous working conditions; but for the most part such laws do not need to address themselves to the age or sex of those who are to be protected, as much as to the implementation of training standards, provision of safe equipment, etc., appropriate to the work involved. ^
5. Evidence on the Law Relating to and Penalties for Certain Sexual Offences Involving Children, for the Home Office Criminal Law Revision Committee, PIE, London, 1975. ^
6. In any case, in present law the boy's parents would still have the power to stop their son from seeing the man. As the author of PIE's suggested legal system said to me in a private communication: 'We are at the contradictory point here between patchwork proposals and social revolution.' I deal with some 'revolutionary' implications in the next chapter. ^
7. Alan Milner describes the genesis of the Indecency with Children Act 1960 in scathing terms in the British Journal of Criminology, Vol. 2, 1962, pp. 282-91. ^
8. The law does, however, provide a heavier maximum penalty for sexual intercourse with a girl under thirteen (life imprisonment), than for the same offence involving a girl between thirteen and sixteen (two years' imprisonment). ^
9 Richard Southwell had occasion to read the proposals in connection with an enquiry commissioned by the Open University, relating to my employment with the University. ^
10. 'Penetration' could be defined very generally, to include the insertion not only of the penis into the anus or vagina, but also an adult's fingers, or any object, except for legitimate medical reasons. It could also include penetration of the mouth. ^
11. The Lepchas of Sikkim believe that sex is positively necessary for a girl's healthy development. Until she loses her virginity, the Lepchas aver, a girl will not begin to menstruate, nor will her breasts grow, except by the intervention of supernatural forces. Lepcha girls are betrothed from eight onwards (boys from twelve), and 'the period between betrothal and marriage is usually the time of greatest sexual adventure and promiscuity' (G. Gorer, Himalayan Village, An Account of the Lepchas of Sikkim, Michael Joseph, London, 1938, p. 317).
What is more, the girl's first experience of sex is usually with an adult:
'When they are not deflowered by their spouse (this sometimes happens) girls would seem to start their sexual life with unrelated men, often it would appear with visitors to their village. Among the Lepchas the difficulty of talking to women on such subjects was not, as more usually happens, the jealousy of the husbands, but the fact that almost every woman from eight to eighty interpreted any sort of special attention as an attempt at seduction, an attempt which no matter what their youth or age they had no intention of repelling' (Ibid., p. 327).
In these circumstances, it seems likely that most eight- or nine-year-old virgin girls would have a good idea of whether sex with a grown man was, or was not, likely to be painful or damaging: the Lepchas talk freely about sex; it would seem reasonable to expect that younger girls would hear from slightly older ones, who had had sexual experience with men, what it was like. Gorer's comment, above, which appears to indicate widespread enthusiasm for sex amongst females of all ages, including very young girls, suggests that sex between pre-pubertal girls and men is not experienced as deleterious by the girls themselves.
It is probable that gentleness is required in such intercourse, for the anatomy of the pre-pubertal vagina suggests a difficulty. Till about the age of puberty, the wall of the vaginal tube is made of thin, smooth, inelastic membrane, which could be over-stretched or broken by a thrusting penis in intercourse. About the age of puberty, the smooth vaginal walls start changing into deep, accordion-like folds of membrane, so that intercourse momentarily opens out the folds, rather than stretching or tearing flat membrane. (See A Brief Thesis on Rugae Vaginalis, by Norman Casserley, available from Childhood Sensuality Circle, California.)
The development of the vaginal folds is accounted for by the hormonal changes of puberty. If the production of hormones is terminated in maturity, by surgical removal of the ovaries, the vagina will tend to revert to a less elastic state and, as at the menopause, there will be a 'drying up'; both these factors, but principally the latter, sometimes make intercourse unpleasant or painful for women who have experienced ovarectomy (see p. 237). [NOTE: p. 222 in this e-book version.]
It is a great pity that, for virgin females of whatever age, experience of intercourse for the first time is associated with pain rather than pleasure, on account of the unbroken hymen. This factor alone is probably responsible for a massive amount of anxiety, and fear of sexual experience, and this may colour attitudes to sexuality for life it may especially, in retrospect, serve to bolster the feeling that 'children need to be protected from sex' (when what is really meant is that they need to be protected from an unpleasant introduction to coitus, as opposed to other forms of sexual expression). In some societies, a routine, minor operation is carried out on all girls in infancy, to painlessly remove the barrier presented by the hymen, thus avoiding the later trauma of a crude 'defloration'. (See Renι Guyon, 'Chastity and virginity: the case against' in A. Ellis and A. Abarbanel, The Encyclopaedia of Sexual Behaviour, Hawthorn Books, New York, 1961.) The operation, comparable in a sense to circumcision in boys, would also have great psychological merit in that it would dispose of the 'maidenhead' as a symbol of 'chastity' or 'virtue'. In its absence, girls might well be able to enjoy their first intercourse not only physically which alone would be an immeasurable benefit but also without a sense of loss, or defilement. ^
12. See Chapter 3 for figures from Gebhard, op. cit. ^
13. Basil Stoll, But Why Cancer, Sally?, Heinemann, London, 1976, p. 14. ^
14. 'Young', in this context, means the years immediately above the present age of consent, as well as those below it.
It should be realized that nearly all deaths from cervical cancer occur over the age of 25, and around 90 per cent occur in the over-40 bracket. Nevertheless, one of our 'quality' newspapers was not so long ago moved to reach for the headline, 'Big rise in death rate of girls under 20/"Early sex" link with cancer', and to run a first paragraph beneath it which spoke about 'misuse of the contraceptive pill' being blamed for a death rate from cervical cancer among the under-20s which had 'nearly doubled in five years' (The Guardian, 15 March, 1978, p. 4).
The rise referred to was from 5 deaths among the under-20s in 1970 to 9 deaths in that category in 1976 (The Guardian report, I subsequently discovered, was based on figures published in The Lancet, 13 May, 1978, p. 1031). There was no steady rise from the lower figure to the higher one, year by year. As one might imagine with such small numbers, the exact figure readily 'doubles' or 'halves' itself from year to year, without revealing any important underlying trend at all. Indeed, according to figures supplied by the Office of Population Censuses and Surveys, for 1977 (the latest year for which figures were available at the time of writing) deaths among the under-25s a category which takes in five more years than the Lancet figures, be it noted numbered just 2 (exactly the same, incidentally, as a decade before, in 1967, and two decades before, in 1957), from which one might have expected to see headlines about cancer deaths among the young dropping by more than three quarters in a single year!
After talking to The Guardian's principal informant for this story, Dr Robert Yule, consultant pathologist at the Christie Hospital, Manchester, I eventually discovered that there was a point of real substance to be made in it: that barrier protectives, such as the male sheath, offer protection against cervical cancer which the contraceptive pill does not give. Unfortunately, the point was totally lost in the story by casting juvenile sexuality as the villain of the piece. ^
15. C. Farrell, My Mother Said ... the way young people learned about sex and birth control, Routledge & Kegan Paul, London, 1978, p. 21. An American survey has indicated that 20 percent of thirteen- and fourteen-year-olds have had sexual intercourse, despite similar (and in some states, higher) age-of-consent laws to those in Britain. (This figure, taken from a recent US Congressional survey, was published in Newsweek, 7 May, 1979, p. 44.) ^
16. A cost loading of around 25 per cent has been suggested to me. ^
17. Report of the Committee on Homosexual Offenses and Prostitution, op. cit., p. 32, para. 85. This is not to say there are no adverse effects. Minor lesions, as opposed to major injuries, do sometimes occur. Even adults may find the act is painful, through this response tends to diminish with experience, as the art of learning to control certain appropriate muscles is mastered, and as the anal sphincter becomes stretched (as it does) by repeated intercourse. (Information from experienced homosexual sources. See also Policy Advisory Committee on Sexual Offences, Working Paper on the Age of Consent in Relation to Sexual Offences, HMSO, London, 1979, Para. 61.) ^
18. At the time of going to press, it is encouraging to see that such a change of heart may soon be a real possibility. The recent report of the National Council for One Parent Families Pregnant at School (NCOPF, London, 1979), recommended that from the first years at secondary school, pupils should be given 'specific and accurate' information about contraception. ^
19. I cannot believe that it is right that a girl of twelve or thirteen who does become pregnant should be obliged to become a mother. Distressing and unsatisfactory though it is, abortion is far less disastrous in such circumstances than an unwanted baby, and should be available free on demand to adolescent girls. Some will argue that the encouragement of juvenile sexuality will result in an increase in the necessity for abortions.
Given the whole-hearted approach to birth control that I have suggested, this need not necessarily be true (it should also be related that there is a phenomenon known as 'adolescent sterility': the fertility rate is low amongst juveniles), but in a context in which an abortion can be easily obtained through reliable medical services, early in the pregnancy, without stigma or recrimination, a limited increase in the number of abortions would still be nothing like as horrific as what happens at present.
The dark side of our sex-negative approach is that many pregnant girls find themselves, because of their guilt feelings and anxieties about parental and societal retribution, unable to talk to anyone about their pregnancy, or to do anything about it. The problem inevitably becomes an inescapable nightmare, growing, month by month, sometimes to the sorry, sordid outcome of a baby dumped by the desperate mother in a dustbin or rubbish chute. ^