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3. THE SIGNIFICANCE OF THE BOYS' STATEMENTS FOR THE LAW
3. THE SIGNIFICANCE OF THE BOYS' STATEMENTS FOR THE LAW The Importance of What the Boys Told WHAT IS THE SIGNIFICANCE of what the boys said? First of all we might ask how truthful it was. Then, if it was honest, what weight should we attach to the fact that they found their friendships and sexual contacts so pleasurable? Are there other, possibly long-term, consequences of the contacts? Secondly, how representative of the experiences of other children who have sexual contacts are those of these 25 boys? Opinions will differ about the "degree of truth" in the boys' stories. It is often said that in research carried out through interviews people as a rule don't do what they say or say what they do. To a certain extent this applies to the 25 boys. But all research techniques have their limitations. Structuring the interviews by means of the Self-Confrontation Method largely disposed of this objection (Sandfort 1981 a). It is also easy to dismiss what these boys said as "children's talk": children don't know what they are talking about; they just repeat what others have said. It is true that occasionally one heard echos of the older partner's ideas. But in general one's impression of the stories of these 25 boys was that they were spontaneous and genuine. They were internally consistent and the boys didn't seem to be hiding anything. They had negative things to say about adults and they also expressed their doubts. Mostly due to the influence of Freud's psychoanalysis, little credence used to be given to children when they said they had been sexually abused. Such tales were regarded as fantasy. Now they are taken more seriously. And that can only be for the best, because knowing you will not be believed is often for the victim of real child sex-abuse reason enough not to speak about what happened, with the result that the abuse continues. Disbelief also hinders one's coming to terms with the events. On the other hand it is also prejudicing the situation to take seriously what young people say about being sexually abused but to dismiss as "just kids'talk" anything they tell us which does not conform to current concepts of childhood and its sexuality. It is necessary, however, to keep in mind that some boys, later in life, can change their minds and come to view their experiences differently. Are the experiences of these 25 boys comparable to those of other children who have sexual contacts with adults? It has never been our aim to make this sort of generalization from our investigation. Still, we should pause here for a moment and examine this question more deeply. The sexual relations described in this book were exclusively between boys and men outside the family context. Furthermore the boys were between certain set age limits. It is quite possible that younger children, in an earlier stage of sexual development, would experience sexual contact with an adult differently. Other forms of pedosexual contact, such as between boys and women, girls and women and girls and men, were not dealt with here. Obviously they would be differently structured and differently experienced. Although no selection was made of the boys asked to participate in this investigation, they are probably still a rather select group. Obviously we would not have had such easy access to boys who were involved in relationships where there was a clear abuse of power. However, almost all previous research on sex between children and adults has been grounded on the reports of "victims" seeking help or of people who, because of their sexual behavior, have come into contact with the police. The biased picture emerging from such research is to some extent counter-balanced by this investigation. It would be absurd to conclude from this study that every child likes having sex with adults: we know too much about the frequency of real sexual abuse. And it is not just girls who are sexually abused: boys are, too. This investigation does, however, permit us to say that there are children who, without having many problems, enjoy friendships with adults and the sex which takes place within them. Sex, Alcohol and Driving THE FACT THAT THESE 25 boys had mainly pleasant experiences does not mean that pedosexual experiences are necessarily good for them or that adults should approve of them. What is good for the child cannot be determined quite so easily. That is dependent upon, among other things, the norms and values to which people adhere. When in 1985 the government released its proposal to lower the "age of consent" (below which all sexual contacts with children are forbidden) from 16 to 12, objections flooded the newspapers. From De Telegraaf9: "No alcohol, no driving, but sex is okay under 16!" wrote one of the readers. Comparisons with drug use were also made: you don't let children use drugs either. Now, we know from experience that drugs are harmful; obviously children have a right to be protected from drugs, and this protection can be achieved to a very high degree by teaching them how to deal with such dangerous substances. But we simply do not know the consequences of a child's sexual experiences, at least those which are consensual, for later in his life. What is known is that a restrictive sexual upbringing and a throttling of sexuality can lead to problems in adulthood. Money (1980) suggested that sexual experience in early life was important for a "healthy" sexual development. (One can also question whether it is right to make the privilege of driving an auto dependent upon reaching a certain age rather than having acquired satisfactory skills (Farson 1978).) Significance for the Future THERE WILL BE boys who will later recall with pleasure and appreciation the older partner and the friendship they shared. Sometimes this is evident in the human bond which remains after the erotic relationship has come to an end. However it is also possible that there will be boys who change their minds about what they had done, or possibly even come to regret it. At some point in his life each has to amalgamate this experience into his own personal history. And that is not always easy to do, not just because these experiences are so unusual, but because they concern something which society at large abhors. Possibly the once-pleasant experience will, in being recalled later, take on a negative shading, or the individual will prefer to forget about it because it does not conform with the image he wishes to have of himself. It is also possible that shortly after the sexual events some young people might realize that their dependent position had been abused, although that seems unlikely in the case of these 25 boys. Great stress is placed in the literature upon the reaction of the child's environment if it comes to light that he has had sex with an adult. According to Weeks (1976) parental response is the single most important factor in determining what effect this will all have upon the child (See also Zeegers 1968, Van der Kwast 1975). Also if the discovery results in a court case this can turn the sexual contact into a negative experience. We did not investigate the effect of the sexual relationship upon the child's later life. A great many people assume that sex with an adult is, per se, damaging; this is an important reason why they oppose it. It is not easy to dispose of this question. What really are the damaging or negative consequences? Some would cite being "turned into a homosexual". But when a boy who has had sex with men later appears to be homosexual it is unclear whether or to what degree the early sexual contacts have played a role in his becoming so. One of the problems of investigating the effects of early experiences is that it is always difficult to tell what is cause and what is effect. This problem is intensified by the fact that such research usually relies upon retrospection whereby it is not always clear how far the memories coincide with what really happened. Forgetting and recoloring are all too common. Can you really be made homosexual by having sex with men? O'Carroll (1980, p. 61) answered this question: "The radical response is not to cite research which proves this isn't so-which is actually the case-but to answer, 'Well, what is wrong with being a homosexual?'" Tolsma (1959, p. 37), who did a follow-up study of 133 minor "victims", came to the rather reassuring conclusion that "the seduced person, after going through the seduction experience, finally gains a normal heterosexual preference." There might be less extreme consequences. From the investigations discussed above, with all their limitations, no concrete conclusions can be reached. But Landis (1956) concluded on the basis of his own research that the great majority of his "victims" seemed to recover (wherever that was necessary) rather quickly. Burton (1968) used a control group so that children who had had these experiences could be compared with children who had not. She could discover no negative effects upon the child's personality development. Corstjens (1980) found neither a positive nor a negative influence of pedosexual experience on the person's sex life later. It would be easy to cite other investigations (Brongersma 1980). That pedosexual contacts have no adverse effects upon children can also be seen in summaries of previous research (as, for example, in Powell & Chalkey 1981), and on this basis Van der Kwast (1975) felt it was not stretching matters to say that sex with adults, in itself, does no harm. One could just as easily cite researchers who concluded that sex with adults does harm children (see, for a summary, Steele & Alexander 1981). Constantine (1981) examined both sorts of research. He dicovered there was a great diversity of reported consequences to the child, running all the way from positive to negative. He found no evidence for any inevitable long-term or short-term consequences. According to him the most important factor in a pedosexual contact is whether the child participates willingly in it or is forced; in the latter case the chance of it harming him is greater, but with children who themselves take the initiative the chance is correspondingly smaller. Most important, he felt, is how the child himself thinks about the occurrence. The Law THE KIND OF SEXUAL contacts described in this book between man and boy are illegal under our penal code. The articles in it which deal with sexual matters have been under discussion for some time. What might be the importance of these 25 boys' experiences for this discussion? Before we can answer this question we must examine the law and especially some recent developments around it. Between 1970 and 1980 the so-called "Advisory Commission on Moral Legislation" worked on recommendations for legal reform. Other people and organizations prepared studies, proposals and commentary. The Commission's final recommendations, handed in to the government in 1984, attracted some rather negative responses. At the end of 1984 the government came up with proposed legislation which was largely based upon these recommendations; a year later the legislation, in slightly more finished form, was submitted to the Raad van State10. The words "criminalization" and "decriminalization" are important in moral legislation discussions. Decriminalization means changing the law so that formerly illegal acts are made legal. Thus decriminalization would occur if the age of consent of 16 were lowered or abolished. Criminalization occurs when an act which was formerly legal is made illegal. The Articles of Law SEX BETWEEN MEN and boys falls under Article 247 of the Penal Code. It reads that anyone "who is guilty of indecent behavior toward someone under the age of 16 or who tolerates or gives a third person opportunity to have indecent behavior with the latter" can be punished by a maximum of 6 years in prison. There are four other articles dealing with sex with minors, the most important of which is Article 249 which makes illegal sex with one's own minor children, step-children, foster-children, one's students or any other minors who are entrusted to one's care in education, up-bringing or guardianship. Incest between parents and their children falls under this article. Article 244 punishes intercourse with a girl under 12. It makes no difference under these provisions whether the sex is consensual or forced. There is also no minimum age set for the "perpetrator", thus, in theory, sex between children themselves is also an offense. In this latter case, however, the law seldom prosecutes. Nevertheless Wolters et al (1982) reported that in their research on sexual abuse 6.5% of the perpetrators were younger than 16. A Law with a Long History TODAY'S MORAL LEGISLATION, like much of our Penal Code, goes back to 1881. In the last 100 years there have been a number of revisions. In 1911 the law was strengthened so that, among other things, homosexual acts between adults and minors (i.e., persons under 21) were made illegal (Article 248 bis; Salden 1980). During the 1970s a number of articles, including 248 bis, were abolished (Brongersma 1984). Before the Penal Code became effective in 1886, The Netherlands used the French Penal Code in which no ages of consent were given for mutually consensual sexual acts. In other words, before 1886 there was no prohibition against sexual contact with children such as now exists. In the drawing up of the new Code the former lack of an age of consent was considered an unfortunate omission. That sex harmed children was thought self-evident by 1881. This change in thinking was in part brought about by the general concern at the time over sexual and hygiene problems of certain large groups in the society, such as venereal disease amongst prostitutes. Under the influence of the newborn women's movement and the sexual reformers, people were activated into trying to solve these problems. The rise of medical science made that possible. It wasn't, however, simply a matter of practical concern. The rapidly growing Christian parties joined the fray and took up arms against supposed moral corruption. This preoccupation was not totally senseless: industrial development called for a healthy work force. The imposition of an age of consent was also influenced by a trend which had already begun in the 17th Century. A separation was growing between the child's world and the world of adults (Van Ussel 1976). The child was increasingly considered innocent and pure, a being who ought not to come into contact with sex. The Final Report of the Advisory Commission on Moral Legislation (1980) traces the origin of the ages of consent for each of the articles. When the Penal Code was written the legislator did not see himself as a controller of people's morals. "Protecting people against voluntary moral corruption is not the job of the Penal Code." That was also the view of the majority of the Lower House at the time, and the principle is still adhered to, although, according to Brongersma (1984, p. 32), not always successfully. "The confusion and mingling of law and morality are hardly exceptional both in judicial decisions and in legislation. The legislature immediately got off on the wrong foot when it wrote into the new Penal Code such terms as "indecency" and "indecent conduct". A New Moral Law? BY THE END OF THE 1960s people had started to think differently about sex. Many aspects of it were being frankly discussed. This liberalizing trend cannot be separated from other social developments, such as the waning influence of the churches. With student and other protest movements, a new way of looking at authority arose, and parallel to this, new value was attached to the development of human potential. Moral legislation was perceived as rather old-fashioned; criticisms of the law were brought to the legislature. At first they were directed against Article 248 bis (homosexual contacts with young people under 2 1). Later people asked themselves whether the whole body of our moral legislation didn't need revision. In the meantime, police and Justice were showing more tolerance of exhibitionism and sex with minors. Convictions for sexual contact with children under 16 (except for those within dependent relationships) per 100,000 residents declined from 10.7 in 1950 to 3 in 1970 and to 0.7 in 1982 (Frenken 1984). Increasingly prosecuting attorneys decided not to prosecute. Prison sentences were shorter and more often suspended. Activities of the Advisory Commission and Others ONE OF THE FIRST actions of the Advisory Commission was to make an inquiry among a number of institutions, and one question put to them concerned ages of consent. The responses varied. Among other proposals was that sexual contact under 14 be illegal (The Society of Secretaries of Child Protection Agencies), an age also supported by the Netherlands Psychoanalytic Society and the Psychoanalytic Association, which noted in addition that the rapid changes in society might soon make a further lowering in the age of consent necessary. The Catholic Youth Council for The Netherlands proposed two ages of consent: 14 for boys and 13 for girls, but said that punishment should not take place if the child, even though younger, was already sexually mature. The Netherlands Youth Association proposed an age of consent of 12. Finally there were institutions which wished to see ages of consent abandoned altogether (among others, the Protestant Alliance for Child Protection, the Association for Medical Sexology, the Coornhertliga, The Socrates Humanistic Foundation and the Netherlands Institute for Social Sexological Research). The most important reason they gave was that children were already adequately protected by other articles in the Penal Code. In the final analysis the Advisory Commission ignored this advice. Neither the inquiry nor its results appear in the Commission's Final Report. The above information is taken from "Ages of Consent in Moral Legislation" published in 1978 by the NVSH. One of the conclusions of this NVSH report was that in cases of abuse there were already other articles in the Penal Code which did not cite ages which could be used in prosecutions. It also stated that scientific study had not found sexual contact in itself harmful to children, harm being an erroneous premise of the 1886 law. The report gave four criteria for punishing people who had sexual contact with minors:
The same conclusion was reached by an expert committee appointed by the National Center for Public Mental Health and chaired by Dr. W. Sengers. In its report Pedophilia and Society the committee came out against continuing legal prohibitions against sexual contacts between children and adults. There was no sound basis for doing so, according to the committee, since no one had yet demonstrated that voluntary sex contacts ever resulted in either psychological or physical harm. Further, they found these prohibitions an unjust invasion of an individual's right to sexual self-determination, in this case that of the child. The maintenance of criminal sanctions prevented a more rational and subtle consideration of child sexuality and pedophilia and made assistance to those who were having problems in this area infinitely more difficult. Another argument they put forth cut to a much more gruesome consideration: making these contacts illegal actually increases the chance of a child involved in them being killed. That happens in The Netherlands on average once a year. The committee also felt that the legal impotence of minors ought to be ended. In August 1979 the Advisory Commission on Moral Legislation received a petition to liberalize the Penal Code as much as possible (Eindrapport 1980). The petitioners claimed that the criminal statutes could be a hinderence to young persons' freedom to engage in such mutually consensual sexual activities as they chose. The petition was drawn up by the Coornhertliga, the Humanistic Union, the NVSH and the late radio minister A. Klamer. It received broad social support; leaders of the following political parties signed it: Labor, PSP, D'66, PPR and JOVD11. It was also signed by the Man/Woman society, the Netherlands Women's Movement, the COC, the Netherlands Youth Work, the General "Reclassering" Society12, the General Society of Educators, the Netherlands Society for SocioSexological Research, and lots of other organizations, as well as many influential individuals including scholars in philosophy, criminology, penal and child law, psychiatry and psychology. Early in 1980, not long after this petition to the Advisory Commission, came a letter from the Child and Youth Psychiatry Section of the Netherlands Psychiatric Society (Eindrapport 1980). It claimed that the petition was not drawn up in the interest of the child, as it claimed, but "in the interest of the pedophile ( ... ) regardless of whether the child initiates such contacts, wants them, dislikes them or is compelled to participate in them". The Child and Youth Psychiatry Section was of the opinion that the child (and his parents) should be protected from desired sexual approaches as well. It found it "an absolutely wrong assumption that adults and children are psychologically equal partners in the sexual area. Children under 12, even adolescents, have neither emotionally nor cognitively reached such a level of equality that one could approve of them having erotic or sexual relations. with an adult who so wishes. In our opinion they cannot have acquired enough knowledge and insight to be able to foresee the consequences which might ensue from having such relations." Because the psychiatrists thought that an abandonment of legal prohibitions would be an invasion of parental authority, they pled for the maintenance of the ages of consent. The Final Report of the Advisory Commission IN 1980 THE ADVISORY Commission published its final report. It dealt with rape and assault, sexual contacts with minors and sexual contacts with dependent persons. Its starting point was the protection of personal integrity from its violation by others. With respect to sex, this meant that the citizen's freedom to accept or reject sexual relations must be protected. The legislator, according to the Commission, "must set up norms to protect people whose capacity for sexual self-determination has not yet been attained" (Eindrapport, page 10). The Advisory Commission felt that the State must not control morals. The expression "indecent conduct" no longer appears in the Commission's proposals. Both criminalization and (limited) decriminalization are proposed. Article 244 would no longer apply just to sexual intercourse with girls under 12 but to all similar behavior: every kind of genital, oral and anal contacts irrespective of who did what to whom. Article 244 would also apply to boys. In all these measures there is a criminalizing tendency. Decriminalization can be seen in the proposed new Article 249 (sexual contact with dependent persons): age of consent would be reduced from 21 to 16. With respect to sexual contacts with other minors between the ages of 12 and 16, the adult would only be punished if he "induced the young person to tolerate or participate in sexual activities." if the child himself took the initiative, such sexual contact would fall outside the jurisdiction of the law. The Commission made this change because it was "less evident" that such contacts per se were physically or psychologically damaging. In its justification it placed the emphasis upon protecting the personal integrity of the child. The difficult-to-determine matter of whether consensual sex with adults is or is not harmful for children was thus ingenuously avoided. It follows, then, that the Commission supposed that where the older partner takes the initiative he is always making use of a power advantage inherent in their psychological inequality. "The way in which the perpetrator induces the younger partner to tolerate or participate in the sexual activity is of no concern to the law because an abstract evaluation of the events is irrelevant. The objections lie in the psychological and situational inequality between the perpetrator and the victim; how use is made of this is another matter." (Eindrapport, page 31) Apart from this, the Commission made no other "age provisions for the perpetrator"; in other words, if anyone under 16 induces another person of its own age to have sex with him, he would still be subject to punishment. Commentary on the Final Report THE REPORT WAS widely discussed (for example, see Den Brouwmeester 1980, Zeegers 1980, Brongersma & Van Naerssen 1981, Maasen 1981, Sandfort 1981). Criticism was mostly leveled at the term "inducing", and the proposed ages of consent were thought to be too high, especially considering what is scientifically known about the sexual behavior of young people. The Advisory Commission appealed to "data" but did not cite their source, which was something the critics did do. The makeup of the Commission was also criticized: most of the members were jurists and criminologists. They were competent to deal with assault and rape but not, really, with child sexuality and pedophilia. The criminalizing tendency of the Final Report also came in for some criticism. Zeegers (1980) quoted with approval Mrs. Davelaar (1980): "Feminist pressures must not result in so many new details being introduced into the law that its protection function is lost." Soetenhorst-de Savornin Lohman (1984) claimed that ever since 1965 the government has been going full ahead criminalizing all sorts of behavior and warned that the law would become ineffective and an empty symbol. It was expected that the government would draw up a proposed law in the spring of 1982. The National Council for Social Welfare organized a symposium "What limits?" in June of that year which was to contribute to current political discussions. There were both supporters and opponents of decriminalization. The psychiatrist Cohen-Matthijsen questioned "whether children between 12 and 16 were sufficiently developed to be allowed complete freedom with respect to erotic and sexual relations when they were not, or should not be, in other matters" (Symposiumverslag, page 44). Zeegers, also a psychiatrist, said that having sexual contacts which did not involve force, coercion or violence punishable under law was more harmful to children than it was protecting. At the end of the Forum, a high functionary in the Ministry of Justice which was supposedly involved in the preparation of the new law proposal said that the limits to be set by the legislator would be where misuse of circumstance began: "limits which can be supported both by the campaigner against child sexual abuse and the advocate of good sexual relations between adults and children" (Symposiumverslag, page 57). It is questionable, however, whether the participants who had such divergent points of view actually came any closer together. The Children's Police also responded: they testified that the norms reflected in the law no longer conformed to reality (Soetenhorst-de Savornin Lohman & Jansz 1986). Alternatives to the Advisory Commission's Final Report were also suggested. Zeegers (1980), who characterized the proposals of the Commission as "a conservative revamping of the morality laws", suggested lowering the age of consent from 16 to 12 and punishing only those who induced children below that age to have sex. Children above 12 can and must "decide for themselves if they want to be persuaded to have sex by means of gifts, nice talk and other means." He wished to see the maximum prison sentence reduced from 6 years (as proposed by the Commission) to 3. Like many other organizations, the NVSH and the COC disapproved of the Final Report; they now suggested alternatives. With respect to ages of consent, they observed that the principal involved in coerced sex was no different for children than for adults. Thus necessary protection of children should not lie in laws governing sexual morality but in that part of the Penal Code which dealt with "crimes against individual freedom". One of the proposed articles should provide for the punishment of someone who "illegally compels a child under 12 to do something, not do something or tolerate something done to him" (Zeden en straffen 1984, page 48). A forum was called to study the proposal, especially its impact upon women. The First Legislative Proposal IN SEPTEMBER 1984 the government finally released its proposed law. It largely followed the recommendations and arguments of the Final Report. It recognized that a wide variety of acts fall under the present laws in which ages of consent are specified; "they vary from instances of shocking sexual abuse of defenseless children to relations which one could only find objectionable because they are considered offensive" (Voorstel van Wet, p. 26). The article containing the objectionable term "induce to" was reworded in the government proposal. Now the means were listed by which the "inducement" must be accomplished: "gifts, promise of payment or material benefit, abuse of power or through deception." The Minister stated in his explanatory memo that it is not desirable to forbid people under the age of consent to have sexual contactsjust in order to uphold community standards. It would be better to clarify the concept "inducing to" because it then becomes evident what the key factor for penalization really is: not respecting the personal integrity of the young person. There was thus no denial that young people do have sexual contacts. The legislator could now take a neutral position with respect to sex which minors engage in. Another important departure from the Advisory Commission's Final Report was the amendment to Article 245 in which 12 years was given as the age of consent. Sexual activity would now be punished if it included "sexual intercourse or other similar acts of physical penetration" (Voorstel van Wet, page 3). Thus penetration would become the criterium. In other words, as far as sexual contacts involving persons under 12 were concerned, less sexual activity would be forbidden under this article than under the Advisory Commission's Final Report -- clear decriminalization, then. Finally, it should be noted that in this proposal sexual contact which the child himself had not initiated would suddenly be added to the category of "serious moral offenses", at least according to the explanatory memo. This first legislative proposal was sent on the 19th of September to the Emancipation Council13, which responded in December 1984. The Emancipation Council subscribed to the premise of sexual self-determination on which the proposal was grounded. The Council supported the idea that sexual contacts with young people should no longer be punished if it can not be determined that they were compelled in the manner stated. It thought that the right of young people to have their own sexual experiences should be recognized and, as far as possible, be assured. Unlike the Advisory Commission, the Emancipation Council thought that an initiative coming not from the child but from another person was an unacceptable reason for making the contact punishable. If the right of the child to have sexual experiences was recognized, legal intervention was only appropriate where the young person could not freely decide whether or not to engage in the sexual activities. "We reject the premise upon which the Advisory Commission on Moral Legislation based this proposal, that young people under 16 can do without this freedom." Here the Emancipation Council departed strongly from the traditional point of view of the feminist movement. The absolute prohibition of sexual intercourse as well as other penetrative sexual activities was supported by the Emancipation Council, as was the sex-neutral tone of the article. The Council also agreed with the government proposal that young people in dependent positions (as in relationships with parents, teachers, group leaders) were almost never able to make a really free choice about sexual contacts within such relationships; in such a situation it approved of continuing the punishment provisions. A final recommendation of the Council was that the articles concerned no longer be placed under the heading "Offenses Against Morality"; the heading should be changed to reflect the fact that these were crimes which violated sexual self-determination. Here, too, the Council differed sharply from the Advisory Commission. The Second Legislative Proposal ABOUT A YEAR LATER the government was ready with a new proposal. On November 5th, 1985 it was sent to the Raad van State for advice. In this second proposal the age of consent remained at 16 and the term "inducing to" was maintained. Now, however, all sexual activities involving children under 12, not just penetration, would be punished, and regardless of the way in which they came about -- a criminalizing alteration of the original proposal. No explanation was given of why this change was made. The proposal was released both in political circles and to the public. The Christian Democrats were the first to make clear that they were not in favor of lowering the age of consent as was stipulated in the proposal: because it was difficult to make a distinction between forced and voluntary contacts, this proposal would not provide adequate protection for children. At first the Liberal Party supported the proposal. Mrs. Rempt, Liberal Party member of the Lower House, called it "a very sensible proposal which is in agreement with social reality" (NRC, 4 November 1985). The Labor-Socialist Lower House member Kosto said in the same newspaper that he saw no reason for maintaining the penal provision: young people are becoming sexually mature at an earlier and earlier age so we cannot assume in advance that force was used. The Telegraaf asked for reader reactions. The letters it received were mostly negative: "The legal freeing of 12-yearold children from sexual restraint is going altogether too far"; "a distasteful affair"; "Let the child remain a child in these matters"; and "If a child himself wants to do such things, then he deserves to be protected from himself". Mrs. Rempt defended the proposal on television against child psychologist Wolters and psychiatrist De Levita. The latter maintained that the proposal would remove all legal protection of children and Wolters was afraid that if the age of consent was lowered from 16 to 12 it would soon descend even further. Moderator Koos Posterna supported both men by saying that they were not old-fashioned worry-warts. (This same Koos Posterna seven years ago when a different climate prevailed presented a much sounder program on the subject of pedophilia.) The cabinet must take into consideration these very critical public reactions, said former Liberal Party leader Nijpels, but the party itself had already changed its position. In light of the then-looming elections, it was important to take account of voter reactions. The Labor party, too, was amazed at the uproar the legislative proposal elicited. Without coming out directly against the proposal, it let it be known it thought there were many important principles which were in conflict with one another and would be difficult to resolve. The reserve of the Labor-Socialist party on the basis of party politics is understandable, but it leaves a rather bad taste in one's mouth that in the contemporaneous political discussions about euthanasia it said that the right to euthanasia should not be restricted to adults. Exactly what went on within the various political parties was colorfully described by Ben Heinrichs and Max van Weezel (1985). With the evaporation of legislative support Minister of Justice Korthals Altes could only withdraw his proposal. This was no death sentence, however; he said the cabinet would reconsider it when it came back from the Raad van State. The vehement public reaction was attributed by some, including the Minister of Justice himself, to its clumsy presentation (Soetenhorst-de Savornin Lohman & Jansz 1986). The press releases made it appear that decriminalization was being carried farther than it was in fact; it gave the impression that all children would be granted unlimited sexual freedom. Soetenhorst-de Savornin Lohman and Jansz concluded from the whole sequence of events that a sensible proposal carefully prepared by experts to change a law which no longer conformed with reality came into collision with highly emotional reactions: "It was mainly political emotions which have determined what is going to appear in the law. " At the present time it is unclear what will happen in the future with respect to moral legislation. The Raad van State will tender its advice, and it is impossible to predict what this advice will be. In fact it may already have been given, since recommendations from the Raad van State are always secret. It is also impossible to predict how such advice will be received. In its memo concerning homosexuality (Overheidsbeleid 1986), the government announced that it would reconsider its proposal in light of the Raad van State's advice. The matter would best be considered soon: in the absence of looming elections, there is a better chance that decisions will be made more on the basis of reason than on party politics expediency. The argument that the articles of moral legislation are a product of Victorian morality which prevailed when they were drawn up is insufficient reason for their abandonment. It would leave unaddressed the problem, which must never be underestimated, of real sexual abuse of children, for it is the job of the government to prevent such abuse as much as is possible. Whether the Penal Code can help solve this problem depends largely upon how people perceive the possibilities it offers. Some think the criminal laws are inhuman and should be abandoned-the so-called "abolitionists" (As, for example, Hulsman 1983). Others would like to see stiffer punishments for, among other crimes, rape; it is unclear whether they think this will really solve the problem or whether they are more interested in retribution. The ability of the criminal law to prevent crime is often overestimated. Above all one might ask whether sexual abuse isn't more adequately combatted by other means; the harmful side-effects of criminal prosecution must be kept in mind, and it is not insignificant that even from the police itself there have been pleas for more restraint in the application of the law. Sometimes the cure seems worse than the complaint, said Mrs. Visser (1984), Chief of Police of The Hague. She considered use of the criminal law the last resort. It would also be possible that the known will be chosen over the unknown and absolute prohibition will be maintained; Beyaert (1984) made his plea along that line: the police, the Public Ministry14 and the judge all have a great deal of leeway in applying the law. But Minister of Justice Korthals Altes has not chosen for this easy solution and all the judicial uncertainty and inequality it entails. The legislator can decide that children, in comparison to adults, have the right, reinforced by the criminal law, to extra protection from real abuse; good arguments for this exist. It would be a matter of choosing some formula whereby, just as with adults, it would not be the sex itself that would be criminalized. Children who engage in such activities out of their own free choice deserve to be protected rather than threatened. Summary and Conclusions THE PROBLEM OF criminalizing sexual contacts with children is complex. Taking into consideration the limitations of this research, the data presented here can play only a restricted role in the discussions about moral legislation. That doesn't mean, however, that their significance should be ignored. While the discussions will most probably revolve around the question of the appropriate age of consent for different kinds of sexual acts, one might well ask whether the multi-faceted experiences of the boys described in this book do not also have a place in them. The boys and their older partners met in a variety of ways whereby the first contact was often more or less accidental. Subsequent meetings took place at the initiative of both. Sometimes sex occurred at the first meeting; in other instances sex was gradually introduced into the relationship. With inexperienced boys the older partner often took the sexual initiative. As the contacts became more frequent, however, the initiative often shifted from the one to both. The most frequent sexual acts were mutual masturbation and fellatio. The boys overwhelmingly experienced their sexual contact with the older partner as pleasant; such negative feelings as occurred had mainly to do with their social surroundings which they knew disapproved of such contacts. Bad behavior on the part of the older partner, such as misuse of his power advantage, almost never occurred, according to~ the boys: there seemed to be not so much a question of power abuse but of how the older partner used his power. The friendships and the sex which occurred within them had no negative influence upon the boys'general sense of well-being. The pedophile friendships were not based upon sex alone. The boys felt they received affection, love, attention, companionship, a sense of freedom and support from their older partners; they shared many activities. The importance of the older partner and the friendship varied from boy to boy; sometimes the man was just one of the boy's friends; in other instances the man occupied a central place in the boy's life. Most of the boys'parents knew their son had a relationship with an adult; some of them even knew that their son and the man were having sex with each other. Most of the boys whose parents did not know about the sex suspected their parents would not approve. Where the parents did know the boys thought they had accepted it; in these cases the boys were often very happy that they could be open with their parents about it. The boys expected that their friends would disapprove of their sexual relationships, even though they knew some of their friends were having sex themselves with adults. The boys themselves, however, thought their friendships and the sex was nice. A number of them emphasized that outsiders shouldn't make problems about it and that they themselves ought to have the right to decide what they wanted to do and what they would do. Except on the basis of violation of moral standards, there was nothing in what these boys said that would justify punishment. If a separate moral offenses section of the Penal Code is allowed to stand in which ages of consent are specified, then the articles should be so drawn up that the kind of sexual contacts which these 25 boys experienced would fall outside of their application. At the same time the law should make it possible, wherever there is clear abuse of power and if there is no other available option, for justice to intervene. The present laws form more of a threat to boys who enjoy friendships and sexual relations such as are described in this book than a protection, and some of these boys were quite aware of this. Any new or revised legislation must provide protection for young people against sexual abuse. At the same time it must not obstruct their right to sexual self-determination. Footnotes: 9 The largest Dutch daily newspaper, written in a rather popular style. Its editorial outlook is quite conservative, and this is especially true with respect to sexual matters. 10 The Raad van State is the highest judiciary body in The Netherlands. Among other functions, it examines legislative proposals made by the governm ent before they are submitted in their final form to the legislature for discussion and voting. The advice is made to the government directly (usually confidentially) but is not binding. 11 The Labor (Socialist) Party is the largest party in the Dutch Legislature; D66 is the fourth largest. 12 "Reclassering" is a government organization set up to help people convicted in the courts with their reintegration into society upon release from prison or termination of probationary periods. 13 A governmental council set up to advise the government on matters concerning women. It has also been successfully appealed to by, among others, the homosexual liberation movement. 14 The governmental body to which the public prosecutors (district attorneys) belong. It sets guidelines for sentences asked by the public prosecutors. |