The Sexual Experience of Young People
by Dr. A.X. van Naerssen
Staatscourant 246, Thursday, 19 December 1996
[With special thanks for the translator and for the authors permission for translating and publishing the article.]
[Text in square brackets represents additions to, or elaboration on, the author's own wording, made by the translator for the sake of clarity.]
[The Staatscourant is a Dutch daily whose most important function is publication of formal directives issued by the national ministries. It also publishes news and opinions relating to law- and policy-making.]
Although child pornography must be vigorously opposed, the government has not shown enough restraint where the sexual experience of young people is concerned. Criminalizing non-violent sexuality contributes to the growth of real criminality.
Marc Dutroux was arrested in Belgium in the beginning of August and accused of abduction, sexual abuse, and murder of a number of young girls. He turned out to have been convicted previously on multiple rape charges and had been released without any psychiatric or psychological treatment before completing his prison sentence. Public indignation, at first directed at Dutroux, a psychopath and violent pedophile, turned after a few weeks into rage over the incompetence and corruption of police, the judiciary, and politicians. On 20 October, many hundreds of thousands of people demonstrated in Brussels against the decision of the Court of Appeals to remove Judge Connerotte, who was leading the investigation, from the Dutroux case. Connerotte had claimed that the case involved not only a psychologically disturbed sexual delinquent, but possibly also a network of individuals involved in criminality, child prostitution, and child pornography.
Coincidentally (for it had been planned for years) the world conference against commercial exploitation of children was held in Stockholm from August 27-31. It had been organized by the Swedish government in cooperation with Unicef and several organizations which concern themselves with child prostitution, in particular in Thailand and in the Philippines. The Dutroux case and the conference received wide coverage in the media, and there were a number of formal questions raised in the [Dutch] Parliament. On 29 October, the Minister of Justice, Ms. Sorgdrager, presented a letter to the Parliament with an extensive report on this conference, in which she commented, "The impact of the conference has probably gained some force through the tragic events in Belgium which have come to light during the conference."
She went on to announce an evaluation of the new morals laws concerning sexual contacts with minors [for contacts with 12- to 16-year-olds, the police can no longer independently initiate an investigation] and child pornography (about borderline cases). These laws had been changed or had gone into effect in December 1991, September 1994, and February 1996. She also announced a proposal to eliminate the general ban on brothels. Finally, she stated that she wanted to deal with sex tourism and with trade in videotapes containing images of naked children; that sex education with respect to sexual violence should be broadened, as should the treatment (usually not voluntary) of sexual delinquents; and that the information systems with respect to child pornography and white slavery should be improved, as should international investigation of violence and abuse.
With regard to this energetic and comprehensive approach, in particular in the area of criminal justice, the question arises whether the government isn't at odds with the traditional principle that it should play a restrained role with respect to the sexuality of its citizens, and, considering the moment in which she formulates this policy, whether she is not letting herself be led too much by the massive media coverage of -- and the public reactions to -- the events in Belgium and the conference in Sweden. These questions are not easily answered. First an attempt will be made to outline the changes in morals legislation, and then a possible explanation for the announced policy will be given.
Not a morals referee
Since the mid-sixties, a concept has taken shape in the government that it must not be a morals referee where sexuality is concerned, and must leave people free as much as possible in the expression of their sexuality. In the course of 25 years, a number of articles were done away with or changed. Article 248bis, criminalizing homosexual acts with 16- to 21-year-olds, was eliminated. Sale of contraceptives is no longer a criminal act. The article on abortion got a broader interpretation, the divorce laws were liberalized, production and sale of almost all pornography became legal, and being nude in certain locations was permitted. In all these matters, one could speak of decriminalization; behavior that had been punishable became "ordinary." Attention was shifted more and more to sexual violence (rape and indecent assault), which was made punishable within a marriage or an equivalent relationship, and to sexual abuse within the family and in educational and social assistance situations. There was a reasonably large consensus for this, even though in practice there were often serious problems in arguing cases in court. This held as well for child pornography, in which it was conspicuous that the concepts of child and of pornography, following the lead of the policy carried out in the United States, were significantly expanded. Disseminators of images of sexually mature children were prosecuted, as were disseminators of so-called nude photos in which no sexual acts were depicted. The legislation remained ambivalent with respect to the sexuality of children. Sexual acts with a person between twelve and sixteen years old without violence or coercion, and not in a situation where abuse is made of authority or trust remained punishable, although the police could only initiate an investigation if a complaint was filed. That could be done by the young person him- or herself, by his or her parents or guardian, and by the child protection council.
The same ambivalence prevailed concerning doing away with the ban on brothels. This had been advised since the seventies by the professional organization of prostitutes themselves and by others.
But the world of politics remained divided, on the issue of the sexuality of children as well as with respect to prostitution, and resistance against liberalization came as by all changes in the law primarily from the ideological side.
In fact, the current cabinet was saddled with a legacy of previous governments in which the CDA [Christian Democratic Appeal party] had taken part. In the first years of this cabinet, primarily those problems having to do with drugs played a role in the justice department, and various studies showed that there were large differences of opinion within the police and the justice department. In the area of child abuse, there was a refinement of the law on child pornography. The old article was primarily directed toward commercial and professional production and distribution. In the new article, the maximum penalty was increased, investigation was made easier, and merely having child pornography in one's possession was criminalized.
The concept of networks began to play a role. From a scientific point of view, network analysis means that one focuses on peoples' social relationships. Where sexual relationships are concerned, this technique is mainly applied to the organization of homosexual and heterosexual relationships in connection with the spread of sexually transmittable diseases, in particular aids. It is related to epidemiological research, and is strongly dependent on the data available about the sexual behavior of people and about the manner in which the disease is transmitted. The mathematical models which were developed for this often remained untested because the data were insufficient. This meant that prevention policy was based on a broad strategy. Neither specific sexual acts nor the chance of transmission assumed the central role, but rather safe sex, that is, use of a condom by everyone who engages in sex. Insofar as can be determined, the numerous campaigns did have an effect in homosexual networks, and much less effect in heterosexual networks.
The problem in the case of child pornography is much more involved, because both the producers and disseminators of this form of pornography -- since it is forbidden -- keep a vanishingly low profile. However, they must pass their product on to someone, and so the consumers are brought into the picture. Quite unfortunately, it was claimed that these consumers were pedophiles, adult men with a sexual preference for children. This assumption, maintained primarily by the police and the prosecutors in a number of publications lacking in scientific backing, had previously been refuted in a large number of studies. Of the adult men who were convicted for contacts with girls under sixteen years old, the vast majority is heterosexual, and thus the interests of these men are often not limited to sex with underage girls. Furthermore, a large number of girls from 12 to 16 years old are sexually mature. Rather than pedophiles, what we have here are in fact heterosexual men with a preference for teenage girls. The course of action was swept along by this mistaken assumption, while at the same time the supply of child pornography in the commercial arena was tiny if not nil. The result? The networks which were discovered consisted primarily of small groups of men who provided each other with pornographic films referred to in the vernacular and the media as: pedophile networks. The minister also indicated in her letter of October 29 that practically nothing is known about the extent of production, national and international. It appears that the present cabinet has made a fool of itself by accepting the change in the law at the beginning of this year. Led by an exceedingly questionable investigation, a law was passed which to date has not yet led to the dismantling of a commercial network of any significance.
And now a look at prostitution. Doing away with the ban on brothels means that one gets much better control over the commercial sector which prostitution represents. The half-hearted policy of unofficial toleration has meant that working conditions are poor for many prostitutes, that a relatively large number of foreign women are working illegally as prostitutes, and that a number of minors 13 to 16 years old are working as prostitutes. Prostitution as a form of sexual violence has a much greater opportunity of taking hold in this situation, although the situation in a large number of other countries is much worse. The causes of degrading circumstances among prostitutes are in fact always based in social disorganization: (civil) war, poverty, and a sharp division of power between men on the one side, and women and children on the other. These facts, supported by the theory of social cohesion and disorganization, have been known for almost a century. The conference in Sweden has only brought the present-day facts into focus. By putting aside the ban on brothels, The Netherlands would make an important contribution to [dispelling] the still widely prevalent opinion that prostitution can never be a legal form of work. What The Netherlands cannot do is to implement this policy in countries in which prostitution takes place to a much greater extent in an atmosphere of poverty and exploitation.
As for children, Dutch children are, in the year 1996, the healthiest in the world, enjoy education until their sixteenth year, are not forced into child labor, and become sexually mature around the 12th or 13th year. Beginning at that age, they also start having sexual contacts, usually with agemates, but also with partners older than sixteen, and in most cases without coercion or violence. Nevertheless, this is criminal activity on a large scale. As a consequence, in practice few people are convicted under this article. Argumentation of the case is difficult if one party insists not to have wanted the contact, while the other claims that the contact was in fact voluntary. The simplest solution would be to do away with the article entirely. All forms of sexual contact in which there is any issue of coercion, violence, an authority relationship, etc. are covered by other articles. As for pornography and prostitution (and definitely if the ban on brothels is done away with, and if carried out in a proper manner), the principle holds that one may use one's body for commercial purposes from the time that one turns sixteen. It is work, with supervision of the working conditions. Only in this way can one do justice to the possibility of free sexual experience for young people. Protection against violence and abuse must find their expression in articles in which that violence and abuse are clearly described.
The course of action as announced is opportunistic. It is a hodgepodge of measures, and it is at odds with any vision of the relationship between sexuality and legislation. The minister begins her discourse with the following incorrect declaration: "The morals legislation in the Criminal Statutes provides, briefly stated, for judicial action against sexual violence and against sexual abuse of persons." This is how it ought to be, but this is not how it is, partly because the Parliament, the police, and the justice department under the former minister, who was not versed in criminal law, have allowed themselves to be led primarily by a lack of well-founded sociological and social-psychological knowledge of the social organization of sexuality. Their thought process was too person-oriented (THE pedophile and THE rapist), which has resulted in a preventive and curative course of action which is doomed to failure. In such a situation, which has been carried on by the present cabinet, a case like Dutroux, or a conference in which horrible situations elsewhere are discussed, can at any given moment set the tone for opportunistic reactions.
Dutroux is probably both a criminal and a severely mentally disturbed person. Child prostitution and child pornography are undesirable matters, although they may have less to do with the personal pathologies of people, as the media and the cabinet suggest, and more to do with the opportunities to abuse in societies which are politicized and disorganized. The situation in Belgium, England, Thailand, and the Philippines is different than in The Netherlands. Nevertheless, it is in fact the non-governmental agencies who busy themselves with combating child pornography and child prostitution elsewhere, and who, with maximum publicity in mind, put subordinate phenomena such as sex tourism in the spotlight, and by doing so draw attention away from cultural and economic differences, and from corrupt regimes which deliberately perpetuate child labor. And irrational use is made of scientific data, especially by using misinterpretation of these to systematically support a restrictive and dubious course of action.
For example, consider recidivism with respect to morals offenses. This varies, according to the minister, from 20% to 40%. Which implies that 80% to 60% do not commit repeat offenses. Nevertheless, "a fine-mesh network of treatment facilities" is to be put in place, treatments which "cannot take place strictly on a voluntary basis, considering that the intrinsic motivation is generally lacking in morals offenders." This can only be called a cosmetic operation, to pacify those who wish to marginalize sexual delinquents.
In the first place: how do you determine who will get the treatment, when the majority do not repeat their offense? In the second place: even TBS [a provision for involuntary institutionalization outside of the Dutch prison system] cannot be considered mandatory treatment, but rather mandatory institutionalization, and is thus in practice a continuation of the prison sentence. Thirdly, young sexual delinquents are forced to participate in a resocialization program, and that should not be called treatment but rather a mandatory service penalty.
Psychiatric and clinical-psychological treatment are traditionally based on the subjective suffering of a client and the voluntary motivation to be treated. This often goes against the grain of some helping professionals, who, strangely enough, are less fiercely motivated by recidivism in the case of white collar crime, but once it involves sex, are more than eager to meddle with people who are not psychiatrically deviant, but socially deviant.
For it has to be said: there are no indications that the majority of rapists, incest offenders, and pedophiles are mentally disturbed; it is a social problem. Treatment is directed toward the subjective suffering of people, and not toward social control.
In summary: at this moment, the Dutch government is showing anything but restraint with respect to the sexuality of its (often young) citizens. It impedes them in experiencing their sexuality freely, it ascribes mental disturbances and involuntary treatments to them, it searches for possibilities to criminalize their naked beauty and spontaneity, and it lets itself be selectively influenced by scientific findings about human sexuality. Let the course of action be based on the postulate that criminalization of nonviolent sexuality diminishes the cohesion of Dutch society, and in doing so contributes to the expansion of real criminality.
Drr. A.X. van Naerssen is principal lecturer on clinical-psychological aspects of sexuality at the University of Utrecht.
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