Sexual consent and human rights


Graupner, Helmut; Oct 01 2010
ISSN1931-9045 (Print) 1872-4329 (Online)
Type of WorkAcademic journal
Publication LanguageEng
Refereed DesignationUnknown

The central idea of human rights is uniqueness and autonomy of the individual. Or, as the German Constitutional Court (BVerfGE 7, 198; 48, 127 [163]; 49, 286 [298]) put it in the words of the German philosopher Immanuel Kant: a human being must never be used as a means to an end, but always has to be the end in itself! An old Jewish saying is: if you are destroying a single person you are destroying a whole world and if you are saving a single person you are saving a whole world. That is exactly what human rights are about: human dignity, consisting in uniqueness, autonomy and self-determination of the individual.

It follows that human sexual rights, being fundamental rights in the area of sexuality, should be manifestations of a basic principle of sexual autonomy and sexual self-determination, and should work for the preservation of human dignity.

Correctly understood, this basic right to sexual autonomy and self-determination encompasses two sides:

  • it enshrines both the right to engage in wanted sexuality on the one hand, and
  • the right to be free and protected from unwanted sexuality, from sexual abuse and sexual violence on the other.

Both sides of the "coin" must be given due weight and neither one neglected if human sexual dignity is ever to be fully respected. Anybody who favors one side over the other- the right to wanted sexuality on the one hand or to freedom from unwanted sexuality on the other- or who respects neither, should be considered in violation of human rights.

It is the task of lawmakers and legal practitioners to find a reasonable balance between these two sides of the coin "sexual autonomy". This task is both necessary and difficult. It is as noble as it is overwhelmingly important, especially with respect to young people to whom we shall pass on our ideals and values of respect for dignity and individual autonomy.

I am not the only one who holds this view. It has also been proposed by the European Court of Human Rights (ECtHR) (, and it is exactly the conception of sexual rights which appears in the case-law of the ECtHR. It requires legislatures to employ criminal law as the strongest weapon a state has, whenever necessary for the effective deterrence of violence and abuse (X. & Y. vs. NL 1985; Stubbings & Others vs. UK 1996).

Furthermore, it requires state agencies to protect against violations of sexual integrity (Z. & Others vs. UK 2001; E. & Others vs. UK 2002; M.G. vs. UK 2002). At the same time, the Court makes it clear that the individual has a fundamental right to autonomy and sexual self-determination

(L. & V. vs. Austria 2003; S.L. vs. Austria 2003; Dudgeon vs. UK 1981; Norris vs. Ireland 1988; Modinos vs. Cyprus 1993; Laskey, Brown & Jaggard vs. UK 1997; Lustig-Prean & Beckett vs. UK 1999; Smith & Grady vs. UK 1999; A.D.T. vs. UK 2000; Frette vs. France 2002).

This right is not restricted to adults. The Court awarded an adolescent compensation for having been prevented, between the ages of 14 and 18, from entering into relations corresponding to his disposition for homosexual contact with older, adult men. (S. L. vs. Austria 2003, par. 52).

In striving for the best balance between the two sides of sexual autonomy, European states set the minimum age limit ("age of consent") for sexual relations between 12 and 16 years of age (the only exception being Northern Ireland with an age limit of 17, which the British Medical Association repeatedly has asked to reduce to 16), most of them establishing an age of 14 or 15 (Graupner, 2004). In nearly 1/2 of the European jurisdictions consensual sexual relations of/with 14 year old adolescents are legal, and in almost 2/3 of/with 15 year olds (Graupner, 2004).

Countries with a higher age limit of 16 tend to have a more flexible system with ample opportunities for screening out love-relationships and other non-harmful consensual contacts, while jurisdictions with a lower age limit of 12 or 14 tend to have a more stringent law enforcement policy with limited powers of discretion for law enforcement agencies and with little attention to the will of the "victim" (Graupner, 2004).

The European Convention on Human Rights allows for interferences with private life, including sexual life, only if it is necessary in a democratic society (Art. S). Given the European consensus in this area, it seems that states enjoy a certain amount of discretion in setting the minimum age limits for sexual relations, a margin generally between the ages of 12 and 16.

No age limit or one under 12 years of age would appear as a human-rights violation for lack of effective protection against abuse and unwanted sex. A general minimum age-limit for sexual relations as high as 16 seems to be compatible with human rights only if it allows for screening out of love-relationships and other non-harmful consensual contacts.

In that respect, we should keep in mind what the German Federal Constitutional Court stresses, namely that the right to self-determined sexual decisions of young people corresponds to the extent that their self-determination supersedes their need for education (BVerfGE 47, 46 (74) = NJW 1978, 807).

A similar principle has also been expressed by the UN Convention on the Rights of the Child, which stipulates: "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." (Art. 12)

A general minimum age-limit for sexual relations higher than 16 seems excessive, and with due regard to European consensus, as not necessary in a democratic society. To be clear: what I have said above refers only to general minimum age limits for sexual conduct. It does not refer to contacts in relationships of authority (e.g. teacher-student or priest-parishioner), and it does not refer to pornography and prostitution.

One essential requirement of justice is that the laws be sound and consistent (ECtHR: X. & Y. vs. NL 1985; B. & L. vs. UK 2005). If we apply this to the notion of a minimum age limit for sexual contact ("age of consent"), no matter what that age might be, we find that it should be the same as (but not higher than) the age of criminal responsibility.

For example, if one punishes an adolescent boy for raping a woman, one cannot on the other hand reasonably claim that he is too immature to consent to wanted sex with the same woman. Or, if one considers an adolescent boy incapable of making mature and informed sexual decisions, and one considers a woman to abuse him if she engages in consensual sex with him, one cannot hold that same adolescent boy mature enough to be held liable for raping the woman if she does not consent to sex with him.

If, for instance, the age for criminal responsibility is set at 14 and at the same time the minimum age limit for sexual contacts ("age of consent") at 15 (or even higher), it follows that two 14-year-olds having consensual sex with each other would both be considered sex offenders and, at the same time, both would be victims of the other: in other words, both would be perpetrators and victims vis a vis each other at the same time.

Surely, this cannot be considered a fair balance. It is unreasonable, absurd, and unjust. It is a serious violation of human rights, and a rejection of the principles of individual autonomy and self-determination. It seems reasonable, then, that the vast majority of European jurisdictions set the age of consent for sexual relations no higher than the age of criminal responsibility, and most set the same age for both (Graupner, 1997).

When we strive for a fair balance between both sides of sexual autonomy, we must always keep in mind the dignity, uniqueness, and autonomy of the individual, which has been repeatedly emphasized in the case-law of the European Court of Human Rights

(L. & V. vs. Austria 2003; S.L. vs. Austria 2003; Dudgeon vs. UK 1981; N orris vs. Ireland 1988; Modinos vs. Cyprus 1993; Lustig-Prean & Beckett vs. UK 1999; Smith & Grady vs. UK 1999; A.D.T. vs. UK 2000; Frette vs. France 2002; Christine Goodwin vs. UK 2002; I. vs. UK 2002).

Moral convictions alone are no reason for restricting the sex lives of others (see the case-law cited above). No matter how strongly others disapprove of one's behavior, this in itself is no legitimate ground for state intervention, no matter how great the majority which holds these moral convictions (John Stuart Mill: On Liberty). At the same time, we have an obligation to protect people from being degraded into objects of abuse and violence, just as we have an obligation to protect them from being degraded into objects of the moral convictions of others. If we succeed in achieving both of these objectives, we will make an important contribution to the pursuit of happiness in our sexual lives for all of us- children, adolescents, and adults alike.


Graupner, H. (1997). Sexualität, Jugendsehutz & Mensehenrechte - Über das Reckt von Kindern und Jugendlichen auf sexuelle Selbstbestimmung [Sexuality, youth protection & human rights- On the right of children and adolescents to sexual self-determination]. 2 Volumes. Frankfurt a.M.: Peter Lang.

Graupner, H. (2004). Sexual consent- The criminal law in Europe and outside of Europe. Journal of Psychology & Human Sexuality, 16(2/3), 111-164.

Graupner, H. (2005). Sexuality and human rights in Europe. Journal of Homosexuality, 48(3/4), 107-139.

Author affiliation:

Helmut Graupner (a)

Author affiliation:

a Attorney, Vienna, ( Co-president of the Austrian Society for Sex Research (ÖGS) ( Member of the World Association for Sexual Health (WAS) (

Correspondence concerning this article should be addressed to Helmut Graupner, Maxingstraße 22-24/4/9, 1130 Vienna, Austria. Email: