Understanding pedophilia: Is the criminalization of pedophilia a human rights’ abuse?

Blagov, Laura
Type of WorkEssay

1.     Introduction

In a French broadcast later titled as Sexual Morality and the Law (1978), Michel Foucault, Guy Hocquenghem and Jean Danet criticized the contemporary legal system for illegitimating certain aspects of human sexuality. Although the emphasis was on the unequal treatment of homosexuals, the issue of pedophilia was also discussed; in 1977, a public petition was signed against laws of age of consent and statutory rape, which was signed by not only the abovementioned trio, but also by other influential French thinkers, such as Jean-Paul Sartre, Louis Althusser and even psychoanalyst Françoise Dolto (Kritzman, 1988).

The aim of the petition, and later on the broadcast, was to shed light on the dangers of state regulation of one’s sexual preferences, and to show how matters had gotten to the point that there was widespread public persecution of anything that defied the heteronormative standards of society (ibid). Hence, even a controversy, such as pedophilia, deserved to be understood and tolerated since it was perceived by the intellectuals at hand as just another form of sexuality.

     Pedophilia, as defined by the Statistical Manual of Mental Disorders of the American Psychiatric Association, can be either a disorder or an orientation, depending on its manifestation (Laing, 2013). It is “. . . the fantasy or actual act of engaging in sexual activity with [usually] prepubertal children. . .” and can entail anything from exposing oneself to children to the full act of sexual intercourse (Encyclopedia of Mental Disorders). 

Although pedophilia is not restricted to a specific sex/gender, most studies are about men (ibid). Generally, pedophilia is not viewed as a natural sexual orientation but a mental disorder, which, if acted upon, is punishable by law in most countries in the world.

Pedophilia is conceptually a very complex issue, which is why it has inspired many to analyze it, and even deem it a normal part of humanity; if we accept that the heteronormative standpoint is too exclusive, we also need to accept the diverging variations of sexuality, which may then include pedophilia and other non-traditional orientations. However, the global legalization of pedophilia could have some horrific consequences, such as increased child prostitution, which means that a conceptual analysis alone is not sufficient, but that the dangers must also be taken into account.

     This paper discusses the concept of sexuality through the work of Michel Foucault to show why labeling every pedophile as a rapist or abuser without justification is not only detrimental for the individual psyche, but for society as whole.

Foucault’s ideas are opposed with two more practical views:

  • Eradicating Pedophilia: Towards the Humanization of Society (2001) by Ron O’Grady and 
  • Paedophilia, Sexual Desire and Perversity (1997) by Ben Spiecker and Jan Steutel.

This paper analyses whether the criminalization of pedophilia can be considered a human rights’ abuse or whether society should prioritize preserving the rights of children above all, even if that has repercussions for certain sexual minorities. The focus is on analyzing the conceptual stigma of pedophilia and its practical dangers; the possible biological causes or psychological explanations behind it are not elaborated on.

2.     Foucault in defense of diverging sexuality

Western society does not cope well with pedophilia. Ranging from “naming and shaming” to public demands for the full castration of anyone who manifests such behavior, consensual or not, the fundamental existence of a pedophile is heavily stigmatized (Ashenden, 2002, p. 198).  The pressure to repress one’s controversial sexual preferences becomes next to obligatory, and the only way out is to conform to the standards of societal normality.

This concept of normalization is what Foucault concentrates on when he criticizes the illusions of liberal society: toleration and moral relativism only extends to whatever has been deemed acceptable by the governing bodies and institutions of states (Kritzman, 1988). Hence, not only is normality an elitist affair, but also incredibly arbitrary, which means that the public labeling of sexual minorities can be used as political tactics (ibid).

The following sections discuss two of Foucault’s main arguments which can be considered in favor of pedophile rights. First is the problem of representation of sexual minorities, how it affects the basic microphysical power structures, and how we should try and avoid passing judgment. Second is the notion of child sexuality and pleasure, and why consent must be taken seriously in order to ensure a more unbiased society.

     First, in Part One: The Will to Knowledge of The History of Sexuality (1978), Foucault describes how ever since the 19th century, human kind has made sexual relations a taboo by restricting public discussion and constraining them to heterosexual marital affairs – officially, sex was only a tool of procreation (p. 3-4). Matters of sex continued to be repressed throughout time because of leading forces, such as the puritan work ethic, which as a mentality did not help to establish any kind of sexual freedom (p. 6).

Foucault sees this repression as the core problem of all issues in regards to sexuality; when people are not allowed to establish or even discuss their desires, there ceases to be any knowledge of such matters, which then makes them blind to the power that is held over them by society. Hence, those power structures become nearly impossible to escape or revolt against, without the fear of severe punishment.

By conforming to the norms dictated by governments or ideologies, people stop asking questions and start accepting certain principles as truisms which leads to discrimination of anyone who is marginalized. The worst part of this prudish bourgeois-dictated system is its hypocrisy, since it is obvious that the repression of sex does not lead to its disappearance, but to it becoming increasingly more of an underground business, which in Foucault’s opinion leads to less understanding and equal treatment (p.7-8). Sex and power are hence interconnected, and as long as oppressive norms are ingrained in society, there will be reluctance to accept anything out of the ordinary. Society should, therefore, to an extent abstain from placing normative judgment on any matters of sex.

     In relation to pedophilia, Foucault’s account is rather clear. Instead of punishing and excluding a person who was born with his or her sexual preferences, there ought to be uncensored discourse on what pedophilia exactly is and how it manifests, because that is the only way society can grow to be as accepting, and not remain in a liberal paradox (p. 9-10).

The intolerance of any sexual minority has no positive outcomes, since oppressing views which go against the mainstream only mean the subjugation to a dictatorial and frivolous power system. Therefore, if a pedophile lives his or her life without causing pain to others and only engaging in consensual relations, there is no reason for society to shame this person as being immoral; labeling something as indecent or outrageous does not only stem from the personal bigotry of people but it is often completely unjustified or random.

     Second, in Sexual Morality and the Law (1978) Foucault provides analysis on the sexuality of children, which he is certain exists. He and the others who signed the petition for the abolishment of age of consent laws stress the point of consent and did not try to justify the actions of rapists or abusers – physical maltreatment should always be punishable (Kritzman, 1988). He, however, counters the two main assumptions that people against pedophilia usually hold:

  • “Now, where children are concerned, they are supposed to have a sexuality that can never be directed towards an adult, and that's that. Secondly, it is supposed that they are not capable of talking about themselves, of being sufficiently lucid about themselves.” (Kritzman, 1988)

He states that since a child does have sexual feelings, occasionally those feelings may substantiate in the form of lusting after an adult, and that the child may be the one initiating physicality (ibid).

According to Foucault, what would help to understand the situation of both the child and the adult, is to treat the child as a conscious being instead of an object which has not idea of what may be happening to him or her. Children and youngsters ought to have a say in their own sexual matters, and not have them dictated by a law which does not take specific cases into account but deems all acts indecent if they happen under a certain age. If a child was being abused, he or she would most likely state it if the adults would have enough patience to listen (ibid).

Therefore, Foucault et al. believe that the age of consent laws are redundant and discriminatory against children, as well as incriminating towards the adults who might have not been causing any harm to the child (ibid).  Rapists and other violators ought to be treated as their own cases, but classifying all pedophiles, especially those who abstain from expressing their sexuality or who only act on consent only reinforces prejudice towards that sexual minority. The state ought not to be able to dictate what is considered by ‘normal’ sexuality by imposing laws that do not even to help prevent violent acts, but that only restrain even the most amicable relationships, simply because some people have a monopoly on deciding what is indecent (Foucault, 1978).

     In short, Foucault bases his arguments on illustrating the hypocrisy and danger of sexual oppression, since the microphysics of society always has an element of randomness; people create laws based on personal biases and hence persecute whole groups of people who already have a difficult time expressing an important part of their human nature. If society would be more open to understand and gain knowledge of pedophilia, homosexuality or any other form of sexual orientation, it may be easier for those people to feel included instead of being shamed for something they did not choose themselves.

This thought is supported by the fact that as to this day behavioural scientists and psychologists have been unable to successfully “cure” any sexual ‘deviances’ (Chenier, 2011). Hence, if we are to evolve as a society, people must have a critical perspective to anything that is institutionally deemed normal or abnormal, and pedophiles ought to be provided with the same rights as others.

3.     The critique: drawing the line

In order to challenge Foucault’s perspective, it is necessary to look into a whole other extremity. In Eradicating Pedophilia: Towards the Humanization of Society (2001) Ron O’Grady not only does not differentiate between pedophiles and sex offenders, but claims that all pedophiles share certain attributes which make them a danger to society, e.g. being obsessive and predatory (p. 129).

Whilst not distinguishing between consent-based relationships and forced ones, O’Grady analyzes some practical aspects to pedophilia, which society would be naïve to overlook, and to which Foucault’s reasoning does not apply.

In Paedophilia, Sexual Desire and Perversity (1997) Ben Spiecker and Jan Steutel scrutinize child sexuality and provide arguments against pedophilia based on non-reciprocity.

The following sections discuss three of the points O’Grady, and Spiecker and Steutel make in their essays, respectively, and evaluate them in relation to the possibility of legalizing pedophilia.

     First, in status quo, child prostitution and trafficking already exist, even though both are illegal (O’Grady, 2001, p. 125). Much like slaves, children are being shipped and sold to brothels, because there is a demand for them. Despite the many laws and regulations that are in place, most trafficking goes unnoticed and remains underground, violating the rights of children worldwide (ibid., p. 132). Even though slavery and sex work would still occur even without pedophilia, it is important to see the connection between the negligence of basic rights of children in order for someone to make a business out of it.

If pedophilia was made legal, many of the official brothels, even in many European countries, would most likely incorporate child sex workers into their midst, for the sake of profit and competition. Now, although prostitution in itself is already a highly controversial topic, in some cases it can be considered the choice of the adult – the same cannot be said for a child anywhere under fifteen or even eighteen.

If anything, the legalization of pedophilia would create a greater demand for child prostitutes, and force those in desperate need of income to work in places which deprive them of their humanity – not to mention drive modern slave traders into making more profit of the abuse of children.

In spite of the fact that Foucault and his partners in thought make a distinction between exploitation and consent, it would be absurd to expect even the most moderate of the world’s pedophiles to never use such services provided by brothels, if they were made legal. This narrows down the significance of consent; a prostitute, especially a vulnerable child, would not have the opportunity to refuse, and the small percentage of children who hypothetically do consent might feel obliged to if there is no law to protect them. 

     Second, the notion of child sexuality must also be scrutinized; even if there is consent, sexual acts may mean something entirely different for a child than for an adult, and if the two parties are not on the same level, the relation cannot be considered equal. Especially when discussing younger children, it should be kept in mind that they are not physically or hormonally on the same level as adults:

  • “. . . prepubescent children are not yet capable of experiencing sexual desire. . . children can long for sex with an adult because of, for example, feelings of security, attention and acceptation.” (Spiecker & Steutel, 1997, p. 333)

Hence, if a pedophile claims that the child was the one initiating physical contact of sexual nature, it may only be a miscommunication on the child’s side and a suitable justification for the adult, a sort of “projection” of desire (ibid, p. 334).

This also creates a problem for Foucault’s discourse, which states that if the relationship between a child and an adult is mutually gratifying and not abusive, there need not be external interference; if the adult is driven by his sexual needs and the child is complying simply because of a need for affection, the relationship cannot be fully reciprocal.

Stemming from sexual urges, pedophilia is hence not a search for a deeper connection or a meaningful liaison, and that can already be seen as an indicator of self-gratification on the account of another person. So, even if a pedophile does not consciously aim at hurting anyone, engaging in acts with children who cannot experience the same things is at the least egoistic.

     Last, the mental capacities of a child must also be taken into consideration when discussing consent. It is not only hormonally that prepubescent children are not on the same level with adults, but their understanding, especially of sexual matters, is not as developed (ibid, p. 336).

This means that even if there would be consent, it may not be an informed one, but the adult may have manipulated or persuaded the child to comply (ibid). This is related to the previous point about projection, and it is also what makes children so vulnerable to mistreatment; adults know what constitutes sex or relationships, have preferences and are aware of the possibility that someone might be taking advantage of them. Children may think they are consenting because they are left with no other option, and this can have traumatizing effects on their long-term development, such as forming trust and relationships in general (ibid, p. 338). 

     Hence, it is easy to conclude that the possible legalization of pedophilia would bring about a myriad of problems, including an increase in child sex trade. From the above points it becomes clear that pedophilic relations are not based on equal understanding or respect, but that they usually aim for the gratification of the adult on the expense of the well-being of the child. Since it is so difficult to distinguish between genuine consent and a forced one, if there are no laws to protect children, abuse will surely become tolerated.

4.     Conclusion

  • "Pedophiles who don't act on their desire deserve a bloody medal."

These are the words uttered by Joe, a sex addict, in the movie Nymphomaniac, when she encounters a man who has hidden his sexuality from the public (Von Trier, 2013). She compares her own sexual deviance to the man’s, stating that they were both sexual outlaws and that they would never be fully accepted in society. In Foucauldian terms, this is exactly why there ought to be more understanding and less judgment, so that there would be no need for marginalized sexual manifestations.

     This essay explored the arguments in favor and against the legalization of pedophilia, in order to shed light on its difficult nature.

On the one hand, pedophilia can be considered a sexual orientation, which means that it cannot be chosen – repressing it will not stop it from existing, so it would be better to have it discussed in the open. The various ‘treatments’ offered for pedophilia, from meditation to medical castration only serve to stigmatize pedophiles and do not increase overall societal well-being. Also, the Foucauldian discourse trusts the judgment of children on whether they are having a consensual relationship or whether someone is hurting them – disregarding the child’s opinion is ignoring part of the solution.

On the other hand, the practical consequences cannot be ignored. If the legalization would lead to more abuse of innocents just for someone to be able to satisfy their sexual needs, society ought to prioritize the prevention of human rights’ abuses. If the laws that currently protect children against mistreatment are nulled, it is difficult to assess the long-term damage that would result from non-reciprocal relationships.

Hence, although the Foucauldian theoretical standpoint is not wrong, it is too narrow and does not entail the possible dangers, which means that further research into the causes and reasons for pedophilia must be conducted; further knowledge can only help the individual to cope with the issue instead of fully repressing it.

     Due to the limitations of this paper, it did not elaborate on the current scientific paradigm of what might constitute pedophilia, but concentrated on its societal status. Also, the predictions made are based on contemporary research and cannot be accounted for with certainty, since practicing pedophilia is still illegal in most countries. However, they were presented to illustrate that pedophilia does not only exist as a philosophical problem, but has severe practical repercussion as well. 


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