[Articles & Essays] 

A Defence of Sexual Liberty for All Age Groups 

EDWARD BRONGERSMA 

Doctor of Law (The Netherlands), former Chairman of the Permanent Committee for Justice of the Dutch Senate (the Upper House) 

The Howard Journal, Vol. 27 No. 1, Feb. 1988

Abstract

This paper discusses the concept of an age of consent for sexual relationships, suggesting that some such contacts between adults and children art not harmful and should therefore not be punished. 

Sexual contact between adults and children has been an emotive subject in Western society for a considerable time, and it can be argued that this has often resulted in injustice to the older and younger partners in such relationships. This situation, in which irrationality and prejudice are important influences, is likely to be made worse by the arrival or the scourge or AIDS now adding a physical dimension to the moral panic already so well established. 

In discussing sexual liberty it is important to remember that all norms of sexual activity have been admired in certain places at certain times. There is not a single act from marital intercourse to mother-son incest, from masturbation to bestiality, that has not been considered praiseworthy in some cultures, or beneficial to health, just as it has been thought objectionable, sinful or unhealthy in other cultural environments (Challot 1972 [*1]; Szasz 1982 [*2]; Churchill 1967 [*3]). 

[*1] A. Storr (1964) in Sexual Deviation writes 'It is safe to assert that there is no sexual practice which has not somewhere been condemned, and none which has not elsewhere been accepted' (p. 11). 
Baurmann (1983) Sexualität, Gewalt und Psychische Folgen states: 'Participating observation is particularly often used in cross-cultural research. From such research we obtain much information telling us that no so-called sexual perversion exists which has not been accepted or even established in other cultures without causing cultural damage in the society concerned' (p. 88). (The author's translation from the German).

[*2] The same is said by Szasz (1982) Sex op Recept: 'What for one period, or one individual, is a sexual problem is for another period, or for another individual, a sexual medicine' (p. 131). (The author's translation from the Dutch).

[*3] Churchill (1968) Homosexual Behavior Among Males writes: 'With the single exception or mother-son incest, virtually every possible type or sexual behaviour has been condoned in one particular culture at the same time as it has been condemned in another' (p. 16). But Churchill was wrong to exclude mother-son incest.

In ancient times no distinction was made between legality and morality. Both emanated from the same authority: the king-priest-judge. How revolutionary the introduction of the distinction was is well exemplified by the attitude towards homosexuality. What previously had been an atrocious crime meriting atrocious punishment, no less than being burned to death, became suddenly, on a certain day in 1791, in France, entirely legal -- and this with the unanimous approval or all the courts or Paris and other cities.  

The distinction between immorality and unlawfulness is particularly important in the field of sexuality where subjective feelings or disgust and righteousness so easily distort judgment. Wise people may know and take into account that other men and other women will have different sexual predilections and may be sexually excited by individuals or circumstances, which hold no attraction for others. But even the wisest man is not able to feel his way into them, to see -- for a moment -- the world as they see it.

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Rejection and disgust is simple, understanding difficult, entering into another's feelings impossible. Modern society is multi-cultural. It unites people or widely varying religious beliefs and of unbelievers who adhere to very different codes or ethics and philosophies. Some people may accept for themselves a spiritual authority, but for the modern state itself there is no such authority. The philosophers or the French Revolution, as well as the foremost English thinkers of that period, rightly deduced that the state should not try to impose upon its citizens a particular religion or system of morals. 

Penal law is not there to impose or defend moral conceptions. It is there to protect individuals and society against harm unlawfully wrought upon them. Not all harm we suffer is illegal. Competition in business may even ruin us without infringing upon any section or the law. But all of us, including children, possess certain elementary rights that should be protected and that may only be suspended under exceptional and well defined circumstances. 

One or these is sexual liberty, meaning that it is the individual's absolute right to dispose of his or her own body for sexual purposes and to decide freely if, with whom, when, where, how and how long he or she wants to have sex. With the 'how long' there is an indication that sexual activity willingly entered upon, should not be continued if one or the persons concerned wishes to stop. 

Some people freely accept certain restrictions on their sexual liberty, perhaps rules imposed by their church or by their conceptions of decency. It is up to them to decide. For the rest, the state is there to defend this liberty and its use unless harm is inflicted on others. As Dworkjn (1977) has pointed out: 

Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt or restriction. It is a relative concept. It always makes sense to ask, 'Discretion under what standard ...?' (p. 31) 

Assessing Harm Done -A Peculiar Difficulty 

In assessing the possibility of harm done one races the peculiar difficulty that in sexual affairs a given activity may cause damage to some while being in other cases neutral or positively beneficial. At the present time, for example, much attention is directed towards the misery of incest, particularly father-daughter incest. There is no doubt that real abuse of young girls can occur here and where that is so it should be fought with all the means at our disposal. But this should not blind us to the fact that not all incest is abuse. 

Janus (1981) quotes Leroy G. Shultz when speaking at the first National Conference on the Sexual Abuse of Children (1979) as stating that in some cases incest 'may be either a positive, healthy experience or, at the worst, neutral and dull' (p. 126). 

It remains debatable whether a behaviour must be made unlawful because it is traumatizing in many cases whilst not being so in some. Clearly, to impose

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punishment for activity that has been a positive, healthy experience is contrary to sound principles of penal justice. The law should be and could be worded to distinguish between abusive and the occasionally non-abusive cases.

All sexual contact between adults and children is today a contentious issue in the West. It is argued that self-determination for children is not possible and that even if it were deemed possible it should not be permitted because sexual activity is injurious to a child who thus must be protected against it.

Yet the question of a child's ability to give sexual consent is a relatively recent one. In the Middle Ages and the Renaissance the sexual interests and activities of children were considered self-evident matters which hardly needed special consideration. Children were not seen as a separate category. The genitals of children were openly fondled by parents, nurses and friends as children evidently liked this. Medieval folklore is full of allusions that boys and girls should have sex as soon as they matured. Boys and girls married when they were eleven years old and had 'carnal knowledge' of each other.

No-one took offence at Dante's love for nine year old Beatrice. The City Fathers in Ulm, in Germany, had to make regulations to stem the flow of 12 to 14 year old boys to the brothels. The famous humanist Erasmus wrote a treatise on sexual pleasure and dedicated it to the six year old son of a friend. In my native town of Haarlem the painter and scholar Carel van Mander (who died in 1606) taught his twelve year old boy pupils to have sex in order to avoid headaches. And in England, at about the same time, 13 year old Elisabeth Ramsbotham complained officially that her eleven year old husband, John Bridge, had not yet deflowered her.

It was no different under the Ancien Régime. In a university thesis Van Ussel (1967) stated that:

In the moral and pedagogical literature of the first half of the 18th Century we find no restrictions against pre-pubertal sexual expressions; in the second half of that century it appears that a repressive trend set in, such as until then, had never been witntssed (p. 164).

This repressive trend eventually resulted in a wholly new concept which appears quite bewildering in the light of later research: a vision of the child as an a-sexual being and, on that account, 'innocent'. The a-sexual child could not, himself, desire contact. If he did have such contact it was entirely because of the indecent man who imposed on the innocent child, and for this crime, fatal to a favourable upbringing, he deserved punishment.

Research has Demolished the View of the Child as Asexual

Scientific theory since Freud, and social research since Kinsey, have demolished this view. The hypothesis of the 'innocent' child was based upon a priori reasoning: the aim of sexuality is reproduction; reproduction takes place within marriage; a child is too young for marriage; the child is

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thus too young for sexuality; he has no need of it, therefore, by nature, he does not have it. 

Again it was obvious as soon as the matter was investigated in a scientific manner, that these a priori opinions were untenable. It is now known that children have sexual feelings from birth and that at a very young age they spontaneously begin sexual play. Thus they know very well whether they want a particular kind or sexual contact with a specific person and whether they want it here and now. In other words, the concept that below a certain age a child can have no will or desire of his own in these matters or, if he did that it would be judicially irrelevant is not based upon fact. [*4] 

[*4] For a broad review or the technical literature on this point readers are directed to the report on the sexual development of the child published in 1972 by the Netherlands Institute for Sociological-Sexual Research (Wintkel 1972).

But even when it is recognised that a child is well able to determine with whom and how he wishes (or does not wish) to have sexual contact, the question remains whether such a contact below a certain age will be in one manner or another damaging to him. 

The question is relatively new. In earlier times sexual freedom was specifically denied to girls because it would have been an infringement upon the disposal rights or the father, who had to be able to give his daughter as a virgin in marriage. The concept or legally enforced prohibition as a child protection measure in the Netherlands is only one century old. 

Public Opinion Sees all AduIt-ChiId Sex as Abuse 

To many magistrates and to current public opinion all cases in which a man (it is seldom a woman) has done something sexual with an under-age child arc similar and depicted as 'abuse'. This assimilation or what in reality arc very dissimilar facts is unjust towards the adult and, at the same time, dangerous for the child we want to protect. It is of great importance to make the right distinctions. 

Distinctions between two very different types of adult offenders is essential if rational action is to follow. Broadly, these groups are, on the one hand, adults who form happy and often affectionate relationships with children and arc welcomed to a sexual involvement; and, on the other hand, there are adults who manipulate events undesirably by applying physical or emotional pressure.

Then, distinction between the reactions of the children concerned in these relationships is fundamentally important to guide prosecution and sentencing politics, and to influence after-care of victims where that is required. 

The Nature of a Sexual Act is Unimportant 

A matter that is often not understood is that it is unimportant to distinguish between consensual sexual practices. Finkelhor (1979) reported that: 'The seriousness of sexual activity as it is usually understood docs not seem related to greater trauma in children' (p. 103). A boy may feel deeply hurt if quite mildly interfered with by a person he dislikes yet be happy about allowing advanced forms of intercourse with a person for whom he feels affection. It is not the way of using the sexual organs that 

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decides whether or to what extent damage is inflicted, but the inner attitude of the child concerned. 

It is important to remember, too, that if a sexually active child is being brought up in a sexually repressive household -- a condition that can and frequently does cause development problems of many kinds -- to be able to enjoy sex free of guilt and with an admired adult can be a profound relief. Constantine (1981), summarizing the outcome of 30 major investigations performed between 1934 and 1981 of the effects of adult-child sexual experiences, concluded that the presence or absence of harm done to the child first of all depends on the sexual knowledge and comprehension of the child and on his or her feeling of free consent given on the basis of that comprehension. Secondary harm can be inflicted afterwards by emotional reactions of parents and questioning by police. In penal legislation, however, we should deal with primary damage, and this depends completely on the way the child sees the facts. 

The Comprehensive Baurmann Study -
 Almost Unknown in Britain

Now attention must be drawn to the important Baurmann study. Michael C Baurmann is an official of the Department of Justice of the German Federal Republic and of the Department's Office for Criminal Affairs ('Bundeskriminalamt') who published in 1983 a volume of 791 pages
(Baurmann 1983) Sexualität, Gewalt und Psychische Folgen {Sexuality, Violence and Psychological After-Efftcts). 

Baurmann analysed all the records of criminal affairs relating to sex with minors in the Land Niedersachsen; (State of Lower Saxony) during the period 1969 to 1972, covering no less than 8,058 cases. The book contains a ten page summary in English. A summary in German was published at the same time as a brochure for police instruction. Here is a quotation from the English summary: 

In the present study about half of the victims of indecent assault (48.2%) showed no injury at all [*5], about 18% a lower index and about 34% a higher or very high index of injury. The injured victims were all female. (pp. 527-8) 

[*5] Injury was defined for this study as follows:
Injury as a result or sexual contact is a reactive, sexual, social, psychological or physical disturbance to which the injured person is subjected. This disturbance can either be subjectively recognised by the injured person himself or herself, or it can be diagnosed by specific scientific methods. The disturbance can be caused directly by the event itself, or indirectly.
The measurement or injury was formulated in an index of injury ranging from 0 (no injury) to 100 (maximum injury). Half of this index was designed to be determined by symptoms reported subjectively by the victim when questioned on whether he/she had noticed at any time afterwards any physical, social, psychological or sexual problems caused by the sexual offence. Twenty-five percent or the index comprised answers to a check-list or possible injuries drawn from available literature, and the remaining 25% were based on psychological testing. 

None of the boys showed evidence of injury -- a profound conclusion that must surely give all legislators pause for thought. Children brought up with relatively strict regulations at home about going out in the evening were more liable to injury than the more liberally educated. Also, injury, was associated with violent or threatening behaviour by the assailant and defensive reaction or attitude of the victim. 
The report continues: 

Many experts in the field of prevention have assumed that sexual victims without primary injury were rare. It certainly appears that this opinion must be re-evaluated. Adults who hold the opinion that any sexual behaviour is traumatic for children and young people have to face the fact that in many cases the young victim becomes a victim only because grown-ups expect him or her to become a victim. On the basis of this expectation they act in such a way that the child really is victimised. (p, 529) 

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The summary goes on to say: 

This kind of secondary victimization can easily occur after exhibitionist and other non-violent sexual contacts if the child comes from a family with particularly strict sexual attitudes, or a family in which fear is created about 'moral assaults', or a family which, out of helplessness and fear, dramatizes the victimization. As a further source of secondary victimization, members of prosecuting authorities, like policemen and policewomen can, unfortunately, not be excluded. (p. 529) 

Turning to cases or relatively superficial, non-violent erotic and sexual practices the summary states that: 

Objective and unbiased information about the phenomena or indecent assaults and their after-effects would reduce dramatization ... The results of the present survey should be widely publicized so as to influence public opinion. Relevant laws in the penal code should be subjected to unbiased evaluation. (p. 531) 

Finally, the cautionary remark is made that: 

While discussing the laws dealing with sexual offences, objective and scientific argument should be clearly separated from emotional and/or moral opinions (p. 533). 

Into such depth, then, goes this official publication of the German Department of Justice. Despite Baurmann's expressed wish that the report should be widely published it appears to be virtually unknown in Britain. 

The summary, intended for distribution among the police forces, strongly advises them not to waste their precious time and energy on affairs or consensual sex with children, and to concentrate instead on cases of violence and abuse of authority. In cases where the child has consented, Baurmann sees it as the primary task or the police to assist the parents in overcoming their emotions and adopting a more balanced view of what happened to their son or daughter. This is in the interest of the child which should have a higher priority than the taking of criminal procedures of the satisfaction of public opinion. 

Other Findings Corroborate Baurmann 

Findings by other disinterested researchers corroborate Baurmann's argument. Studies published by Rasmusscn (1934), Landis (1956) and Lempp (1968) are examples. Tindall (1978) reviewed 'a pool or approximately 200 cases where boys had been involved with older males sexually' (p. 382). He concluded that there is no evidence in these cases that such involvement ... had lasting effects such as developing homosexuality. All these studies point in the same direction and all are virtually ignored in the U.S. and Britain. In those two countries influential voices unite in saying that inevitably adult-child sexual contact is a cause or primary damage. The influential voices are wrong. 

Another Gcrman report by Störzer (1978) deals extensively with the lasting damage children may suffer as a result of being used as a witness. Dworkin (1977) touches on this aspect when he writes:

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If a man believes he has the right to break the law, he must then ask whether he does the right thing to exercise that right ... On the other hand, if some official, like the prosecutor, believes that the citizen does not have the right to break the law, then he must ask whether he does the right thing to enforce it. (p. 196, italics in original)

In Holland, according to official statistics, the public prosecutors refrain from prosecution in more than 70% of adult-child sex cases brought to their notice. Most cases of consensual sex are never tried in court out of concern for the children. Moreover, the Prosecutor General at the Amsterdam Court of Appeal has repeatedly declared that offenders who have not used violence or abused their authority should never be sent to prison -- a fine would suffice. To risk the emotional health of a child in order to impose a fine seems misguided.

To put an end to such unconstructive prosecutions the Dutch Minister of Justice announced in 1985 his intention to introduce a Bill which would reduce the age of consent from the present 16 (for heterosexual and homosexual activity) to twelve, with the exception of cases in which the minor was persuaded by the giving of extravagant gifts, or by misleading statements or by the abuse of mental or physical superiority. 

A law reform on these lines would closely follow advice already given by the National Order of the Bar, the Christian Union for Child Protection and the National Centre for Public and Mental Health, and a petition presented to the government in 1979. The bodies mentioned and others [*6] agreed that the present law was more likely to damage children than to protect them.

[*6] The 1979 petition was additionally supported by the Association of Probation Officers, the Netherlands Women Movement, the Board or the Labour Party, the Youth Contact Group (uniting young Christian Democrats, Liberals and Socialists), the General Union or Schoolteachers (primary and secondary schools) and the Association of Protestant Christian Teachers. All these bodies, besides the ones mentioned in the main text, sought the abolition of the age of consent in revising the present law, deemed to be unsatisfactory. 

Unfortunately the publication of the Ministry's proposal was so badly formulated that it caused widespread misunderstanding and seemed to suggest that children from the age of twelve would lack all protection against unwanted sexual approaches. This led to protest in the media and, since the proposal had come at a politically sensitive movement (shortly before an election), the Minister announced that he was willing to reconsider the reform. 

A standstill followed. But at the end of 1986 the Dutch Homophile Association, C.O.C, proposed in a new petition to the government and parliament this compromise: Let the age of consent remain at 16, but add a clause that sex with a minor of twelve and older will be lawful if the younger partner evidently freely consented and where there is no question of abuse of authority [*7]

[*7] The 1986 petition was signed by, among others, a number or university professors of penal law, of psychiatry, of sociology and of pedagogics and by the General Association of School Teachers. The petition followed the lines suggested a few years earlier by the chiefs of police in the three most important Dutch cities. 

Sexual Behaviour of Adults with Children should be Categorised

In The International Journal of Law and Psychiatry (Brongersma 1984) proposed again a solution which I first formulated in the seventies when I was called as an 'expert witness' by the Committee of Crime Problems of the Council of Europe. The proposal is that sexual behaviour of aduts towards children should be divided into three categories. 

Category one: 
The child is subjected to violence, threats, or abuse of authority, Against such aggression the child should be protected with the full force of the law.

Category two:
The child is put in a position which he or she dislikes, or 
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which gives rise to feelings of oddness or ridiculousness. Society's aim will be to try to prevent such a situation arising but, when it has arisen, parents or others concerned should take care of the child in much the same way as if he or she had, for example, been shocked by seeing a road accident. In such a case it is not in the interest of the child to make a tragedy of the happening and so to fix it in his mind by resorting to criminal procedure. 

Category Three: 
The child likes the adult and the sexual relationship. Penal law, with its blunt weapons, is here entirely inappropriate. Civil law should enable parents to end the relationship effectively if they are sure that the adult involved is having a morally or psychologically bad influence on their son or daughter. The, judge in deciding such matters should pay close attention to the opinion of the child.

Walmsley and White (1979) in their Home Office Research Study No. 54 say that they decided to classify sexual behaviour as 'consensual' if despite the age of consent (as laid down by law) both parties were willing. But also with the qualification that the person consenting was over the age of criminal responsibility -- ten. These authors also write:

Consent to a course or action does not imply a mature understanding of the consequences of that course or action but merely a willingness that it should take place. In a democracy any law which proscribes consensual behaviour will need justification; if there are large numbers of such convictions for consensual behaviour, the law may need re-examination. (p. 5)

Opinion and treatment of sexual offenders against children has always been seriously confused by a failure to distinguish between quite different types of adult involved.

Paedophile Studies Fall into an Old Trap

When, a little over a century ago, research into homosexuality was begun, the authors sought their subjects for investigation in prisons and psychiatric hospitals. Everybody in such institutions who had committed sexual acts with persons of the same sex was assumed to be homosexual. Only gradually did it begin to dawn on scientists that there was a great difference between individuals with a real and unchangeable predilection for partners of their own sex and those who, by outward circumstances (absence of women in prisons, or in prison camps, or aboard ship, or at boarding schools), or by an inner defect (timidity, relationship difficulties and so on) were prevented from finding the kind of partner they truly preferred and so turned to a comrade or fellow inmate. We may safety say that homosexuality (same sex contacts) is no proof of homophilia (same sex preference). This is now rather common knowledge. 

The more surprising is it, then, that until recently all studies of paedophilia fell into exactly the same trap which had earlier distorted the study of homosexuality. Again, research was limited to subjects undergoing psychiatric treatment or punishment. Again the single fact of having had sex with a minor was sufficient to label a person as paedophile.

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Only lately has research been done 

(Bernard 1972; Rouweler-Wutz 1976; P.I.E. 1976; des Sables 1976/77; Sandfort 1979, 1982; Pieterse 1978, 1982) 

among 'normal' boy-orientated paedophiles not undergoing psychotherapy or imprisonment. Only about 20 years ago researchers began to see the pseudo-paedophile (individuals taking a child as a substitute for the intrinsically preferred adult partner towards whom they are too shy or too troubled to establish the desired contact) as quite different from the true paedophile (individuals attracted to children and not to adults). 

Such distinction is made, among others, by 

Baurmann (1983), Freund (1981), Gagnon and Simon (1970), Gebhard (1965), Geiser (1979), Haeberle, (1978), Howells (1980), Kerscher (1978), McCaghy (1967), O'Carroll (1980), Sandfort (1982), West (1980). 

The Howard League (1985) accepts the concept also in its recent publication Unlawful Sex (pp. 52-3).

What should be stressed here is the importance of this distinction for the treatment of offenders. The pseudo-paedophile is in need of therapy to help him approach the real object of his sexual desires -- a mature male or female partner. 

Quite different is the case of the true paedophile. I think it is not of great significance to establish whether his attraction to children was inborn or acquired; for if it were acquired it must have occurred in the prime of his childhood. Whatever the cause may be the condition seems unchangeable and resistant to any attempt at 'cure', just like homophilia. Skilful therapists will not waste time trying to redirect their clients' sexuality; rather they will seek to treat the consequence of society's attitude towards the paedophile man or women; the indoctrinated self-hate. They will strive to guide him or her into accepting their own nature and to be free from inner conflict.

Society will Redeem the Misery Inflicted

Acceptance of his own nature will enable the paedophile to consider with more inward peace how to live in a society that condemns and punishes the expression of his love. The day must come when society will redeem the misery so needlessly inflicted on adults who feel sexual love for children. Until then the fate of the paedophile will continue to be hard. But even in this unhappy situation the man who accepts himself for what he is will behave in a socially more constructive way than the one overwhelmed by guilt and self-rejection. Fighting no longer against himself he will be better able to fight with himself.

Membership of an organisation for paedophiles should, therefore, be seen by judges, probation officers and psychotherapists as a positive symptom, a coming to terms. It is the prisoner abjectly denouncing his paedophile behaviour who should be regarded with suspicion and concern. 

Dworkin (1977) quotes John Stuart Mill's famous essay 'On liberty'. It asserts: 

One very simple principle is entitled to govern absolutely the dealings or society with the individual in the way of compulsion and control. ... That principle is 

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that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty or action or any of their number, is self protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (p. 260)

The test is harm, and the sooner that is recognised the more just our society will be. [*8, *9]

[*8] Dr Edward Brongersma is one of Holland's most distinguished jurists. In 1946 he became a member of the Dutch Senate. Four years later he was arrested for having sexual contact with a 16 year old boy, under a law he helped to repeal in 1971. Having rebuilt his law career he returned to the Senate in 1963, becoming Chair of the Judiciary Committee from 1968 to 1977. He was knighted into the Order of the Dutch Lion in 1975. He has published books and articles on penal law, criminal procedure and sexology, including Sex and the Law (1970) and The Damned Sex (1972). 

[*9] Editing assistance by E. A. Barrie.

[Articles & Essays]