[Articles & Essays]
A Defence of Sexual Liberty for All Age Groups
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
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]).
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.
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:
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
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:
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
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]
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
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 -
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.
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.
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.
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
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]