Up Front: It's Complicated
114 Responses
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Keir Leslie, in reply to
consent IS possible
Yeah, I agree. That’s why I think “age of consent” is misleading, because the “age of consent” is generally meant as the age below which you can’t consent. But you clearly can consent if you’re under 16. Your consent just isn’t enough to beat s134, although it is enough to beat a rape charge. It’s an area of law which is much less consent-focussed than people understand it to be, and so I’d prefer not to use consent-language.
(Emma: I don’t actually know what “reasonable steps” are, and it may be he’d get off there. It’s still a quite problematic law: strict liability offences always are.)
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BenWilson, in reply to
Slightly tangentially, by my reading of this, the consensual sex I had at fifteen with my seventeen year old boyfriend was a crime.
You have a defense, but he doesn't, as I read it.
Even weirder, the idea that at the age of 15, if I had flirted with a 15 year old girl, then met her again, hopeful for sex (whether I got it or not!!!) I could actually be in violation of 131B.
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BenWilson, in reply to
I don’t actually know what “reasonable steps” are
Surely "asking" is a bare minimum.
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You’d think so, but also you’d imagine that it’s pretty rough to criminalise someone in such circumstances…
[Bingo: in Grace v R [2011] NZCA 950, the Crown admitted: "it is not invariably necessary to make a direct inquiry of the young person or to seek independent verification" (at 17). Admittedly not much, but.)
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Emma Hart, in reply to
You’d think so, but also you’d imagine that it’s pretty rough to criminalise someone in such circumstances…
And we're pretty much all in agreement at least about this? That the best thing about our law in this area is that it's not often enforced?
it is not invariably necessary to make a direct inquiry of the young person
I am boggled. I would have thought that was why "reasonable steps" was there as well as "reasonable belief". Not getting independent verification, sure, but not asking? What, short of asking, could constitute a "reasonable step"? Genuinely asking; I can't think of anything.
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Observation could be a reasonable step, I guess? The Select Committee said
It is expected that the wider the age gap and maturity difference between an accused person and the young person, in any particular case, the more onerous it will be for an older person to establish this defence. That is, what will be considered reasonable steps for an older person to take, and consequently their reasonable belief, will likely be more stringent than a person closer in age to the young person charged with the same offence.
So I suspect the courts would interpret leniently in non-predatory close age ranges, and harsher elsewhere.
[Edit: also, "things said by crown in court" isn't always the same as the law: that statement might be totally false.)
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BenWilson, in reply to
Observation could be a reasonable step, I guess?
That's about all there is, really. If they look mature, then I think most "reasonable" people would consider how it might have fared for them, in the same situation. They put it to the thought experiment of meeting an attractive person that they're dead keen on, who looks, say, 18ish. That person is doing everything in their power to maintain that illusion, since they are also keen. So they not only look 18, they act 18. Furthermore, they act "natural", like they're your peer. Is the first thing on your mind the fucking law? The whole thing feels so damned right, in every way that matters, that you've got to be a pretty strange person to go "OK, look, just to be sure about ... um ... well, I don't quite know how to put this ... how old are you?". By even asking the question, cards are thrown on the table about your motives, which could be highly offputting to the other person even if they are not underage. It's just a crude thing to get into. Trusting people is one of the bases of attraction.
I'm sure there's also, even in the impartial "reasonable" person's mind, the realization of just how little harm there really is in it, barring the law. The law is just so wrong about the issue (in this case, where the person has every semblance of both sufficiently mature body and mind), that it's pushed down. They see that it's technically a crime, but a very, very mild one, far out of proportion with the potential punishment.
In the case where the maturity is less evident, then I'd expect they'd feel less sympathy. So the law ends up discriminating against people who like a girl who is less voluptuous, or less worldly in her manner. Not sure what to make of that. It's unfair, but it's understandably unfair. In this case it's the courts we have to make excuses for.
Just had a flashback to dancing and flirting with a 20 year old girl (she said) in a nightclub as a teenager. She was really into it, we were getting on famously. But like a fool, I let it slip that I was 14 (too honest for your own good, you idiot, my friends said), and she freaked out and took off. I was routinely mistaken for 18-20 at that age, until I opened my mouth. The cool kids knew when to shut up. I'm pretty sure I wouldn't have been deeply traumatized that evening if something that I know to be extremely pleasant had ended up happening to me. Quite the opposite, I'm nearly certain it would have done me a power of good.
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"a power of good."
Has a nice ring to it. Most nicknames for Herpes sound downright depressing.
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Lucy Stewart, in reply to
But like a fool, I let it slip that I was 14 (too honest for your own good, you idiot, my friends said), and she freaked out and took off. I was routinely mistaken for 18-20 at that age, until I opened my mouth. The cool kids knew when to shut up. I’m pretty sure I wouldn’t have been deeply traumatized that evening if something that I know to be extremely pleasant had ended up happening to me.
Maybe not, but it sounds like *she* would have been traumatized if she'd found out you were 14 later on in proceedings. Whatever the reasoning for that, it probably wouldn't have been pretty in practice.
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Grant Taylor, in reply to
I’m pretty sure I wouldn’t have been deeply traumatized that evening
The question of "what harm is being done?" has been implicit throughout this discussion but not really surfaced until now with Ben and Lucy's latest comments.
There seems to me to be important distinctions here between the various possible harms to a (young) person: to their rights, feelings, body, reputation, self-concept (and perhaps other dimensions of their existence). That preventing harm in one dimension can induce harm in another just makes it all rather hard and tricky and then the arguments start, when people disagree or talk past one another. But taking risks, choosing your poison and arguing about what is most important is life as usual.
The real side-track to be avoided, I think, is confusion about to whom the harm is being done - the individual/s engaged in the sexual encounter or others (parents, family, community, etc). Sex may hurt one or both of the young people involved OR others not actually directly engaged in the sex OR all. Sometimes we might want to protect people from others, sometimes from themselves (trusting they will be grateful later even if they are annoyed at the time), and sometimes we want to protect ourselves from them. It is the last one that is hardest to be honest about when discussing the former - and I think this is what lies behind many cases where someone other than those engaged in the sex are making the play.
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Lucy Telfar Barnard, in reply to
She was really into it, we were getting on famously. But like a fool, I let it slip that I was 14 (too honest for your own good, you idiot, my friends said), and she freaked out and took off.
Or maybe she was 16, or 15, even though she said she was 20, but even for 15-year-olds it's seriously uncool to go with a 14-year old, even if they look older, so she might not have "freaked out" so much as not been interested in playing below her league.
As for the "you can't ask them how old they are, because that would be offputting and putting your cards on the table", well, that excuse might hold for before you kiss, but somewhere between kissing and genital contact (which is the point at which the law kicks in), I'd think your cards were already on the table, and asking how old they are would be an entirely reasonable thing to expect, even if it's just "you are over 16, right?".
And related to Grant's comment just now, I wonder if a reason for the 16-year limit might be to protect those under 16 from having to defend themselves and their reputations in court the way rape victims STILL do? If you're under 16 and you're raped, all you need is evidence that sex occurred. Once you're over 16, if there's evidence sex occurred, it's not enough to say "this person forced me to have sex", you have to prove there was coercion. In which case, we're trading young people's freedom of sexual expression with young people's right to freedom from undergoing an adult-style rape trial.
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Sj,
"Some people have a much easier time thinking of a theoretical eighteen year old boy as a manipulative abusive predator than they do a girl. That's problematic too..."
Sorry I haven't read the article in full. This from Emma I read. This Emma I agree with and find problematic. Gender-stereotyped thinking is rampant. It's defensive and simplistic, speaking out its own ass. Personally I consider myself to be (sorry if totally off thread) multi-gendered, even as I am a mere heterosexual.
Meanwhile, I used to write on PAS under 'Speaker'. Time flies and it's a few years back now (about three), so maybe nobody remembers, but let's say one or two of you do remember the blow-job writer (my first essay here was on 'My first job'), then please feel free to check out my new blog - One Woman's World (OWW)
http://onewomanswo.blogspot.co.nz/ and leave a comment. Better still, 'follow'. I will do the same in return. Sacha. -
Danielle, in reply to
What, short of asking, could constitute a “reasonable step”?
You could play that creepy Dragon song and look meaningfully at them, I suppose.
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Geoff Lealand, in reply to
Which features in the opening credits of the excellent Aussie series Puberty Blues (TV1, Sunday), where the usual seduction line is "Do you want a root?"
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BenWilson, in reply to
Maybe not, but it sounds like *she* would have been traumatized if she’d found out you were 14 later on in proceedings. Whatever the reasoning for that, it probably wouldn’t have been pretty in practice.
No one will ever know if that is true. The trauma you are referring to is entirely manufactured by the legal ramifications of "proceedings". Without that context, it was 2 humans meeting, liking each other, and maybe doing something fun. Without that context, the worst that could have happened is she would possibly find out that she didn't want to have a relationship with me, something that needs to be found out for every person one has "proceedings" with. I wasn't going to turn out to have some kind of weirdly damageable or damaging body just on account of my 2 years shy of the law. On the contrary, I looked like an 18 year old because my physical development was much more like an 18 year old's. Could my personality have been damaged in some way? I really doubt it. I know exactly what not getting laid for far too long is like and there's nothing good about it, IMHO. Hence saying I think it would have done me a power of good. Absent the law, the worst damage she might have got is friends telling her she's a cradle-snatcher, etc. The remedy, simple - don't continue. Or tell the friends to fuck off because she likes what she likes. If she likes it (and it's not against the law...this is a hypothetical case).
I'm mentioning my story because it's the flipside of the extremely common other side, like Emma's story, the person who does have sex despite being underage. You can talk all you like about the way in which they might not have been the person they could be from having that innocence taken away. I'm talking about it from the side of that being my actual experience, and I honestly don't think it's necessarily less damaging. Sex is good for people. It really is. It can also be bad for people, and all the public discourse is about that. It's similar to any number of public safety measures, backed up by the hammer of the law. They almost never take account of the damage of the lost opportunity, the lost chance to make mistakes.
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Lucy Stewart, in reply to
No, I don't know if it's inevitable things would have gone badly; all I'm saying is, per your own story, she cleared off when she found out your real age, which might have been because of the legal ramifications or might not. Personally, I would be out of there so fast if it turned out a guy I was chatting up was that much younger than me when I was in my early twenties, whether the gap affected legality or no, and whether he physically looked like an eighteen-year-old or no.
If you think it would have been good for you, you're the best judge of that. I'm not saying it would have been damaging, I'm saying it could have been *super awkward* for the lady involved . Absent the law, you don't know what her personal feelings were or would have been about sleeping with a 14-year-old. Like it or not, age matters socially, never more so than at the stages of life when you can't wait to be older. Framing the story as "oh, if only it wasn't for the legal age of consent, I could have got laid!" seems a little simplistic.
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Also, I was under the impression that when you would have been 14, there was no “age of consent” for boys for heterosexual sex. I remember it has having been relevant to some Children's Commission advocacy for a boy who was being charged liable parent contribution for having, aged 12, fathered a child to an 18-year old woman.
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Emma Hart, in reply to
Also, I was under the impression that when you would have been 14, there was no “age of consent” for boys for heterosexual sex.
This is true. However, almost nobody knew this, so it wouldn't have affected many people's decision-making.
People should always try to make sure their partners are over age. We should also ask our partners about their STI status, but we pretty much don't. A scary amount of our sexual decisions are based on assumptions. I don't think anyone should ever deliberately deceive a partner. I have this thing where I never want to have sex with someone who's in a closed relationship, but I have, because I wasn't told. I also didn't ask.
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BenWilson, in reply to
Absent the law, you don’t know what her personal feelings were or would have been about sleeping with a 14-year-old.
Absent the law, I don't know why I'd particularly care what her feelings were about it, unless she brought it up specifically. I may have deeply held feelings about Croatians, too, but that doesn't mean someone who is Croatian should have to tell me that they are one. I don't have to tell anyone what my income is, or dick size, or any number of other things they may be concerned about. It's not on me to think of things about me that should exclude me from being eligible. I wasn't going to a meat market nightclub so that I could explain to everyone why they shouldn't have sex with me. Nor was anyone else there. To suggest that that's the way it is is naive. To even say that it should be any different is highly debatable. It's true only from a legal positivistic point of view, and that's a view I have never subscribed to.
Like it or not, age matters socially, never more so than at the stages of life when you can’t wait to be older. Framing the story as “oh, if only it wasn’t for the legal age of consent, I could have got laid!” seems a little simplistic.
You totally misunderstand the point of my story. I could have said nothing at all, and maybe got laid. I only said something because of my understanding of the severity of the law regarding underage sex (like practically everyone I didn't know that it might have not even been technically against the law).
Like it or not, age matters socially, never more so than at the stages of life when you can’t wait to be older.
Perhaps so, but that's their problem, really. Like it or not, weight matters too, but you're under no compulsion to tell me your weight in a flirting social setting. Indeed, to highlight your good points and cover your bad ones is expected. Unless, of course, there's a law against some aspect of it.
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Lucy Stewart, in reply to
You totally misunderstand the point of my story. I could have said nothing at all, and maybe got laid. I only said something because of my understanding of the severity of the law regarding underage sex (like practically everyone I didn’t know that it might have not even been technically against the law).
Then you did the right thing, and didn't get the outcome you wanted. That sucks, but it happens.
.I may have deeply held feelings about Croatians, too, but that doesn’t mean someone who is Croatian should have to tell me that they are one.
Ethnicity and age are really, really not the same thing, primarily because everyone older than fourteen was fourteen once themselves.
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BenWilson, in reply to
Then you did the right thing, and didn’t get the outcome you wanted. That sucks, but it happens.
Did I do the right thing? Really? I’m asking this in a moral sense, rather than a legal sense. In hindsight, I am not sure at all. In avoiding a harm, I also avoided a good. I think the good would have been way more than the potential harm, to both parties – except for the law. But we’ll never know.
Ethnicity and age are really, really not the same thing, primarily because everyone older than fourteen was fourteen once themselves.
Struggling to see the relevance of that. Croatians are even more unobliged to reveal their ethnicity to other Croatians, who could have much higher probability of having a real problem with them. Ethnicity and age are both features about a person they can’t change. Age will eventually change, but the teachable moment might pass for a lot of people on a lot of things, waiting for it. Age will change, but it will never change back. Lost opportunity is not inconsequential.
I don’t have a plan, just to be clear. I’m only debating the strange ups and downs of the morality debate around children. I’m certainly not against there being age limits for many things, they’re a practical solution to an important problem. My point is really a lot more abstract, and sits on the back of steadily rising information about the danger and cost of too much protection.
I have to say that we’re a very, very strange animal when it comes to sex. We like it, and yet we strictly prohibit it right at the time when any other animal would be doing it most. And yet we’re the only species that has nearly total control over the ramifications of it, it is not the life-altering moment that it is for other animals. My cat has sex, nek-minnit it’s a mother of 6. For humans in the developed world, the average age of child bearing is somewhere around 30 years of age, and it’s only rising.
We could be a species that educates children about sex as our only control of it, letting them make some of the mistakes in controlled circumstances before releasing the controls gradually, just as we train them in all other things. We do actually have that power. It’s our choices that are increasing our level of paternalism, our control over the bedchambers of youth, it’s not some automatic and obviously good thing. Not to me, anyway.
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As an example, I am teaching my son right now, aged 7, to swim. Eventually, when I believe he can swim, I will be able to allow him freedom from control near deep water. The consequences of this are far, far, far more severe than any likely consequences of poorly managed sex. He could die, and that's not unimaginably unlikely, it happens to dozens of people in this country every year. I expect he will be fully in control of this by the time he is about 9 years old. He's likely, like me, to have some terrifyingly unpleasant experiences in water. But the upshot of those experiences for me is that I'd be extremely unlikely to die in water short of being knocked unconscious or trapped underwater. And a love of water, doing things in water, has been an enduring part of my life since I was about 7 years old. It has made me who I am. It was worth it, even though the consequences of it being done wrong are terrible.
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FletcherB, in reply to
Also, I was under the impression that when you would have been 14, there was no “age of consent” for boys for heterosexual sex.
This is true. However, almost nobody knew this, so it wouldn’t have affected many people’s decision-making.
Really? When I was at high school (mid 80’s) it was common knowledge… the “16 year old” age applied to girls but not boys. Social Studies teachers confirmed it when questioned… I may also have read it in “The Little Red School Book” supplied by same teachers?
A lot of good it did me… didnt lose my virginity until well past 20…
Or maybe this is just further proof of "the nerds who understand the rules dont get to test them?"
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"chris", in reply to
We could be a species that educates children about sex as our only control of it, letting them make some of the mistakes
Not to overcomplicate, but the thing about swimming is you don’t see too many women emerging from the waves having been impregnated by the ocean. With sex, there are health risks and a power of good but there’s also responsibility for bringing life into this world, and the consent laws seem largely designed to work within the framework of the minimum age of 16 for living with a partner, getting married, leaving school, starting full time work. It's arbitrary but it's about right for now. In a society where the average age of child bearing is somewhere around 30 years of age, I'd argue that 16 year olds are still children albeit with a modicum of responsibility.
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BenWilson, in reply to
Not to overcomplicate, but the thing about swimming is you don’t see too many women emerging from the waves having been impregnated by the ocean.
You also don't really hear of many people dying from sex. I think death is a far more serious consequence than impregnation (which is preventable and reversible), and our approach to improving child safety around such a deadly thing is not to ban them from it. Quite the opposite, we acknowledge that the very best time to learn to swim is when you're young, and no one ever learned it from a book.
In a society where the average age of child bearing is somewhere around 30 years of age, I’d argue that 16 year olds are still children albeit with a modicum of responsibility.
I would argue that our society has created a perverse outcome in this regard. I don't blame this entirely on the age of legal sex, but I don't think that the age of legal sex should be fixed around a perverse social outcome.
We have historically done this kind of thing quite a lot - making a rule to enforce something that is actually a "natural" state of affairs, and then justified the rule that way. It's faulty reasoning that creates bad outcomes most times it is done. Just because it has been historically natural for men to dominate society doesn't mean that we actually needed a rule to make it so. If it were natural, no rule would be needed, and the presence of the rule makes it impossible to judge the true naturalness of it.
Just because most pair bonding for the species is between opposite sexes doesn't mean that we needed rules about that. It's taken this country until this year to figure that one out.
My main reason for thinking that legal ages for sex still make some sense and are practical is around the danger of predation. Because it is not a supervised group activity, but a private business, the idea of allowing people to experiment in a controlled way is problematic. Possibly in a communal society it might work better, if sex were not something hidden away, where people can get away with things they shouldn't do, so long as the other party doesn't know or is too powerless to stop it. That doesn't describe our society, though, so we have to take a lot of care. Basically, we're not socially ready for a lower sex age.
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