Our current conceit on consent

It is pretty hard to avoid the news about Russell Brand at the moment. I have no intention of getting into any of that. I really have nothing to say about the specific allegations nor do I have any desire to get into the rights and wrongs of all the public disassociation from every quarter. This post isn’t really about any of that.

The reason I mention it is because of a side-issue that has arisen because of those allegations. Specifically, one of the women in the Channel 4 dispatches programme has said she was 16 when these things were allegedly happening to her. That has led to calls, first from the woman herself but since from other quarters, about the age of consent. Specifically, whether it should be left where it is, raised to 18 across the board or some staggered thing to prevent older men exploiting younger people.

The Guardian, of course, has already found itself in something of a conundrum. On the one hand, wanting to see the sort of abusive relationship of older man and teenage girl curtailed whilst, at the same time, wishing to maintain the ability of 16-year-olds to engage in sexual activity with one another. What is one to do when we want the right to say the one is terrible and someone couldn’t consent whilst, at the same time, wanting to suggest those same people can consent? The best suggestion they had was to extend the law governing teachers and those in positions of trust from engaging in sexual relationships with those under their care. Quite how that would have stopped the particular alleged case of abuse of power I don’t know. If Brand did indeed do these things, in what way would he have qualified as a person in a position of trust? I just don’t see how that law could be written to avoid situations at all like the ones alleged.

It is sad that this is the occasion for the discussion. Nevertheless, some of us have made a clear call for some time now. As I previously argued here:

I absolutely agree with the new law. It makes perfect sense to me that children should not get married. Not only are cases of forced marriage much higher amongst those who are 16 and 17, but the very essence and reality of marriage is not something for children. I quite agree with Sajid Javid that we don’t even let children get tattoos until they’re 18, what on earth are we doing permitting them to get married?

Which begs the question why we have raised the minimum age for marriage consent but not that of sexual consent? If we won’t let children get married until they’re 18, and we won’t even let them get tattoos until they’re 18, I’m unclear on the rationale for letting them have sex before they’re 18? We are, in fact, sending the implicit message that you can have sex at 16 but not in any way that might be within the confines of a stable marital relationship. Which, if marriage at 16 is abusive, makes this seem even harder to square.

We are in the incredible position that one isn’t allowed to leave school, cannot get a tattoo, is unable to buy alcohol and cannot register to vote, but is allowed – despite being deemed not to have the capacity for all these other things at such a tender age – to consent to sex. If it is abuse to marry a child at 16, it is hard not to conceive how having sex with such a one isn’t similarly abusive.

If child marriage is child abuse isn’t child sex even more obviously child abuse? If marriage at 16 or 17 is child abuse, isn’t sex at 16 or 17 similarly child abuse? If marriage consent (rightly) gets raised to 18, oughtn’t we to do the same for sex consent? After all, if only adults are properly capable of consenting to marriage, shouldn’t it be only adults consenting to sex?

The usual argument against this, of course, is that what about 16 and 17 year olds in relationships together. To which the simple reply is, we do not seem to apply that same logic to any of these same areas. We do not say, because we want to allow children to make mistakes, we better lower the age of consent for buying cigarettes and alcohol. We insist the opposite. Because we don’t want children getting these things – rather they are for adults only – we make sure that we do not allow them to get them and we prosecute those who would make them available.

The argument comes back that we don’t want to criminalise the children. Except, of course, we do criminalise children over 10 all the time because that is the age of criminal responsibility. Let’s not forget that another story has cropped up in the papers, concerning Jon Venables coming up for parole who was very much criminalised specifically at the age of 10. We criminalise children for much lesser crimes than his all the time. Nevertheless, two further points ought to be made.

First, refusing to lower the age of consent to allow for teenage “mistakes” does act as some level of deterrent. I don’t pretend or presume that it resolve the whole issue by itself. Of course it won’t. But it does deter some. Second, the law obviously recognises mitigating factors and can operate in such a way as it recognises two transgressors are not necessarily the same. There is such a thing as mitigation and judges have significant leeway on these things. Any court would recognise a significant difference between a 30-year-old man grooming a 16-year-old child and two 16-year-olds who have been boyfriend and girlfriend some while having sex. They may both transgress the law (should it change to 18) but the law can still recognise they are not of the same order and act accordingly. That doesn’t mean totally ignoring the matter, nor continuing to act as a deterrent, but nevertheless recognising these are acts of different order and magnitude.

Nevertheless, the matter comes back to the principle. Are we happy with children – for that is what they are – having sex? Are we happy with a situation where you cannot marry until you are an adult but you can still be groomed and have sexual intercourse with much older people as a 16-year-old? Can we credibly call marriage at 16 child abuse and yet not say the same about sex with a minor? If we are appalled at the alleged actions of Russell Brand, and wish to protect young people – children in reality – does it not make sense to raise the age of consent to one that – as for so many areas of responsible adult life – belong to and are reserved for adults themselves?

The case, it seems to me, is obvious enough. It is time to raise the age of consent to 18 and restrict it to adults. Any less, it seems to me, is to say we are okay with children being groomed for sex. I wish the occasion for the discussion were not what it is, but if it has any positive outcome whatsoever, I hope it is this change in the law.


  1. I don’t think it’s helpful to call sixteen-year-olds children. To some extent that absolves them of responsibility, and sixteen-year-olds should not be children. They should be young adults. I don’t know what all the laws are like where you live, but in the USA we allow sixteen-year-olds to have drivers licenses (which is operating deadly machines in public places). They are allowed to have jobs in many industries (as they should be). In earlier years it wasn’t at all uncommon for them to marry. Sixteen absolutely should not be an age with greater freedom than childhood but no greater responsibility.

    Unmarried people shouldn’t be having sex. The real matter is a moral one, not a legal one. If we are going to accept fornication as a normal part of life, then yes, sixteen-year-olds are going to be having sex. It’s actually rather odd to me that we have classifications of life that are crimes if (presumably less responsible) teenagers engage in them, but that adults can do with impunity. Teenagers are expected to have the self-control not to smoke or drink alcohol, and not to have sex with someone to whom they aren’t married (though they actually aren’t allowed to marry). And we call them children (which means we expect them not to have responsibility for their actions).

    How much better it is to expect adults to show self-control and restraint as well, and to consider sixteen-year-olds adults-in-training. Teenagers should not be having sex not because they are too young, but because they are not yet married.

    1. This seems like a facile treatment of the question.

      If there is any difference between the capacity, competence and understanding of children compared to adults, then we necessarily do make difference in law between them. For example, we don’t allow children to work but we expect adults to do so. We don’t expect children to be able to marry, but we do permit adults to do so. We don’t allow children to live on their own without supervision but we do adults. These are all reasonable things because we recognise children neither have the capacity nor capability of adults.

      As soon as you recognise a difference between adults and children, we rightly then have to consider what is lawfully reasonable to permit adults to do that we do not believe children should be permitted to do.

      In the UK, I have listed in the post a whole range of things we do no permit children to do that we do allow adults to do. Such as smoking, drinking, getting tattoos, etc. There are also things we demand of children that we don’t demand of adults. In the UK, all under 18s must be in education or training of some sort. We do not expect this of adults for the painfully obvious reason that children and adults are not the same. We do permit parents to discipline their children, we don’t allow them to discipline their adult neighbours. The examples are many and the reasons manifestly clear.

      You can, of course, outlaw things for everyone (adult and child alike). Most of us do so with things like murder. But there are clearly things we say children should not do that adults can. The US, along with most countries the world over, recognise some such things (you don’t allow 3 year old to get driving licenses, for example, nor do you permit toddlers to drink).

      The point is, as soon as you recognise any such things (whatever they are) you have to consider an age at which it is legally permissible for people. My post is concerned with the consistency of some of our decisions on this compared to other decisions we have taken as a society.

  2. I agree that the AoC should be raised to adulthood. But I think the big obstacle has gone unmentioned in your post: The first big victory of the current gay rights s movement was for older men to do things to 16-17 year old boys.

    1. I don’t think that is any bigger an obstacle than the fact that the age of consent was already at 16 for heterosexual relationships. The truth is, the Gay Rights lobby were pushing for 16 as the age of consent because they wanted parity with the heterosexual age of consent. It seems obvious to me then, given they pegged the argument to one of parity, that we simply agree with that and raise the age of consent across the board.

      I don’t think Gay Rights is a real issue here. Their case was about parity. I am more than happy to grant parity. I think adults should be free to make such choices, but I don’t think children should be. Parity all round should be straightforward.

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