Is Age-of-Consent Ableist?

Depending on where you are in the world, the age where a person is deemed capable of beings able to consent to sexual activity could be anywhere from 11 or 21 years of age, and some people are even suggesting that this age be increased to 25 because the human brain typically reaches full maturity at this point. Criticisms of age of consent laws include arguments that this inhibits healthy sexual expression in minors and that any law that bases rights on level of brain development inherently discriminates against neurominorities whose brain development is different to those of neurotypical brains.

“Age of Consent” Doesn’t generally appear in legal terminology but as a term refers broadly to laws which determine at what age a person is deemed capable of consenting to marriage or sexual activity. The idea of placing a specific age on the ability to consent is a relatively new concept which developed in the late 19th century, but like many modern arbitrary constructs, is viewed as a universal moral absolute by the self appointed morals police of the world. The modern form of these laws developed in response to moral outrage about child prostitution and typically shifted age of consent to marriage at 11 to 13 into consent to sexual intercourse of 16 to 18. The general trend of these laws is that the age of consent goes up as the consistency of the law’s enforcement goes down; with either close-in-age-exemptions being codified in law or with authorities choosing to only enforce these laws when they result in moral outrage or when there is a clear power imbalance.

There has been a recent push for age of consent laws to be raised to 25 in cases where there is a large age difference because this is when the human brain is fully mature. This number is a bit of an oversimplification. The dorsolateral prefrontal cortex (responsible for personal thought control and executive function) is pretty much cooked by 25, but the medial and orbital surfaces of the frontal lobe that handle social and emotional tasks don’t get done until about 32. When looking at age related brain development, normal brain development is delayed by up to three years in areas to do with ability to control thinking, attention and planning in people with ADHD. If the reasoning for raising the age of full consent to 25 is based on neurological maturity, does this mean that people with ADHD should be deemed unable to have full sexual autonomy until they are 28? How about 35 for full emotional maturity? Childhood behavioural disorders like ODD, spectrum disorders and cerebral palsy can result from neurological development delays. Childhood trauma can also have significant impacts on the rate and range of neurological development. For some many people with these conditions their brain is simply not going to ever develop into a neurologically mature brain when measured by neurotypical measures. Why would sexual contact before the brain is fully developed be a bad thing? Well, there was a study that found that hamsters who have sex before their brain finished developing have higher rates of depression in adulthood, but this does not seem to be the foundation for the concern. While drinking has been shown to impact brain development, the same hasn’t been shown of sexual activity.

So far nobody seems to be seriously arguing that anybody should be unable to consent to sex before age 35. The real arguement is a little more subtle. It suggests that somebody in their mid thirties is so developmentally different from somebody in their late teens that any sexual relationship with such an age difference must be inherently exploitative. This attitude arbitrarily assigns a predatory image to situations where there is a significant age difference without consideration for the possibility that there are neurodiverse people who are simply going to find people in their own age range challenging for a variety of reasons, and this can go in both directions. So on the inaccurate assumption that all people develop at the same rate, they are judging the veracity of relationships between adults as invalid. Essentially the argument is “I don’t enjoy the company of people fifteen years younger/older than me, therefore anybody who does is a pervert or a victim”.

After breaking down the thinking of this idea, the proposed changes can be easily identified as an expression of the patriarchal idea that men are predators who seek only to exploit vulnerable young women who have no sexual agency of their own. Since reality tends to be more complex than the simplified narratives people tell themselves to justify their own intuitive revolution at relationships they do not find appealing, this position collapses under any level of scrutiny since even the people claiming to support it seem unwilling to openly accept the premises it is built on.

But what about the various ages of consent between 16-21 which exist in most Western cultures? Again, the argument seems to be that people under a certain age are incapable of understanding the implications of sexual activity and are therefore vulnerable to exploitation by older men. This view is illustrated by the presence of close-in-age-exemptions in most regions which have an age of sexual consent in this age range. So the argument isn’t that people in this age range can’t make responsible decisions about their own sexual activity but a fear that they will have their thinking influenced by people older than they are. So while the stated law may say people within a given age range are off limits for people above that range, the intention of the law is that young people who are perceived as vulnerable to exploitation by older people should be protected. While this approach may be functional for the majority, it doesn’t provide protection for older neurodiverse people who may be vulnerable to exploitation without applying ableist language like “mental age” and it also reinforces cultural prejudice against large age difference relationships which are not exploitative due to differences in rates of brain development.

The other feature of higher age of consent laws is their selective application. As an example, many Western countries have until very recently had explicitly homophobic statements in their age of consent laws. Canada only amended an explicitly anti-homosexual statement in their age of consent legislation in 2019 to instead have the age of consent for anal sex set to 18 whereas the age of consent for vaginal sex remains at 16 years of age. It doesn’t require any great leap of logic to see that homosexual men are going to be unfairly targeted by this disparity, while sexual contact in lesbian relationships remains largely ignored by laws which focus on acts which involve a penis. This is gradually changing, but even as the laws themselves change, the application remains unequal. While the racial gap in prosecution is closing, there is also an undeniable difference in the rate of conviction for BIPOC men compared to PWOC men in cases of statutory rape and also severity of sentencing. This disparity is also experienced by people with psychiatric illness. The available evidence suggests that rather than racial and neurological minorities committing more crimes or anything as simple as police targeting black communities (which does also happen), a major cause of these disparities comes down to the primary problem of these sometimes-enforced laws: charges are only made when there is social outrage, and the social outrage is greater when the perpetrator is a minority.

To put it plainly, these higher constant age laws which are selectively enforced aren’t designed in a way that protects young and sexually mature people from any particular crime, but rather provide the illusion of protection from an imagined threat by punishing people who fit the culturally accepted image of a sexual predator. This is disproportionately black men, gay men, and neurodiverse men.

“Replacing punishment of criminal acts with the imagining of a figure who is dangerous to society, and is criminal simply by their sexual preferences regardless of any criminal act.“

Michel Foucault

So what is the solution?

Firstly, the level of moral outrage needs to be removed entirely from both the letter and the application of law. The law should be clear about its intentions on this point as being about protecting children and young adults from sexual abuse and exploitation that causes harm, not reactive punishments for causing moral outrage in the community. To put it another way: consent laws should protect vulnerable people from harm while also allowing for sexual autonomy of young people to make their own choices about what happens with their body. They should not protect parents or the community from being offended by the choices young people make about their own bodies.

What would laws which achieve these goals look like?

Firstly, we need to scrap any idea that children are not capable of understanding consent and that there is no age where forcing a child to engage in intimacy against their will is okay. This means that no, little Regi doesn’t have to kiss grandma if they don’t want to. Forced intimacy like this teaches children that their bodies are not their own and that adults can demand intimacy from them. So the disturbingly common tradition of forcing displays of intimacy from children toward their relatives through coercion or bribery needs to be clearly defined as abusive. The needs to be a clear distinction that as soon as a child is able to communicate their desires they have both the capability to give consent and to withdraw it. As soon as they are capable of this, their right to do so must be protected in the legislation. If a child is clearly distressed by having their checks pinched but has it done to them anyway for the selfish personal gratification of an older relative, this needs to be understood as child abuse, and something which will be acted on if reported. The consequence here should be mandatory education. Nothing as strong as taking the kids away because Grandma won’t take no for an answer but if there is going to be a line drawn, it should be about when a child can withdraw consent as much as when they can give it.

Most current legislations has a big focus on when a penis is allowed inside a person’s body. In fairness, the consequences of an unplanned pregnancy are more tangible and provable than other forms of non-consensual sexual activity so it is understandable how we got to this point. It needs to be acknowledged in consent law that forcing somebody to have a baby against their will constitutes an extreme violation of bodily autonomy at any age and therefore should carry harsher penalties than other non-consensual sexual contact. As such, the law should treat both a person to impregnated a teenage girl without her consent and the parent who locked her in her room to prevent her getting to the clinic to have it removed and both responsible for the grievous bodily and psychological harm that results from this form of abuse.

Expanding on what should be covered by the law would be encouraging somebody to engage in risking behaviour without being aware of the risks or taking appropriate precautions.

The next issue is power distance, and this already exists in how age of consent laws are enforced but isn’t always explicitly worded in the laws themselves. Somebody in a position of authority like a parent, teacher, employer or religious leader is going to be able to pressure somebody into doing things they don’t really want to do regardless of age. There do need to be protections from coercion for people who are dependant on a person for their wellbeing, but these protections should not then penalise a person for using sex to improve their life situation if that is something they want to do.

If these factors are able to be controlled for, then what remains is a question of when person is able to know what they want independently of what people around them want. That is determined more from life experience than from what stage in brain development a person is at. The ability to give informed consent doesn’t require a full understanding of what they other person’s motivation is, otherwise nobody would be able to consent to anything; so that’s not a meaningful line. Obviously there needs to be some kind of point where we can say that person does not want sex and they don’t have sexual desires, but conditions like Kallmann syndrome which can delay puberty would make the historical methods of determining this difficult to codify in a universally applicable way. Ultimately there is going to have to be a minimum age of consent, but this should be a low age with other factors considered with as equally prohibitive rather than the current approach which has a high age which is the primary consideration after a decision has been made to prosecute on an intuitive decision which is prone to bias.

Bringing these ideas together, we are left with the following recommendation:

Instead of pretending that a person goes from incapable of making decisions about their sexuality to full sexual autonomy on their 16th, 18th or 21th birthday, or saying straight people become sexually autonomous on their 16th birthday and gay men become sexually autonomous on their 18th birthday, the law should instead reflect reality. That reality is that sex does have risks, and if there is an uneven understanding of the risks of a shared activity and there is measurable harm then there should be legal provisions for both criminal and civil options for damages, and also that schools and parents who fail to adequately prepare young people who are becoming sexually curious about safer sex options are also at fault. In cases where social position would put excessive pressure to consent on a person, they are not able to provide meaningful consent. And finally, if a person’s body hasn’t yet developed to make them want sex then their interest in sex is not going to be sexual fulfilment and that these cases should be regarded with added scrutiny to see if one of the other factors is involved because it probably is.

Maybe that’s not as satisfying as having arbitrarily assigned age limits and pretending that sexual encounters which happen after that age cannot be problematic, but reality is more complex than that. A personal preference for plainly worded laws isn’t a valid reason to impede the sexual development of post-pubescent teenagers who are going to explore their sexuality whether the law wants them to or not.

Obviously, this is going to be a topic that people are going to have strong opinions about. I encourage anybody who disagrees with me assessment to put forward an alternative which protects children from being victimised without harming their sexual autonomy. I’d be keen to hear what other solutions people are able to come up with as this is just my own thoughts on the issue after a relatively brief assessment of the issues. I look forward to hearing alternative perspectives on this.

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