Consent, Not Age, is the Issue

13 in Spain and South Korea, 15 in Sweden and Denmark, and 18 in North Dakota. What I’ve just listed is the age of consent in the named places, which represents the range seen among Westernized, first-world nations. Given the profound disparity that exists between the two ends of the spectrum, it is only appropriate that we have a sober discussion about the rationale behind having an age of consent, where (if at all) it should be set, and if there aren’t more relevant issues in determining what ought or ought not be legal in the realm of sexual intercourse. Doing so successfully means first abandoning the use of discrediting pejoratives such as “pedophile” or “sexual predator.” After all, supporting alterations to the law so that they are more reasonable is merely an act of good citizenship, not an endorsement of the behavior that may be rendered legal if such changes are realized.

Let us proceed by establishing the purpose of an age of consent. Two primary reasons exist. First, the goal is to prevent child exploitation by disallowing intercourse with those who lack the capacity to issue informed consent. And second, it is a means of controlling the abuse of authority that can sometimes exist when there is a profound gap in age between to potential partners. At face value, both seem to be entirely noble aims. However, upon further scrutiny, their use as justification for intrusive and non-nuanced law becomes quite obviously invalid.

I will address the latter issue first. Positions of authority are not merely a question of age. A boss has authority over his employees in a far greater capacity than a teacher might over a student. Yet there is no law forbidding their fornication. Instead, the issue of authority is dealt with at the institutional level, with many companies having strict rules regulating sexual and romantic conduct in the office or between those it employs. It seems reasonable that such mechanisms might just as easily work in schools, religious institutions, or other areas where adults potentially have authority over minors. That provides for this first aim, for arguing that the age gap is problematic in and of itself is irrational. This is evidenced by the fact that it is perfectly legal, as it ought to be, for a senior citizen to have sex with somebody old enough to be his grandchild. Such sexual relationships rarely develop however, based on disinterest of one (or both) of the parties, as would generally apply here too.

The bigger question thus becomes about the ability to consent. What benchmarks are to be used to determine if a person is capable of issuing consent? I believe that the knowledge base must be there, and the physical development must support it. In other words, I would argue that consent may be issued as soon as the minor (of adequate mental capacity) has entered puberty and received some sex education. Once they understand the mechanics, proper safety, and the potential consequences of their actions, why are they not believed to be responsible enough to have control over their behavior? Surely if children are taught of law and bound to it, they can be taught about sex and entrusted to control their own experiences thereafter.

Logic thus lends itself to abolishing the age of consent, and instead applying the above. In doing so, we become free to emphasize the real issue: a culture-specific disregard for the notion of informed consent. I speak of course of the situation in the Persian Gulf, which includes a number of oil-rich nations that fancy themselves as modern and Western-oriented, where marrying girls aged 10 and under is still rather common. To varying extent, this finds legal sanction in those nations because men like Sheikh Abdul Aziz Al-Sheikh, the Grand Mufti of Saudi Arabia, endorse such sex-inclusive unions. Lest one write this off as the rantings of a closeted pedophile who has been unnaturally elevated to such heights, I feel inclined to note that his position is supported within Islamic scripture. For as Sahih Bukhari, Volume 7, Book 62, Number 64 states, “Narrated ‘Aisha: that the Prophet married her when she was six years old and he consummated his marriage when she was nine years old, and then she remained with him for nine years (i.e., till his death).” This practice is then considered exemplary because Muhammed is the uswa hasana, al-Insān al-Kāmil, essentially “the perfect man and role model” (see Qur’an 33:21). Thus, his decision to have intercourse with a nine year old girl, who we have no indication entered puberty, is sanctioned practice, and allows for such consent-devoid arrangements to this day.

While the standards of conduct were quite different in seventh century Arabia than 21st century Western civilization, such practices continue worldwide, and ought to be the focus of our concerns. After all, these girls are not only uninformed, but underdeveloped and left without choice. Thus, they cannot give or deny consent. It is that, not the ability of a 17 year old in North Dakota to have intercourse without fear of legal consequence, which threatens basic human rights and the very reasonable underlying aims that our outdated age of consent laws seek to protect.

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