Predatory Consent

Consent

This is going to be a controversial post and I make no apologies for that. OK, I make a teensy apology for it. I’m sorry if you take offence at what I write. I’m not trying to offend you, I’m just trying to get to the underlying issues in the responses to a recent court case here in the UK and in doing so I might say something that you don’t agree with. You might even misunderstand me, but if you do I ask that you don’t deliberately misunderstand me. OK?

Right, to business. The outcry today after a thirteen year old girl was called “predatory” in a court case where a forty-one year old was found guilty of abusing her was widespread. The response by some was direct and to the point – how dare a barrister or a judge describe a victim in this way? The narrative was one of a misogynist culture demonizing the victim of such an assault, blaming her for leading the adult on. As Polly Toynbee wrote on the Guardian website,

How familiar this is. When in doubt, the female temptress is to blame, the old Eve – or in this case, a very young one. The little vixen had led astray a 41-year-old man found to have images of child abuse and bestiality on his computer. But never mind, the indelible image of Nabokov’s Lolita allows men to side with Humbert Humbert. Girls are never innocent, they are born knowing, alluring seductresses at any age, asking for it, in one way or another.

Hmmmm… A number of points need to be made.

  1. What needs to be said right at the start is that there is absolutely no doubt that the 41 year old man was completely and utterly culpable for what he did. There is absolutely no excuse for having sex with a minor. If a teenager comes onto me as an adult it does not matter how assertive he or she is, I am the adult in the situation and I bear full responsibility for the outcome in the encounter. It does not matter if a teenager strips suggestively in front of me (as is alleged in this case), I am the adult and I should know better. Nothing that follows is intended to undermine this basic fact.
  2. If you read some of the reports of the evidence presented in the case it is very clear that this girl was deeply damaged and that she did exactly what is alleged of her – come onto the 41 year old in question. While she may have been operating out of a place of deep brokeness and be entirely a victim, is it indeed fair to describe such behaviour as predatory? The idea that you cannot name a sinful action in a person just because they have been sinned against is something I am very uncomfortable with pastorally. Often in our counselling work as clergy we have to challenge behaviour in people who are victims, because although they are shaped by their wounds they are still responsible for their own actions in response to those wounds. This is part of the growth of discipleship, that we accept that we are agents of sin in the world as much as we are the victims of it.
  3. The cries of misogyny in this matter are groundless. What if it had been a teenage boy being sexually provocative with an adult woman? Would calling him predatory be misandry? Isn’t this really not a sexist issue but rather a matter of how we want to protect children full stop?
  4.  The notion that a minor can or cannot give consent for sex is a complicated matter. We speak of “informed consent” (because in this case the girl very clearly gave consent even though she may very well have not understood the consequences of her actions) but we very rarely define what to be informed means. The law states that children under the age of sixteen cannot give informed consent and that it is an unqualified crime to have sex with someone under the age of 13 and having sex with someone between the ages of 13 and 16 is also a crime if it was reasonable to assume you were aware they were under the age of 16. There are also restrictions on having sex with someone between the ages of 16 and 18 if you have any form of authoritative relationship with them (i.e. you are their teacher).
    The problem of course is that the age limit in this regard is to some extent arbitrary. It is apparent to anyone who has spent time with a significant number of teenagers that some fourteen year olds are perfectly capable of giving informed consent and some seventeen year olds are clearly not, despite their legal ability, emotionally capable of making such a significant decision. But regardless, we set the bar at age sixteen.
  5. We have however the peculiar situation where the law says that you can’t have sex under 16, but statutory agencies help you to have sex under the age of 16. Don’t believe me? Here’s the NHS Live Well website on the subject.

    Will they tell my parents?

    Contraception services are free and confidential, including for people under 16 years old. This means that the doctor or nurse won’t tell your parents, or anyone else, as long as they believe that you’re mature enough to understand the information and decisions involved. There are strict guidelines for healthcare professionals who work with people under 16. If they believe that there’s a risk to your safety and welfare, they may decide to tell your parents.

    Am I the only person who thinks this is bizarre? How can something be illegal and yet facilitated by the State? Of course, the reason why this contradiction occurs is because of the elevation of the self and the supremacy of consent – it does not matter whether something is immoral or not, if the people doing it consent that who are we to deny them that activity? Why should we prosecute two teenagers for doing something that they consent to? But wait, didn’t we a moment ago say that minors couldn’t give informed consent? Which is it to be?

  6. This leads us to another startling observation and question. Why are we complaining that teenagers have consensual informed sex with adults when we bombard them with sexual imagery from an early age and we sexualise them with the kind of clothes that are really not suitable for them to wear? And of course the irony of the link I provide to see this in action is that the very newspaper complaining about sexualising children with this kind of clothing itself sends out a message every day on its third page that woman are sex objects. This is the heart of the problem – we want to demonise those parts of a liberal society that don’t appeal to us but we want to defend our right to do what we want without the disapproval of others. It simply won’t stick but vast numbers in our society apply logical blinkers to avoid this very problem.

And so back to this unfortunate 13 year old caught at the centre of this tragic sexual abuse case. I wonder whether the reason so many people are so angry at the assertion in a court of law that this girl was sexually predatory and eager to have intercourse with the adult (even though the man in question should very clearly have refused) is that to accept this is to unravel the complicated web of denial and contradiction that our society creates to avoid the problems around the morality of all kinds of sexual activity, let alone underage intercourse. In a society that will not accept the Biblical call to holiness of sex within and only within the marriage of a man and a woman, our god and point of authority instead becomes consent. But we then have to deny this particular girl her right to give consent because our deification of the concept leaves us in a deeply disturbing place when faced with the situation of an adult having sex with a teenager. To defend ourselves from this contradiction we introduce the notion of “informed consent” which we then link to a subjective barrier (turning 16) which in and of itself gives absolutely no guarantee that an individual will be in any way informed enough to make a valid decision. We compound this situation by insisting that it is utterly inappropriate to suggest in a court of law that minors ever desire to have sex with adults and that they attempt to create situations where that occurs because we want to protect this notion of informed consent to allow ourselves as adults to be able to consent to whatever we want to do sexually and not have any societal disapproval. However, whilst we consequentially insist that minors cannot give informed consent for sex, we then facilitate their uninformed consent by equipping them to engage in their uninformed choice to have sex if they so choose, just as long as the person they do it with is aged under 16, despite the fact that it is illegal. And all this because consent is king, because consent is the ultimate arbiter of morality. You can do anything you want as long as it’s consensual, but then again you can’t if we say you can’t if it makes us uncomfortable.

And then we wonder why our society has so many broken people sexually.

Or of course it could just be rampant misogyny. You choose.

Update

Prisoner Ben writes some good stuff on this as well.

Obviously, to point out that 13 year olds can be sexually predatory is to invite comment. Most of it based on straw-doll arguments. To say that such children can be sexually predatory is not to defend the men who succumb. It is not to argue for a lowering of the age of consent. And it is not to argue that “she was asking for it” (though she literally did, it seems). It is no more, and no less, to state a fact – that people under the age of 16 can have a sexual will and act to achieve it.

This is repellent to some minds. It flies in the face of their world-view, it is to challenge the sometimes twisted ideology that inveigles some crevices in the child protection movement. They cannot encompass the idea that children can be sexual, let alone predatory. I find this worrying, even frightening, that such a denial of reality can take such deep roots that to challenge it is beyond civilised discourse. Such stupidity craves challenge.

It is possible to advocate child protection whilst accepting that some children are sexual beings. It is possible to admit that some people under 16 can have sex willingly, without trauma, and yet not be advocating sex between them and adults. In short, no matter how sexually predatory a child may be, it does not excuse – even implicitly – the adults involved.

Once this is accepted, even slightly, then the Outraged move on to their ultimate argument – that children (even if sexual) are not sufficiently endowed with emotional or moral reasoning to be allowed to make sexual choices. This may or may not be true; it is largely irrelevant to my argument. For the very same people who heap abuse on anyone who dares throw the reality of biology into the faces of the po-faced are the ones who cheerfully insist that children who have sex with other children are abusers and should be thrown in prison.

Interesting…. So kids are not sexual. Or even if they are, they are not responsible. Ever. Unless we decide they are. Then we throw them before the courts and hold them accountable for the very sexuality we deny they are capable of being responsible for.

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  • Martin Reynolds

    I suppose what we are seeking is a safe environment for deeply damaged youngsters to thrive in.
    These children have mostly come from families where deeply depraved parents or close family members have created this desperate desire to engage in sex with practically anyone.

    When placing children like this for adoption same sex families or single gay people were often seen as the best possible option.

    Social work reports often used to contain the word “predatory”. I always found it hard to accept this description.

    This whole thing does not lend itself to the opinion columns of newspapers, nor even considered blogs such as this, but I have seen the love of adoptive families transform and restore these children who have been so obscenely betrayed. Thanks be to God for this healing love!

    • Fiddlesticks

      I agree with Martin. I find the use of the word ‘predatory’ rather disturbing. A child can’t manipulate an adult – adults are not victims of children – they have the life experience to know right from wrong and the child doesn’t. A child who is attempting to gain love through sex (or whatever is going on) has not known real love and acceptance. Any grown-up man will recognise this and feel pity and embarassment – not cave in to his own desires. This is what it means to be an adult – to be responsible for your own feelings and able to control your actions.

      • http://www.peter-ould.net Peter Ould

        Children manipulate adults all the time. My 2yo manipulates me by doing a frustratingly cute adorable smile everytime he’s trying to get away with something…

        • Fiddlesticks

          Children *try* to manipulate adults all the time, but they shouldn’t succeed. But I’m sure you’re quite capable of saying ‘I’m sorry, but you’re not going to get away with it!’ (well, most of the time anyway – we can’t be perfect parents!)

          I’m not saying that it’s not a sin to try to manipulate people. I’m saying it’s not the 2-yr-olds fault if the adult caves in. I haven’t got time for parents who sulk about how they had to give their children this and that because they pouted or smiled. They chose to cave in – they can’t hold that against the child.

    • Fiddlesticks

      Perhaps it would be better to describe it as ‘unaware of sexual boundaries’ or ‘sexually inappropriate behaviour’ or something like that. Sorry to harp on on this. I’m just quite shocked that social worker reports would contain a word like ‘predatory’. I’m sure I’ve done my fair share of manipulating people when I was a child (heck – I probably still do!), but if somebody described me like that I’d want to shoot myself!

  • Phil Taylor

    Actually, Martin, I can say that young people who engage in sex can be just as “normal” as those that don’t, and vice versa. It is just as much societal influences that are to blame, if not more so, for the increased sexualisation of the world we live in. I know of one woman who is in her thirties who grew up in a Christian family and ended up having her first child at the age of 16. And yet this child, who grew up in a broken home, is now over 21 and is in no way disturbed by their experiences.
    Certainly the girl in this case appears to be disturbed, but the behaviour is not dissimilar to how many teenagers often seem to behave with each other. The huge problem, which Peter clearly highlights, is that society encourages such behaviour with it’s actions and yet deplores it with it’s words. Is it any wonder that with such contradictory messages the UK is in the mess that it is in. http://www.fpa.org.uk/factsheets/teenage-pregnancy

    • Martin Reynolds

      My comment concerns those children who are similar to the girl in the story.
      Many families with members who have mental health concerns or some form of disability struggle daily with issues around consent and capacity. The arbitrary age qualification can cause many problems, but few of us can consider altering it. Though as Peter points out its application takes account of circumstances.
      Contradictory messages are, my lads tell me, the stuff of parenting!

      • http://www.peter-ould.net Peter Ould

        Thanks Martin,

        I realise that you have a big stake in this talk of parenting and looking after broken children. I find it’s often better to discuss these things with people who have first-hand experience rather than just a theoretical knowledge.

  • Tom

    Peter, I feel part of the problem is that “informed consent” in regards to sex is a nonsense. The term is borrowed from the world of surgical procedures where people need to understand the clear risks and benefits of the operation they agree to. In something as emotionally complicated and as poorly thought through as most sexual encounters are, how can we talk of informed consent? Are those who speak of it under the impression that before every “consenting” adult encounter, a discussion of the possible physical and emotional risks takes place, or even that both parties understand these risks?

    Physically, but even more so psychologically, emotionally and some of us would say spiritually, sex can damage. The idea that you can obtain informed consent for all of these possibilities is just an absurd notion, even for adults, which is precisely why it is something that should be kept within the relative safety of marriage. To suggest some clear cut age distinction at which one suddenly wises up to all of the issues surrounding sex is absurd; the problem is not with how we think of children or women, it’s with how we “adults” think about sex. The use of the word “informed” to make it sound much more grown-up and serious just highlights the fact that those using it don’t really understand the term and haven’t thought through the issue.

  • Quinquagesima

    I absolutely agree with all you say, Peter, and had similar thoughts when I heard this story. So thanks for putting it into words!

    One thing that did disturb me, though, was that this description of the girl as ‘predatory’ came from the defence barrister, whereas (as you so rightly point out) even if she was, it is no defence at all. It may well be that the young victim, in all her naïvety and brokenness, still bears some moral responsibility in this situation; but that does not diminish one whit the responsibility of the perpetrator.

  • sheppied007

    13 or 14 year olds you can work a maximum of 12 hours in a week during term time and a maximum of 25 hours in a week during school holidays. So, let’s say that after working as a part-time Sales Assistant for one month, the cash-strapped youngster tried to apply for a pay day loan. It would not diminish the responsibilty of a lender to reject the application as unenforceable.

    Even if the 13 year old was not solicited, but literally asked for it (the loan), the fact remains that, as a minor, the child is incapable of forming a legal contract. Whatever consent is offered, minors are legally considered incapable of understanding the full consequences of such actions until they reach the age of majority. Lenders are aware that, on account of minimal experience of how the world works, the consent of a minor will be considered to lack the necessary intention. Genuine intention involves a basic foresight of the key consequences of the action undertaken.

    If consent is viewed in this light, the culpability of the adult is not diminished by the advances of a minor, however ‘predatory’. In the case of such a young person, we may consider her reckless and immoral, but we cannot attribute even partial legal responsibility to her. Not any more than we would hold her partially responsible to honour a pay day lender’s contract.

  • HarryJM

    The issue of the state facilitating sexual encounters when they are illegal is even more complicated by the question of whether it is illegal for two 15 year-olds to have sex. If it is not, then we have the absurd situation that it becomes illegal when the first reaches 16 then legal again when the second does.

    • Guglielmo Marinaro

      I speak under correction here, since I have no legal expertise, but I think that the answer is yes, it is, strictly speaking, illegal for two 15 year-olds to have sex. The question then arises, what do we want to do to them? Bang them up in prison, or at least in young offenders’ institutions? Put them on the Sex Offenders’ Register? It is difficult to see that such harsh measures would confer the slightest benefit either on them or on anyone else. I imagine that, unless there were exceptional aggravating circumstances, the Crown Prosecution Service would decide that a prosecution was “not in the public interest” – as it clearly wouldn’t be.

      Minimum ages are necessary for all sorts of things, even if they produce anomalies that defy logic. For example, you can’t make a valid will unless you are over 18. This is to prevent minors from being pressured or deceived into signing away their financial rights. Does this mean that up to and including the age of 17 years and 364 days you are totally incompetent to manage your own financial affairs, but that the following day you mysteriously acquire competence? Hardly.

      • sheppied007

        Valid points up to the last sentence. Legal capacity differs from legal competence. The former involves the ability to comprehend the nature of one’s actions. By nature, I mean that a person has sufficient awareness gained through life experience of the likely consequences. The latter is either relented to a defendant’s fitness to plead, or a witness’s ability to understand questions and respond with understandable answers.

        The legal incapacity of a minor to consent sexually is a conclusive presumption. It cannot be rebutted by presenting contrary evidence. In that sense, it differs from the other presumptions, such as innocence and paternity, which can be rebutted by clear and convincing contrary evidence.

        Legal capacity applies s uniform standard by which a society has agreed (by law) to hold a person fully accountable for the consequences of their actions. I think the defence was trying to probe the validity of such a conclusive presumption about consent in the face of such reckless behaviour.

        The central issue is about the fairness of subjecting a child to a hostile cross-examination of their motives. What sort of lasting damage could that cause?

        Our courtrooms see defence barristers use badgering, innuendo and sarcasm to demolish the credibility of a rape victim. As a society, we can decide that we still do not want our kids to face the full rigour of an adversarial cross-examination about whether they gave consent.

        On that basis, the legal presumption in a child’s favour should remain.

      • HarryJM

        If you are correct in saying that it is, strictly speaking, illegal for two 15 year olds to have sex, then the current policy of issuing free condoms to 13year olds without informing parents, while it may be sensible, is also aiding and abetting a crime. Interesting!
        The truth is that there is a continuous spectrum of culpability from consensual underage sex between minors through to clear cases of violent rape without any suggestion of consent. We need to leave it to the judges and juries who have heard all the evidence to gauge where to place any particular instance and grandstanding of any sort from the sidelines is not helpful.

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