“Are these critics of equal rights for children really driven by a paradoxical fear that children’s true wishes would be systematically overridden by a future legal system that did its utmost to respect them? Or are these fears about consent not their real fears?”
– Sarah Fitz-Claridge
From the archives: First published in Taking Children Seriously 12, May 1994
Following my editorial in Taking Children Seriously 10, Who counts as a rights holder?, Professor Lawrence White wrote in to offer the following criticism:
Who counts as a rights holder?: a critical response by Professor Lawrence H. White1
“You propose, as I understand it, that there should be no ‘age of consent’ law. I disagree.
Let us assume, consistent with libertarian rights theory, that genuine and manifest consent to be bound by an agreement is necessary and sufficient for that agreement to be legally respected. The concept of an ‘age of consent’ in natural or common law addresses the question of when children shall be assumed able to give genuine consent, or conversely, addresses the question of when “manipulation” of children to secure their agreement to something represents an invasion of their personal rights. It seems to me that the same questions arise in business as in sexual relations with children, so when I speak of an ‘age of consent’ I mean not just the age at which a child is able to give legally-to-be-respected consent to sexual relations, but also is able to sign legally binding contracts.
You are right that any legal age of consent is arbitrary. For that reason we should think of it as only a default value. That is, a child below the default age of consent can, upon providing evidence of competence, make agreements that must be legally respected.
My concern for distinguishing genuine from pseudo-consent is that children below a certain level of cognitive development are, how shall I put this?, too easily manipulated. They are not competent to give or withhold meaningful consent. Cognitive development is normally associated with age. With a child below a certain age, then, I propose that the burden of proof should rest on a party who contends that the child is competent to give consent (has not been manipulated).
Suppose that a paedophile seeks pleasure from sexual contact with a three-year-old. The child does not protest; he or she may even say ‘okay’ to the paedophile’s proposal of sex (accurately described ex ante) for ice cream. It seems to me that, prima facie, the three-year-old’s parents (or legal guardians) properly have an actionable claim against the paedophile for physically violating the child’s personal sphere. Further, given that most three-year-olds are not legally competent, the burden of proving that this three-year-old is legally competent should lie with the paedophile. (A reasonable age of consent would be above three years.) Has my reasoning gone wrong somewhere?”1– Lawrence H. White, Associate Professor,
University of Georgia, USA
My reply (Taking Children Seriously 12, p. 10):
Thoughts on the legal status of children
My editorial on children’s rights (Taking Children Seriously 10, p. 5) has provoked some thoughtful responses raising many interesting questions that I’d like to address in this and future articles. First, what would a legal system that treats all individuals equally be like? Secondly, is it a good idea, even in principle, for children to be subject to the same rules adults are? People have various overlapping reasons for believing that this is a bad idea. In this article, I shall outline the main ones.
First, there are political reasons. A society in which children had fully equal rights would be very different from ours. To make such large changes precipitately is utopian and therefore, as Karl Popper has stressed, dangerous. Political changes are likely to have unintended consequences because future knowledge is impossible to predict, and the more dramatic the changes, the more unintended consequences there are likely to be. When making political changes, we have no option but to start from where we are now, and make small, incremental changes, being prepared at every stage to change course should we find that our changes have caused deleterious consequences. Furthermore, the changes necessary for children to be made subject to the same laws as adults will never happen until most adults want it to. That seems highly unlikely in the near future.
A second class of reasons for objecting to legal equality for children is that so long as families have the power structure they do now, such a change would be dangerous for children. It would provide further incentive for and means of coercion to parents and adults of ill-will.
This article, then, is not so much a proposal for political action as an attempt to clarify some of the issues and to open the ideas to debate. One of the reasons I think this is worth discussing, despite the criticisms one might justifiably make of its immediate practicality, is that these ideas do have far-reaching implications for family life. Changes in personal lives may seem less dramatic, but are ultimately more important. Real changes in society are rarely caused by political change or legislation; they are caused by shifts in attitudes at the individual level. In other words, political enlightenment follows personal enlightenment, not usually vice versa.
One should not dismiss legal issues entirely, for there is a complex two-way relationship between social structures and people’s individual views. Ideas, from whatever source, occasionally lead to enlightenment; enlightenment sometimes changes attitudes; and ultimately, it is these changes in attitudes—in this case in individual parent-child relationships—that constitute a change in society.
The third class of reasons includes a variety of objections to the principle that children should be subject to the same rules as adults. Broadly, these can be categorised as follows: first, objections arising from a fundamentally authoritarian world-view. I shall not deal with those here. Secondly, there are objections arising from a disagreement about which classes of individuals should be regarded as full, free human beings, entitled to equal treatment under the law. It is those objections that I address in this article.
Lawrence White’s letter raises several issues, but the principal one is about consent: is the reason for not wanting children to be subject to the same rules as adults that it would actually result in violations of children’s consent, or is it that children’s wishes are not regarded as being as important as those of adults? These two reasons are often confused, particularly when people argue in terms of “competence”, which seems to engender much equivocation. In answering Lawrence White’s letter, I shall focus upon clarifying this confusion.
Who are the free people?
Popper says there are two approaches to political issues: to ask “Who should rule?”, and to ask “How can we so organise political institutions that bad or incompetent rulers can be prevented from doing too much damage?” In this article, I follow Popper in trying to take the second approach.
The traditional libertarian argument applying to most adults is that it is the function of law, government, and codes of ethics to empower individuals to make decisions in their own lives, and to prevent others from making decisions on their behalf. So for many, the issue hinges on whether the general argument for a libertarian legal system and ethics applies to children or not. In other words, for adults, we do not see the law as a means of making individuals take the right decisions in their lives: we see it as a way of allowing them to conduct their own lives as they see fit, so long as they allow others to do the same.
Many people systematically make the wrong decisions in their lives, yet society allows them to. Take marriage, for instance: many individuals choose partners whom it is generally agreed are entirely unsuitable. Yet we rightly take it for granted that they should be free to do so even if a third party could persuade a judge and jury, or even the entire world, that the individual’s choice of partner is likely to be disastrous. In our society, adults are free to make decisions that will have adverse effects upon their lives.
Who are the free people? This is a real and important question in itself, and there have been all kinds of answers in history which would seem bizarre now: at one time or another, the excluded groups have included women, slaves, non-property-owners, various religious groups, and so on. I argue that children should not be excluded, that children should be free people, just as it was once argued that women should be free people.
The legal system
What would our legal system look like if children were subject to the same rules adults are now? This is not central to my argument, but it is worth thinking about, because of the objections many adults raise. Would two-year-olds be signing contracts to buy and sell houses? Might a three-year-old, having accepted an ice cream in return for sex, fall prey to a manipulative paedophile, as Lawrence White has suggested? Would a wealthy minor, through youthful lack of understanding, be likely to lose that wealth to an unscrupulous businessman? The answer to these questions lies partly in existing contract law, to which I now turn, in order to show that if children were treated equally under the current legal system, it would not be the disaster people think it would: for equal rules would not mean equal outcomes.
Contract law is one of a number of branches of the law, but in an important sense relevant to the present discussion it is representative. In common with other parts of law, one of the problems encountered in the history of contract law has been that of how to make agreement, or consent, a legally significant criterion, in situations in which the existence or even the meaning of agreement or consent is controversial.
Contract law evolved to provide a means by which individuals can make legally binding agreements. In the nineteenth century parties to a contract were seen as representing equal bargaining powers who enter into an agreement of their own free will. The history of contract law reveals a series of clever, creative solutions to the problems encountered in an increasingly diverse and complex society in making sense of the notion of a “freely-entered-into agreement”. Many of those problems were the same as those raised now in relation to children.
The first essential of a contract is that there must be ‘consensus ad idem’, that is, the parties must be of the same mind. This means, for instance, that when A is contracting to buy a car from B, both A and B have in mind the same car. Similarly, a party may deny a contract on the grounds that it is in effect not his deed (‘non est factum’)—for instance because he could not read and had been misinformed about what he was signing. If a child found that he had signed a contract fundamentally different from that which he believed it to be, he could disclaim it by pleading non est factum, or that there was no consensus ad idem.
Another essential of contract law is that there is an intention to create legal relations. That is, the parties must intend to be bound by the contract. Casual undertakings, or even promises, are not legally binding unless there is evidence of such an intention. Thus children would not be in danger of incurring liabilities unintentionally. If a child does not know what a contract is, or what it means to be bound, or what it would mean in this case, there would be no contract.
Certain contracts, including those where there is a fiduciary or confidential relationship between the parties, are such that only one party knows all the material facts pertaining to the contract. The law requires such parties to show ‘uberrimae fidei’, that is, utmost good faith, by making full disclosure of all the material facts. (That does not mean that party A has to act in the ‘best interests’ of party B, and it would be a very bad thing if it did.) This principle ought to apply in any situation in which an adult is making a contract with a child in his care. He would have to make sure that he revealed all information which the child might reasonably want to know to make the decision. In the absence of proper disclosure, the child could rescind the contract.
Were an adult to make a child sign a contract by using pressure or coercion, that would constitute duress, and the contract would be voidable. The forms of intimidation usually recognised involve threats of violence and the like, but the degree of seriousness of threat necessary to render the contract voidable depends on the ability of the threatened person to resist the intimidation. Were children not specifically deemed incapable of making most types of contract, they would simply get relief on grounds of duress in cases where adults used their greater age and power to intimidate or manipulate them.
The law also recognises other factors which might cause one party to be influenced by another in a way that makes a contract between them invalid. This is called ‘undue influence’. It is important to note that ‘undue influence’ in law does not necessarily involve any wrongdoing. Where there is domination which undermines the independence of the decision of a party, that party can claim relief on these grounds.
In case Smith v. Kay, (1859), a young man’s claim of undue influence was upheld by the Court because, despite there being no fiduciary relationship involved, the young man had incurred liabilities under the influence of an older man. In another case (Allcard v. Skinner, 1887) a woman who had joined an austere religious sisterhood and given all her property to the lady superior, later left the community. There was no suggestion of any undue pressure or other wrongdoing by the community; nevertheless after six years the woman sought to retrieve the property she had given, on grounds of undue influence. The only reason she failed was that she had waited six years before acting.
In certain situations where there is a special relationship of confidence between the parties, undue influence will be assumed unless the contrary is proved. One such relationship is parent and child. This list is not closed, and were children allowed to make contracts, it ought to include any relationship that tended to undermine the child’s independence of decision.
All this indicates that if children were not considered legally incapable, as they are now, they could still have a high degree of protection under contract law. In cases where there is an unequal power relationship, contract law seeks to protect the underdog. Any adult making an agreement with a child might be risking vitiation of the contract unless he were to ensure that the child received independent advice before signing it. Adults caring for children would find it necessary to act, and be seen to act, with ‘utmost good faith’. For example they would have to ensure that the child received proper independent advice before signing any contract. This would protect children from the potential manipulation that rightly concerns so many of us.
What about contracts with strangers? Adults not in a caring relationship with the child would not be subject to the same legal constraint. Nor should they be. Adults should be legally required to act with utmost good faith towards a child only in cases where the child reasonably expects the adult to be trustworthy—in other words, if the child is to a greater or lesser degree in the care of the adult. For instance, let’s take the case of a lost child asking an adult to take him home. Whether the adult was a complete stranger or not, in agreeing to take the child home, he would be accepting the role as the child’s carer, and would therefore be subject to ‘uberrimae fidei’. A taxi driver could not ask a child for a 1000 pound (approx. US$1500) fare without revealing that this was unusually high.
The nature of consent
Lawrence White asks when manipulation of children represents an invasion of their personal rights. The answer to this question must be prima facie “when they think it does”. How else can we judge? That others answer this differently suggests that there is disagreement about the nature of consent. By “consent” I mean simply free, willing, genuine agreement. Lawrence White distinguishes between real consent and that gained by manipulation, which he terms “pseudo-consent”. In a case of pseudo-consent, then, the child himself is happy with the situation, but he would not be if he were competent. This may be contrasted with pure coercion, in which he is not happy with the situation.
I shall not argue that manipulation does not occur; indeed, manipulation affects individuals of all ages. It is indubitably more likely that manipulation will occur within certain groups of individuals, for example, children, the sick and elderly, recent immigrants and tourists, than within other groups. Only in the case of children (and to a lesser extent those deemed ‘mentally ill’) does the law that ostensibly protects them from manipulation render them subject to something much worse: outright coercion. Unlike the adult groups, children are arbitrarily deemed legally incompetent, and specifically prevented from acting in accordance with their possible wishes. The law that seeks to thwart the intentions of manipulative paedophiles also prevents sex between mature almost-of-age individuals in a loving relationship. The law whose object is to save callow youths from impolitic contracts also frustrates astute young entrepreneurs.
To suggest that it is possible to create a law which prevents all suffering is to underestimate grossly the complexity of the human condition. The aim must be to minimise the amount of suffering, always bearing in mind the fallibility of human ideas, and the immorality of using force against people who have done us no harm.
Parents or children? Who should have recourse to law?
Lawrence White suggests that in a case in which a three-year-old had agreed to have sex with a paedophile in return for an ice cream, the parents should have an actionable claim against the paedophile. Whether he is referring to a child who is consenting throughout is not clear. If he is not, the situation becomes one of rape, which is a criminal offence. Whilst it is conceivable that a young child might have some attraction to an adult, as one correspondent has said was true in his case, I dispute the idea that it is remotely likely that a three-year-old would actually be happy to engage in sexual intercourse with an adult, whether in return for an ice cream or not. If the child would do, that in itself presumably reflects rather badly upon the way he has been raised, so to argue that the parents should have legal recourse against the paedophile seems at best misguided.
In English law, since the Children Act, it is not the parents who would have recourse to law in such a case, but the child, so Lawrence White’s proposal would be a backward step. Why should the parents have recourse to law in such cases? What is it to do with them? What argument is there for this view?
It seems unlikely to me that any child could be persuaded to have sex by the offer of an ice cream. But let’s assume for a moment that he could. Wouldn’t his parents have an easy time? If he is that susceptible to the power of ice cream, what could he not be induced to do? “If you unblock the lavatory, Fred, I’ll give you an ice cream.” “Why thanks, Daddy. I’ll do it right away.” Does that sound likely? And even assuming that the child would do anything in return for an ice cream, it should therefore be even easier for the parents to persuade the child to abstain from sex, shouldn’t it? Just think what they could achieve with a whole tub of Häagen-Dazs Cookie Dough Dynamo ice cream!
Under this assumption, these parents might even be considered negligent: they failed to take the simple action possible (offering their child a carton of ice cream) to keep the child away from the paedophile. I am being a little facetious here, but quite generally, I reject the underlying picture of the parent-child relationship that this argument assumes, and I can see absolutely no argument for giving the parents the recourse to law Lawrence White suggests they should have.
Is consent the real issue?
In wading through a great deal of correspondence on this issue, and in the course of many personal discussions, I cannot help getting a certain feeling of unreality. Are these critics of equal rights for children really driven by a paradoxical fear that children’s true wishes would in fact be systematically overridden by a future legal system that did its utmost to respect them? Or are these fears about consent not their real fears?
How one views the suffering caused by the age-of-consent laws and other laws that curtail children’s rights depends upon how much importance one attaches to consent. If consent is the real issue, the most important consideration is clearly how the person himself views a situation. As with adults, then, what matters is whether there is agreement. If a person cannot be persuaded that he has suffered manipulation, the law should not have anything to say about the matter. Consent is about wishes. If a person’s wishes are violated, he is not consenting.
Adults who argue that children are not competent to give or withhold meaningful consent often have no qualms about overriding children’s wishes. If a child has to be dragged kicking and screaming away from a situation his parent thinks he has been “manipulated” into, it would surely be disingenuous of that parent to claim to be motivated by considerations of consent. Many parents would do this, believing sincerely that it would be in the child’s best interests.
One proposal is that there should be a mechanism by which individuals who are under the age of consent may, on proof of competence, make agreements currently legally only open to adults. This does sound more liberal than the present system, but it still evinces an implicit denial of children’s autonomy. Adults have a vision of what children should do in a given situation, and if a child chooses to do something else, the child is deemed incompetent and his wishes are overridden. Were the “incompetence” displayed by an adult rather than a child, he would not be dehumanised in this way.
If consent is the real issue, why is there this difference of approach? Why not be consistent about this competence criterion and apply it to adults? Because they are adults? Does that not strike you as a little circular?
Competence or age? Which is the real issue?
Making competence the criterion is fraught with problems. Are Socialists to be denied the vote, because (Libertarians would argue) they don’t understand economics and so vote for evil? Are libertarians to be denied the vote, because (Socialists might argue) they don’t understand the nature of society and so vote for evil? Should people who have divorced more than a certain number of times be forbidden to marry because they have shown themselves to be incompetent spouses?
Let us assume that we have a legal system in which children younger than the age of majority are able to make agreements on proof of competence. By what criteria should their competence be judged? Are they considered legally incompetent because their consent is in doubt? Because their understanding of the contract is in doubt? Because they don’t have the expertise to be able to make a judgement on the matter? Or because they have the wrong frame of mind? Or because the person empowered to prevent them thinks the contract is a bad idea? It seems to me that where the ostensible reason for excluding children is that they lack competence, the real reason is that they have not reached a particular age. In other words, the argument is vacuous.
No age-of-consent laws
If there were no legal discrimination on the basis of age per se, competence would not be an issue. Consent would be the issue, and the law would not intervene except in cases where there was a dispute. Although there would be no particular age of consent or majority, a young child would be able to complain that he had not consented, and the onus would be on the adult to prove that the child had consented. The younger the child, the more likely it would be that the child would be believed. Adults making agreements with children could minimise their risk by ensuring that the agreements were formalised by a solicitor or commissioner for oaths, who would take whatever steps were necessary to confirm that the child had received independent advice, knew what he was signing, and was fully and freely consenting.
Legal competence based upon consent
If the concern is over whether or not the child is competent to consent, we might envisage a system in which a party making an agreement with a minor would be automatically deemed to be in the wrong unless he was able to prove that the child knew what he was agreeing to and had had proper access to the opposing view. This system, which might one day be a transitional measure, would have an age of consent, but otherwise, it would be quite similar to that outlined above. In this system, it would be very likely that anyone contracting with a child would go through a formalised procedure with the child so that it could be established that the child was consenting.
On the narrow issue of sexual consent, which is just a different kind of agreement, it might be worth mentioning the system Holland has now. The age of consent is 16, but no prosecutions are ever brought against adults having sex with individuals between the ages of 12 and 16, except in cases where the young person complains. In such cases, the onus is on the adult to prove that the child consented, whereas if the dispute were between two adults, the onus would be on the one complaining to prove lack of consent. Where it can be proved that an adult has had sex with a child who is younger than 12, the adult is deemed guilty, irrespective of whether the child says he consented or not.
Competence based upon expertise
Another possible criterion of competence might be expertise. In this case, the test might be whether the child has understood enough of the situation to be able to make an agreement. If society deems such a test of expertise necessary, such as a driving test, that may in many cases be justifiable, but if this test of competence only applies to children, one must suspect disingenuousness on the part of the advocates of such a system.
If the real issue is that professed, namely, ignorance, there can be no justification for not applying it consistently, to adults as well as children. Ignorant adults should be prevented from making contracts just as this system’s advocates would frustrate the potential contracts of ignorant children. If the advocates for this system do not apply the same criteria to all, it must be the case that physical age, rather than ignorance, is the critical factor. If so, this requires justification.
The right frame of mind
The next level of test advocated to determine competence is not about competence or consent at all. It is about whether the child is in the right frame of mind to make a decision. Those who advocate tests of competence for minors wishing to make agreements might consider the following question. What would it take to pass the test? What sort of person would pass or fail this test? Are there any minors with a desire to do something apparently radically unwise who would pass the competence test?
The answer to this question exposes the real psychology underlying this approach. Those for whom the answer is “no” deem children incompetent whenever the children do not choose to act as they think best. So they are not really talking about competence at all, but merely status, as determined by age.
Conclusion
To sum up: I have explained why the fears about the legal effect of abrogating the age-of-consent laws are unfounded, that even existing law contains many subtle yet powerful safeguards to ensure genuine agreement in complex situations. I have pointed out that the laws whose rationale is to protect children from their own folly actually harm them in many instances. I have identified the flaws in the idea that the parents of a child who has consented to something supposedly harmful should have recourse to law. I have argued that many claims of concern for consent are disingenuous. I have demonstrated the vacuousness of the competence argument. Therefore, it still remains for those whose professed argument for excluding children from legal equality is one of consent or competence to justify their position.2,3
Notes
1. Taking Children Seriously 12, Letters, p. 3
2. Parents, be sure to read this important warning.
3. To read more of this argument about why it is morally objectionable for adults to engage sexually with children, and my thought experiment about how it could be possible in principle for children to have full legal rights without that giving paedophiles licence to engage sexually with children, see Children’s rights and the law.
See also:
- On Politically Incorrect…
- Surely the lack of that extra money is a comparative disadvantage?
- The bed-making story
Sarah Fitz-Claridge, 1994, ‘Thoughts on the legal status of children’, Taking Children Seriously 12, ISSN 1351-5381, pp. 10-15, https://takingchildrenseriously.com/thoughts-on-the-legal-status-of-children