I had to write this one offline – with a chai – and save to post later…
My friend Shal commented on my Intro to Children’s Rights:
Discriminating on capacity/ability rather than age, and eliminating the category of ‘minor’ would make children even more susceptible to abuse. Our court system would become mired with cases of adults and their child victims (willingly or under duress) attempting to argue that the child’s capacity/ability makes him/her a consensual participant. And that is only in cases where there are individuals who are concerned enough to report it, because after all, it is not technically illegal anymore for an adult and a child to have sex because there is no such thing as a “child.”
This raises an important consideration – prevention of sexual abuse. When Shal says ‘Our court system would become mired with cases of adults and their child victims (willingly or under duress) attempting to argue that the child’s capacity/ability makes him/her a consensual participant’, she brings up a legitimate concern about eliminating the category of minor in the real world that is in existence today, without changing anything else.
In this case the current category of minor partly makes up for the unsatisfactory nature of policy, practice, and consciousness of in the area of sexual assault. Non-consensual sexual interaction is sexual assault no matter who it happens to, of whatever age. Unfortunately, our culture is confused about recognising and prosecuting non-consent.
When it comes to child sexual assault, here’s the quick answer: the power imbalance between an adult and a child is too great for sexual consent to be possible. If courts could recognise imbalances of power, we wouldn’t have to worry about having rules about age.
If courts opened their eyes to the difference between genuine consent (a freely made – unpressured, active desire and decision for) and the misogynistic construction (the lack of a no, or an unconvincing no) we’d be protecting children and many other vulnerable individuals unprotected in practice today.
Child sexual assault is objectively wrong. It is not so as a product of our definition of under-18s as minors.
My favourite book on the topic of sexual consent is Yes Means Yes; Visions of Female Sexual Power and an Era Without Rape, and the corresponding blog is also excellent: the Yes Means Yes blog.