The Sexual Rights of Children and the Age of Consent

[Type text]
The Sexual Rights of Children and the Age of Consent
Kieran Walsh
Abstract
This paper will address the outer limits of a child’s acceptable sexual
experimentation. All countries have minimum ages of consent above which a
person may lawfully engage in sexual activity and below which they are
deemed incapable of making an informed choice as to whether to do so and
hence any other person engaged in sexual activity with the child can be
prosecuted.
Society has an image of the virginal child, and any sexual activity on their
part is deemed to be unnatural and the fault of some corrupting influence. Yet
children engage in various forms of sexual experimentation from a relatively
early age as part of their normal developmental process. This paper focuses
on the sexual activity of adolescents.
Currently the law with regard to the age of consent is in flux. Some states
have a strict age of consent, red line arbitrarily set below which a child is
deemed incapable of consent. Others say that a child is capable of consent to
have sex with people around their own age but not with someone
significantly older, a version of what is known colloquially as the young
man’s defence.
This paper will argue that the age of the person with whom sexual acts are
performed can be immaterial from the child’s perspective. For them, the
sexual act is part of growing up. I will argue that the law should recognise the
ability of children to make conscious decisions and that the law should reflect
the reality that adolescents are capable of forming intimate relationships and
acting in a mature manner.
The final section of the paper will address one particular model of age of
consent legislation which it is hoped will be the focus of discussion at the
conference.
Key Words: Adolescent, sex, consent, constructions of childhood, decision
making.
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1.
Introduction
This paper will address the issue of the age of consent. In essence
it will deal with the outer limits of a child’s sexual experimentation. We
currently place this within the framework of child protection. We see
protection as being essential in order to protect children from others and at
times from themselves. Ultimately however, this may be an inappropriate
framework to adopt. When we speak of the age of consent we are adopting
the language of capacity; one can consent to something once one is deemed
by law to possess the requisite capacity to make choice to consent or not.
In recent years, this has proven to be a problematic legal issue in
Ireland especially and also in the United Kingdom. This paper will explore
why this is the case. In doing so, I will focus on the constructions of
childhood which have been prevalent in the law making process. Then, there
will be an examination of the types of laws which have been produced as a
result of these constructions. Third, there will be an analysis of the reality of
the interaction between children and sex so as to establish whether the age of
consent as currently thought of is fit for purpose. Some tentative conclusions
will then be made.
At all times, the image of childhood will be central to the paper.
This is not a simple matter as the image that society has of the child may be
significantly different from the image that children have of themselves. This
paper will adopt the child’s perspective on the age of consent by using
empirical data to assess how they make decisions which exhibit the hallmarks
of reasoned decision making and, as a result, whether they meet the demands
that the law of capacity imposes.
2.
Why Have Age of Consent Laws?
Before we examine in detail varying constructions of childhood,
it is worth explaining the main reasons offered for having age of consent
laws. Some of the ideas discussed here will become clearer as we delve into
constructions of the child and sex offender but the basic premises of such
laws can be outlined now.
First, it is necessary to clarify one point – this paper will focus
on consensual sexual acts. While “consent” and its derivatives are legal terms
of art, it is worth differentiating these acts from ones that are clearly coercive
– based on force, violence, fraudulently obtained consent and so on. It can be
claimed that all sex involves some element of pressure or bargaining. 1 Here
we are examining those acts where a person freely gives consent and any
pressures brought to bear are no more than those ordinarily associated with
sex.
Historically, it has always been a societal aim to regulate
inappropriate sexual contact with children. Laws against sexual activity with
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minors are said to be found in the Code of Hammurabi.2 Vickers and Briggs
describe the situation in classical Athens in the following terms: “Despite a
widespread view … pederasty in the present-day sense of actual sexual abuse
of children was far from prevalent, and was indeed discouraged”.3 The
punishment of those who abused the young remained an imperative
throughout Europe in medieval and early modern times.4 An English law
dating from 1275 demonstrates concern with ensuring that it was a criminal
act to engage in sexual activity with girls, especially prior to puberty. 5 Until
extraordinarily recent times, the law tended to criminalise activity with
underage girls but not boys, highlighting that the virginity of women was a
“special property in need of protection”.6
An interesting issue is the age at which the law allowed children
to engage in sexual acts. It may be more accurate to say that what was at
issue was not really an age of consent but an age of liability, as the emphasis
was on setting a barrier to sexual conduct against children of a specific age.
For much of the age of consent’s history, the age was commensurate with the
physical ability to procreate as demonstrated by the onset of puberty. Hence,
the age at which a girl relinquished legal protection from sexual acts was 12.
As Barroness Hale stated when reviewing English legislation, “the law was
slower to recognise that even consensual sexual activity with children who
might well have reached the age of puberty was both harmful and abusive.” 7
It was only in Victorian times that the age of consent was raised to 16, and
indeed that the concept of consent itself began to be an issue. The Criminal
Law Amendment Act 1885 set 16 as the age of consent.8 The aim of the
legislation was ostensibly to “protect girls, sometimes from themselves”.9
This legislation grew out of a campaign spearheaded by W.T. Stead, whose
articles for the Pall Mall Gazette tapped into a mood of public concern for
children who were entering what was now seen as a white slave trade, and
early feminists seeking to promote social purity in areas with high
prostitution rates. It ignored the reality that children were sexualised from a
relatively young age and that young teenagers sometimes acted out of sexual
desire.10 The movements against sex and sexuality were also class based
movements, driven in large part by middle class campaigners attempting to
rescue the working class from themselves. Victorian society was heavily
concerned with the image of the family and the control of children by their
parents. Graham makes this clear when arguing that “many of the provisions
of age of consent legislation were designed to protect a guardian’s right to
control a girl’s sexuality, rather than prevent harm to the girl”.11
So age of consent law served a twin purpose – it infantilised the
sexually active teenager deeming them incapable of making a choice and it
made control of sexuality a paternalist enterprise. This paternalism was
exercised first and foremost within the family and secondly by the state
through the infantilisation process. It is striking that gendered language still
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pervades more current discourse on sexual activity with minors. Oberman in
particular outlines feminist critiques of US age of consent/statutory rape
laws.12 In large part, these critiques arise out of statutes being gender specific
either in their language or assumptions. It proposed that the language of law
should shift away from the gendered paternalism of the nineteenth century
and towards a rights based analysis on adolescent’s lived sexual realities.
Another way of examining sexual relations of adolescents is
through a Foucauldian lens. Sexuality is deployed “to regulate more
effectively and mask its more indiscreet, conspicuous, and intractable
aspects”.13 One aspect of this is the pedagogisation of children’s sex.14 We
see children as sexual beings but deny that they are a threat; instead
children’s sex becomes an object of concern for adults, something to be
controlled. This can be part of the process of normalisation of adolescent sex
– we problematise the issue through media and law, bringing to public
attention that this is not acceptable sexuality. As a result, a reverse discourse
is initiated whereby the sexual behaviour of adolescents begins to speak for
itself as part of the spectrum of normality, as something acceptable, thereby
normalising it.15
3.
Concepts of childhood
It is important to recognise different conceptions of childhood as
having an influence on the way we view the age of consent. Four of these
concepts will be outlined below.
Legal models of childhood
Law has an inconsistent approach to children. On the one had, it
refers to a wide group of individuals, from new born babies to seventeen year
olds, by a single collective noun, “children”. This is a central tension within
Article 1 of the United Nations Convention on the Rights of the Child which
stipulates that a child is any person under 18 years of age unless they have
attained majority sooner. This recognises that majority is not inextricably
linked to age but that it can be attained by some other means. Therefore, if
the state allows a child the means of contracting out of childhood, the state no
longer owes them protective obligations and they are deemed to have full
capacity. Porterfield and Stanton argue this allows states to “arbitrarily
decide at what age childhood ends and when adulthood begins”. 16 They argue
that a minimum age of fourteen should have been set below which majority
cannot be attained by any means as by this age the onset of adolescence will
have resulted in a significant degree of physical, mental and emotional
maturity leading to the capacity for a degree of self sufficiency.17
On the other hand, law recognises that there are significant
differences between individuals under 18, such as their capacity to engage in
different types of behaviour. To take Ireland as an example, a child can be
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tried for murder at age 10, theft at age 1218 and can learn to drive a car at 17.19
This graduated approach is also represented in the UNCRC when it speaks in
Article 5 about “evolving capacities”. Evolving capacity is recognised as
crucial by the Committee on the Rights of the Child’s General Comment on
Implementing Convention Rights in Early Childhood20 and the General
comment on The Right of the Child to be Heard. This latter comment
recognises that
The more the child himself or herself knows, has experienced
and understands, the more the parent, legal guardian or other
persons legally responsible for the child have to transform
direction and guidance into reminders and advice and later to an
exchange on an equal footing. This transformation will not take
place at a fixed point in a child’s development, but will steadily
increase as the child is encouraged to contribute her or his
views.21
This demonstrates that law realises that growing up is a complex
process, not marked by a single rite of passage but by a series of staged
transitions characterised by the acquisition of growing responsibility and self
sufficiency. This concept of self sufficiency is important because it brings us
closer to an area where the law is beginning to resile from its insistence on
age based distinctions – the concept of capacity. This concept revolves
around the ability to make rational choices, an issue to which we will return.
Social models of childhood
Concepts we use to describe children include the evil child,
innocent child and the immanent child.22 The evil child model shows the
child as inherently sinful, needing to be kept on the straight and narrow
whereas the exact opposite view is taken by the concept of the innocent child.
The immanent child is viewed as a tabula rasa, waiting for experiences to
shape their lives. If we accept Rose’s view that childhood is a heavily
regulated period of life when the state attempts to shape the child’s
attitudes,23 we can see it as the synthesis of these pre-sociological attitudes.
We regard children as blank slates (the immanent model) which can be
influenced; we protect them from inappropriate images and behaviour which
damages their development (the innocent model) and seek to control their
behaviour through the criminal law, education system and parental guidance
(the evil model). In debates about the interaction between children and sex, it
is clearly the model of the innocent child which is most prominently
portrayed. We no longer regard it as appropriate to see the child who engages
in sex as evil; this is especially true when we remember that a child can be
anyone under 18. Nor do we see them as learning from the experience – this
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would merely be a licence for abusers to claim that they are preparing the
child for adult life. Yet there is a problem with the innocence representation.
It fixes in our minds the image of the virginal child when this does not
coincide with reality. From that image of the virginal child we have the
image of children as dependant – they depend on others for support and
protection, meaning that when we construct laws regulating their sexual
action, this false image dominates. It is important to remember that the
falsehood can be more acute for adolescents – they are biologically quite
mature, legally developing full capacity and engaging in psychologically
advanced decision making.
Psychological constructs of childhood
A key issue when attempting to discuss any aspect of children’s
capacity to consent is the issue of child development. The reason for its
importance stems from the realisation that childhood is a process. Mention
has already been made of the concept of “evolving capacities” in the
UNCRC. The scientific research to ground this concept is provided by Jean
Piaget.24 He suggested that child development takes place in four major
stages: sensory motor (birth to 18 months), pre-operational (18 months to 7
years), concrete operational (7 to 11 years) and formal thinking (11 years and
older). While these are guideline ages, they demonstrate the broad evolution
on a child’s capacity. One of the ramifications of any staged development
process is that children are seen as being inferior to adults; adulthood has a
normative value, one unshared by childhood. Hence the child is seen as being
everything that the adult is not – weak, irrational, dependant. This implies
that children are in effect incompetent. On the other hand, this can be taken to
apply only to very young children. Once the final stages of development are
reached there is little to distinguish the more psychologically mature minor
from adults. If it is established that older children, adolescents, have abilities
similar to adults when it comes to the capacity for reasoned decision making,
then the construct of incompetence falls down. It is useful to delve into
philosophical mechanisms which can be used to break the deadlock between
psychological maturity and legal immaturity.
Philosophical constructions on childhood
Archard makes the point that “the philosopher’s child is an
unfinished human.”25 This is because the child is defined in negative terms by
what it lacks rather than what it is – it is becoming rather than being. As a
result of this, there is an inclination towards paternalism. This arises because
“[i]f children were regarded by law as the equal of adults, the result would be
something infinitely worse than barbarism. It would involve a degree of
cruelty to the young which can hardly be realized even in imagination”.26 One
of the weaknesses of the claim that children are simply bereft of adult
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capabilities is demonstrated by the staged theory of development. If the child
develops gradually throughout the years, then surely the absence of adult
capabilities is not total for the duration of childhood. This, Archard argues
allows the child to progress towards fully responsible moral agency
consequent upon this we can argue that there are certain things which it is
wrong to do to a child which would not necessarily be wrong if done to an
animal such as not respecting their choices. Inevitably, this leads to
increasing calls for liberal attitudes towards children, according them adult
status. The weakness of this is quite simple - “it is one thing to underestimate
the capacities of children, another to reckon them equal to those of adults”.27
How can this staged process be reconciled with the competing
philosophical strains of liberalism and paternalism, each with their own
inherent flaws? Freeman argues that liberal paternalism is also a viable
mechanism for the exercise of legal rights – it is possible and valid to reach
an outwardly paternalist outcome if that outcome has been reached with the
benefit of engagement with the child and an understanding of how their
proposed outcome furthers their goals and values. He argues that we need to
“confine paternalism, without totally eliminating it”.28 We should intervene in
a way which allows children to mature into independent adults. The
intervention must be such as to ensure that child will eventually come to see
the correctness of the intervention.
4.
Concepts and constructs of adolescent sexuality
The Sacred
As mentioned above, we have a tendency to view children
through the lens of innocence. As a result, they are virginal, sacred. This
particular construct means that everything law does in relation to children
must protect that sacredness. This is especially true of children and sex. Let
us acknowledge that for very young children it is harmful to engage in sexual
activity. So the focus shifts to adolescents. Traditionally discussion of
adolescent sexuality takes place in the context of so-called deviant behaviour
or risky behaviour.29 What is missing from this construct is any consideration
of who the adolescent in question has sex with. This should be included as a
more accurate indicator of whether the adolescent concerned is really
engaging in deviant, risky behaviour which is abnormal or damaging. All sex
has certain risks – disease, crisis pregnancy, the possibility of exploitation
between people of unequal power – peer with peer sexual activity is less
likely to involve risky behaviour than sometimes thought. This will be
explained later in the paper when we focus on decision making by sexually
active adolescents.
The Profane
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Typically, we think of age of consent legislation being designed
to protect the young from inappropriate sexual advances by older people.
This is now firmly associated with the fear of the stranger who may harm our
children, the paedophile.30 The concept of paedophile requires some
definition. One of the interesting things to have occurred in sexual offences
policy is the move towards the concept of dangerousness. Nash makes the
point that when we examine the targets of sex offences policy throughout the
decades, the emphasis has always been on the danger they pose to society and
particularly to the young.31 This is based on Garland’s dichotomy between
the criminology of the self and the criminology of the other.32 The former of
these approaches sees the criminal as something normal to be controlled
while the latter argues that the criminal is an evil person who does abnormal
things. This is the construction on the sex offender which informs a
significant part of our policy on the age of consent.
Paedophilia requires definition. Freund defines paedophilia as
long term sexual interest in children with the typical body shape of an under11.33 The International Classification of Diseases defines paedophilia as “a
sexual preference for children, largely of prepubertal or early pubertal age.” 34
Paedophilia was once classified as a sociopathic disorder because it ran
contrary to social values.35 The classification of paedophilia as a sexual
paraphilia, thereby ranking it alongside fetishes and zoophilia, is sometimes
seen as little more than a codification of social mores. Support for this claim
is derived from the view that homosexuality was once classified among these
paraphilias as a sexual disorder, yet it is no longer so classified and the mere
suggestion that it could be viewed in this way would likely provoke outrage. 36
This is not to equate homosexuality and paedophilia, but it does help to tease
out some of the issues surrounding how paedophilia is viewed in medicine
and society. Ultimately, the changing classification of it led to its description
as a paraphilia, which is essentially a non-normal sexual attraction.
This medicalised view of paedophilia has also come to dominate
legal discourses. A problem with medicalisation of sex offender issues is that
it can obscure societal factors and the causes of sex offences. By treating sex
offences as pathology we risk ignoring the power imbalances which lie at the
heart of why people commit sex offences, such as issues of dominance and
subordination. Cowburn and Dominelli point out that our construction of the
paedophile is dominated by the type of medical discourse just outlined, but
that a truer reflection of the paedophile can be gained by assessing the
concept of hegemonic masculinity. 37 Here, masculinity is a concept defined
by a set of diametric opposites – the normal man who protects women and
children from harm and the deviant male predator who preys on the
vulnerable. At the centre of this concept of deviance is the fear of the
stranger-danger, a belief that those unfamiliar with the victim pose a greater
danger than those acquainted with them.
Kieran Walsh
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All of this makes clear that one particular group – paedophiles –
are seen as a risk to children. This is made even clearer when one considers
that often the term “child molester” as a synonym for paedophile.38 It
conjures in the mind’s eye an image of children being the victims of
predators. While this does happen, it represents a relatively small number of
offences involving adolescents. The dangers which children face are more
likely to be encountered in their families. By all means criminalise predator
offenders under specific statutes tailored to that purpose. Yet this
construction of dangerousness should play a minimal role in the age of
consent debate. Why do we further criminalise adolescents who exhibit none
of these characteristics and merely wish to engage in normal sexual activity
with members of their peer group? It has already been outlined that the
answer is provided in part by our desire to control adolescent sexuality. What
we will now examine is the adolescents’ view of their own sexuality. This
may help us to construct a legal order which is not dependant on
Durkheimian imagery.39
5.
Why and how do children make sexual decisions?
Following from our earlier discussion of constructions of the
child and adolescent, it is clear that presumptions of incapacity and innocence
afflict children. Yet they are sexual beings to varying extents. As a child
grows towards adulthood, sex and sexuality play increasingly important roles
in their lives. Physical and hormonal changes have taken place which almost
seem to compel sexual expression. Young people are becoming increasingly
sexualised due to a variety of influences including media.40 Whilst
sexualisation of the young is not a desirable state of affairs, the law needs to
react sympathetically to the young rather than in a punitive fashion.
Why do young people engage in sexual activity? It has been
argued that the way in which adolescents make sexual decisions represents a
model of planned behaviour.41 This is based on the theory of reasoned action
which states that “a decision to engage in a behavior (e.g., to have sex) is
directly predicted by an individual’s intention to perform the behavior.”42
Intention is shaped by the individual’s attitude to the behaviour and the
individual’s perception of social norms surrounding the behaviour. To this is
added the impression of self control over the ability to withstand pressure in
decision making. Beadnell’s study indicates that intention to have sex in the
near future is the central determinant of whether this will happen.43 While it
may not sound revelatory, it does make clear that adolescent decision making
is planned. We should now consider the range of factors that go into
establishing that intention.
One study has pointed to there being six factors which are
heavily influential in adolescent decision making: “contextual factors,
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consideration of risks and benefits, boundaries, boundary communication, the
sexual event, and evaluation.”44 Contextual factors are dominated the nature
of the relationship that an adolescent has with their sexual partner, including
matters such as the longevity and depth of the relationship and the belief in
its future. Boundaries and boundary communication were found to be very
important for adolescent relationships. The mutual setting of limits to sexual
activity was an issue of major importance in these relationships,
demonstrating the relevance of self control and self efficacy in decision
making. What this demonstrates is that decision making is a dynamic
process, constantly evolving depending on the adolescent’s image of self and
their image of their partner. This is relatively new departure in discussing
decision making, which had previously been based on identifying risk factors
leading to sex.45 This emphasis on risk is based on a belief that adolescent
sexual activity is a deviant behaviour associated with other non-desirable
social outcomes. While these studies are based on American adolescents, the
same reasoning is found internationally. When Russian adolescents were
asked “what is the most important thing in sexual relations?” the most
common answer from both males and females was “love”.46
6.
Recommendations
It is clear that one of the most difficult issues for law is to strike
“an appropriate balance between protecting children from sexual abuse and
exploitation, on the one hand, and permitting the sexual expression of young
persons as they proceed through adolescence into young adulthood, on the
other.”47 Freeman’s philosophical model of liberal paternalism offers a
solution. Archard posits that the abolition of a single age of consent may be a
way to achieve liberal paternalism in debates about adolescent sexuality.48
Canada has achieved a quite sensible balance. The age of consent in Canada
is 16.49 However, two exceptions apply. First, if the complainant is between
12 and 14 years of age, it is a defence to a criminal charge to show that the
complainant consented if the accused is not more than two years older than
the complainant or in a position of trust or authority or the relationship is not
exploitative.50 This provision is replicated for 14 to 16 year olds with the
permissible age gap between partners increasing from two to five years.51
7.
Conclusion
At first sight, the Canadian position seems complicated, but so
is sexuality. The issues raised in this paper are reflected in the balance it
achieves between protection of the young based on our social constructions
of the child. It does away with the idea that dangerousness and risk are the
key issues for teen sexuality, rather than planned behaviour and the
development of intimate relationships.
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Notes
1
M Chamallas, ‘Consent, Equality and the Legal Control of Sexual Conduct’, Southern California Law Review, vol. 61,
1988, p. 777.
2
R Edison, ‘The Constitutionality of Statutory Rape Laws’, University of California at Los Angeles Law Review, vol. 27,
1980, 27, p. 757
3
M Vickers and D Nash Briggs, ‘Juvenile Crime, Aggression and Abuse in fifth-Century Athens: A Case Study’ in
Children and Sexuality: From the Greeks to the Great War, G Rousseau (ed), Palgrave Macmillan, Basingstoke, 2007, p.
45.
4
See generally G Rousseau (ed) (n 3) Part I.
5
Statute of Westminster I, 1275, 3 Edw. 1, c. 13.
6
J McCollum, ‘Case Development’, Howard Law Journal, vol. 25, 1982, p. 341, 355-356.
7
R v J [2004] UKHL 42 per Baronness Hale, para. 74.
8
Criminal Law Amendment Act 1885 s 5.
9
Criminal Law Revision Committee, Fifteenth Report on Sexual Offences (Cmnd 9213), HMSO, London, 1984, para 5.22.
10
This does not apply so much to child prostitutes but to working class minors more generally. As an example, see evidence
given by C. E. Howard Vincent on 19 July 1881 (Report from the Select Committee (H.L.) on the Law Relating to the
Protection of Young Girls (1881) p. 70) quoted in D Graham, ‘The “Maiden Tribute of Modern Babylon” Re-examined:
Child Prostitution in Late-Victorian England’, Victorian Studies, vol. 21 (3), 1978, p. 353, 365. See also J Weeks, Sex,
Politics and Society: The Regulation of Sexuality since 1800, 2nd ed Longman, London, 1989.
11
Graham (n 10) p. 363-364 makes this point especially in relation to the abduction provisions of the Offences against the
Person Act 1861.
12
M Oberman, ‘Turning Girls into Women: Re-evaluating Modern Statutory Rape Law’, Journal of Criminal Law and
Criminology, vol. 85 (1), 1994, p. 15.
13
M Foucault, The History of Sexuality: Volume 1 – An Introduction, Allen Lane, London 1979, p. 104 cited in D Colson,
‘The Pedagogisation of Sex, the Sexualisation of Pedagogy: Foucault, Shakespeare, and Adolescent Sexuality’, 49th
Parallel, vol. 22, 2008, p. 48 at p. 50.
14
Foucault (n 13). See Colson (n 13) for an example of how Romeo and Juliet can be seen as a cautionary tale against the
“perversion” of adolescent sexuality.
15
This is based on Foucault’s own discussion of homosexuality (n 13 p. 101) discussed in J Bristow, Sexuality, Routledge,
London, 1997, p. 178
16
T Porterfield and G Stanton, ‘The Age of Majority: Article 1’, New York Law School Journal of Human Rights, vol. 12,
1989, p. 30 at p. 31.
17
Porterfield and Stanton (n 13) at p. 33-34.
18
Criminal Justice Act 2006, s 129.
19
Road Traffic Act 1961, s 31.
20
Committee on the Rights of the Child, Implementing Child Rights in Early Childhood, (General Comment No 7 of 2005
CRC/C/GC/7 Rev 1 2006).
21
Committee on the Rights of the Child, The Right of the Child to be Heard, (General Comment No.12 of 2009
CRC/C/GC/12) at p. 84.
22
C Jenks, ‘Sociologocal Perspectives and Media Representations of Childhood’ in Legal Concepts of Childhood, J Fionda
(ed), Hart Pubishing, Oxford 2001.
23
N Rose, Governing the Soul, Routledge, London, 1989 at p. 121, quoted in C Jenks (n 22) p. 20-21.
24
J Piaget, The Psychology of the Child, Basic Books, New York, 1972. Lansdown makes the point that while Piaget’s
theories have been largely discredited, it is impossible to ignore the concept of staged development entirely. See G
Lansdown, The Evolving Capacities of the Child, Innocenti Research Centre, Florence, 2005, p. 23. For a succinct criticism
of Piaget’s thories, see H Gardner, ‘Wrestling with Jean Piaget, My Paragon’, available at
http://www.edge.org/q2008/q08_1.html#gardner, last accessed 18 March, 2010.
25
D Archard, ‘Philosophical Perspectives on Childhood’, in Legal Concepts of Childhood, J Fionda (ed), Hart Pubishing,
Oxford 2001, p. 43.
26
J Fitzjames Stephen, Liberty, Equality, Fraternity, Cambridge University Press, Cambridge, 1967 at p. 193 quoted in F
Schrag, ‘The Child in the Moral Order’, Philosophy, vol. 52, 1977, p. 167 at p. 173.
27
D Archard, Children: Rights and Childhood, Routledge, London,1993 at p. 50.
28
M Freeman, The Rights and Wrongs of Children, Frances Pinter, London, 1983, p. 55.
29
CB Little and A Rankin, ‘Why Do They Start It? Explaining Reported Early-Teen Sexual Activity’, Sociological Forum,
vol. 16 (4), 2001, p. 703.
30
M Cowburn and L Dominelli, ‘Masking hegemonic masculinity: reconstructing the paedophile as the dangerous stranger’,
British Journal of Social Work, vol. 31 (3), 2001, p. 399.
31
M Nash, Public Protection and the Criminal Justice Process, Oxford University Press, Oxford, 2006, p. 26-27.
32
D Garland, The Culture of Control, Oxford University Press, Oxford, 2001.
33
K Freund, G Heasman IG Racansky and G Clancy, ‘Paedophilia and heterosexuality vs homosexuality’, Journal of Sex
and Marital Therapy, vol. 10 (3), 1984, p. 193. Paedohebephilia is a separate condition indicating sexual interest in persons
with the body shape of an under-11 as well pubescent girls between 11 and 14 and pubescent boys between 11 and 16.
34
World Health Organisation, International Classification of Diseases and Related Health Problems, 10th Revision, World
Health Organisation, Geneva, 1992, at F65.4.
35
D Howitt, Paedophiles and Sexual Offences against Children, John Wiley & Sons, Chicester, 1995, p. 15.
36
F Suppe, ‘Classifying sexual disorders: The Diagnostic and Statistical Manual of the American Psychiatric Association’,
Journal of Homosexuality, vol. 9 (4), 1991, p. 9.
37
Cowburn and Dominelli (n 30)
38
S Levin and L Stava, ‘Personality Characteristics of sex offenders: A review’, Archives of Sexual Behaviour, vol. 16 (1),
1987, 57.
39
E Durkheim, The Elementary Forms of the Religious Life, George Allen and Unwin, London, 1915.
40
L Papadopoulos, Sexualisation of Young People Review, Home Office, London, 2010 available at
www.homeoffice.gov.uk/documents/Sexualisation-young-people.pdf last accessed 18 March 2010. It should be noted that
sexualisation in this report is taken to be the imposition of adult sexuality on young people before they are ready.
41
B Beadnell, MR Gillmore and M Hoppe et al, ‘Intrapersonal and interpersonal factors influencing adolescent’s decisions
about having sex: A test of sufficiency of the theory of planned behaviour’, Journal of Applied Psychology, vol. 37 (12),
2007, p 2840.
42
Beadnell et al (n 41) 2841.
43
Beadnell (n 41) 2862.
44
T Michels, RY Kropp, SL Eyre, BL Halpern-Felsher, ‘How do Young Adolescents Make Decisions Regarding Early
Sexual Activity’, Journal of Research on Adolescence, vol. 15 (4), 2005, p. 583 at 590.
45
Little and Rankin (n 29).
46
NP Ivchenkova, AV Efimova and OP Akkuzina, ‘Attitudes of Adolescents towards the Onset of Sexual Activity’,
Russian Education and Society, vol. 45 (3), 2003, p. 16 at 23.
47
Committee on Sexual Offences against Children and Youth, Sexual Offences against Children in Canada: Report of the
Committee on Sexual Offences Against Children and Youth [the Badgley Report], Supply and Services Canada, Ottawa,
1984.
48
D Archard, Sexual Consent, Westview Press, Oxford, 1998, p. 128.
49
Criminal Code s 150(1).
50
Criminal Code s 150(2).
51
Criminal Code s 150(2.1). Other defences include being married to the adolescent or cohabiting with them.
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Kieran Walsh is a qualified barrister and lecturer in the law faculties of both Griffith College Cork and University College
Cork, as well as acting as lecturer and assistant examiner for the Law Society of Ireland. He is currently pursing a PhD in
UCC examining the role of risk analysis and preventative measures in child protection. He has worked with Barnardos in
Ireland on the issue of amending the Irish constitution to provide for children’s rights and with the Irish Special Rapporteur
on Child Protection.