Can Kids Consent?

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1. [...] assist in many of these paternalisms. Governments require school, and prohibit sex and certain hobbies below certain ages, and they ban some drugs for all ages. But it is curious [...]

   By Overcoming Bias : Why No Job Paternalism? February 4, 2011 at 9:45 pm

48 Comments

1. Michael Rosefield

   January 31, 2011 at 6:52 am | Reply

   Perhaps the issue is that, as a culture, we have fixated on sex yet made it an uncomfortable, almost hidden, topic. It’s almost like everyone’s dirty secret. It’s easy to become obsessed with it in unhealthy ways and get all kind of neuroses, especially if the process starts as a child.

   Maybe we protect kids because we know we’re more likely to cause them problems by introducing them to something with so much baggage that cannot be easily processed.

2. Lennart Regebro

   January 31, 2011 at 7:29 am | Reply

   This question gets obvious when you stop treating “kids” as one heterogen group. It’s pretty obvious that newborn babies can’t make decisions, at all. And it’s quite obvious that a five year old does not have the capacity to even remotely understand what getting married means.

   Therefore, children do not have the same rights to make their own decisions as adults have.

   The question therefore only boils down to when we should give them that right, and this of course does not need to be the same age for all decisions. In Sweden you have a sexual age of consent when you are 15, you can take a drivers license when you are 18, but you aren’t allowed to buy distilled spirits until you are 20. Other countries have other ages, and they are usually quite arbitrary and inconsistent, but they need to be there, because newborn babies have no possibility of understanding any sort of choices in life.

   With freedom comes responsibility, and the ability to take responsibility is not innate and does not appear at birth. Hence we do not give children the same responsibilities and freedoms as adults.

3. Hedonic Treader

   January 31, 2011 at 7:41 am | Reply

   Do teen sex choices limit distant future choices anywhere near as much as do marriage, kids, careers, etc.?

   STDs and teenage pregnancies come to mind.

   I’m not saying kids can resaonably consent; I’m just suggesting that standard theories offer little support for saying they can’t.

   Using terms like “kids” can be misleading since they lack precision. Are we talking about 7yo or 17yo? Depending on whether you start this discussion in Spain (aoc = 13) or California (aoc = 18), terms like “underage” take very different meanings and nuances. Whenever I see such discussions, they usually fail from the start because people use ambigous terms, or politically correct terms that pre-suppose a moral judgment or assumption of harm. Starting the discussion with precise, neutral language would make sense.

   In my view, one crucial point is the ability of law enforcement to distinguish between “true” consent and veiled, subtle forms of coercion in a legally robust manner. It seems to me that this is much harder to do when kids are involved than when adults are involved unless we talk about relatively clear situations and articulate tweens or teens who can make clear statements. The lines are certainly blurry but I would think it’s easier to establish the difference between subtle coercion and “true” consent in court when only adults are involved.

4. Simon Grey

   January 31, 2011 at 10:35 am | Reply

   I think the age of consent exists mostly as a workable rule of thumb. Yes, there are some people who will exceptionally mature at, say, the age of fourteen. There will also be incredibly immature 25-year-olds. Most people, though, will be able to make adult decisions by the age of eighteen. In short, the age of consent exists primarily as a convenient legal shortcut.

5. Robin Hanson

   January 31, 2011 at 10:47 am | Reply

   Michael, why don’t we protect adults from such baggage too?
   Lennart and Hedonic, I offered the concrete age of 13, if that helps to focus our discussion.
   Lennart, why not let kids choose their package of freedom and responsibility?
   Hedonic, if STD and pregnancy were the issue, we might legalize only safe sex. Why is true consent easier to determine for adults than kids?

   • Hedonic Treader

     January 31, 2011 at 11:21 am | Reply

     Hedonic, if STD and pregnancy were the issue, we might legalize only safe sex.

     Yes, possibly, and one would also have to restrict legality to the absense of all dependency relationships such as with teachers, coaches, parents, doctors and whatever other such authority roles may exist. The resulting subset of legal relationships would then be smaller, and a legally robust procedure to determine these conditions for each case could turn out to be a tedious task for law-enforcement and a painful intrusion into the private lives of everyone – unless it is undertaken only rarely, in which case the door is open for abuse and subtle coercion.

     Why is true consent easier to determine for adults than kids?

     Because adults are more articulate on average, and less easy to manipulate by other adults. This is not a given for each individual, but there’s definitely a correlation.

     Lennart and Hedonic, I offered the concrete age of 13, if that helps to focus our discussion.

     Ok, fine. I thought we were discussing the whole range, including smaller kids. I would legalize 13+ without much hesitation. I was molested by a 13yo when I was 5, and his motivation was clear and not externally driven by older people. Consequently, there is no doubt in my mind that pubescent adolescents can have articulate sexual interests. I don’t see a general argument to criminalize them as long as their realization is consensual and responsible. Nevertheless, I see teens that age (and older) do incredibly foolish things all the time, falsely assuming “true, neverending love” etc. Their pleasure and personal liberty are certainly worthwhile, but I’m sure there are certain types of collateral damage in practice.

     An alternative could be a kind of “driver’s licence for sex”. The age of consent could be quite high if younger teenagers (and maybe tweens) could obtain a kind of “maturity certificate” by proving the factual knowledge about STDs, contraception, questions of consent, and related risk factors.

     • Robin Hanson

       January 31, 2011 at 11:40 am |

       Poor and stupid people are also easier to manipulate. Should we presume they can’t consent too?

     • Doug S.

       January 31, 2011 at 12:03 pm |

       For a sufficient level of stupidity, we actually do presume they can’t consent.

     • Silas Barta

       January 31, 2011 at 12:55 pm |

       @Hedonic_Trader:

       Yes, possibly, and one would also have to restrict legality to the absense of all dependency relationships such as with teachers, coaches, parents, doctors and whatever other such authority roles may exist.

       I had actually been thinking about this recently: why stop there, and why only for teenagers? Why not prohibit *adults* from sexual or romantic relationships with policemen (yes, it would mainly be an issue for me, as authority makes them more attractive to women), legislators, presidents, kings, dictators, judges, bureaucrats with significant discretion, wealthy men who can easily afford a hired hit, members of tight-knit fraternity (who can thus use their groups solidarity to make reprisals with impunity), union leaders, top lawyers, etc etc etc?

       After all, if this authority over me limits my ability to truly consent to such a relationship … I guess we don’t want to take *too* seriously the claims of a power imbalance, now, do we?

     • Silas Barta

       January 31, 2011 at 12:56 pm |

       Oops! That should read “only be an issue for *men*”, not “for me”.

   • Hedonic Treader

     January 31, 2011 at 11:25 am | Reply

     *Screwed up my last comment’s quotations, sorry.

6. daedalus2u

   January 31, 2011 at 11:07 am | Reply

   The usual standard in law is the “reasonable person”. That means an adult who is not under duress. A child is inherently already under duress simply by virtue of being a child which makes him/her dependent on adults. Children are still undergoing neurodevelopment. They don’t have a fully formed “decision making cognitive structure”. Their cognitive and emotional structures are still developing, they are still plastic and are changed by the experiences the child has.

   Adults having sex with children is extremely damaging to children. Children do not have the emotional and cognitive structures to deal responsibly with issues such as sex. Having sex with an adult changes children in ways that are irreversible, and in ways that try to ensure the survival of the child.

   Children subjected to abuse become provocative. This is a protective mechanism. It allows the child to have the illusion that they are in control. It mitigates the damage of the abuse to some extent. It does not reverse or undo the damage, the behaviors adopted to mitigate the damage are part of the damage (probably the largest part). Children may even believe that they consented to the abuse, that they are responsible for the abuse. The delusion of consent and of responsibility is a survival and protective mechanism. It is yet another factor about being a child that can be (and is) exploited by adults.

   Why don’t we let children trade shares in their future earnings for candy? If children can consent to sex, they can also consent to sell sex in the future. A young enough girl might be persuaded to sell access to her body as an adult for candy, dolls or puppies.

   • Doug S.

     January 31, 2011 at 12:04 pm | Reply

     We don’t let adults sell sex either, at least not in most places in the United States.

7. Oliver Beatson

   January 31, 2011 at 11:18 am | Reply

   @Hedonic
   I can’t imagine anyone at a truly immature age wanting or soliciting penetrative sex, even if sexual arousal gives them pleasure. The point would be then whether or not adults in such a society stick to doing things that they know other people don’t want because they can get away with it.

   Perhaps you could have adults enter a voluntary ‘I will not irresponsibly have sex’ register. Most people would probably join, as not joining would be a bad signal. If a child reported that a member of the club had done something irresponsible, the adult could stand to lose a large amount of money, or even just the reputation that comes with having a negative status on the register.

   I suppose an interesting question to be answered around illegalising child sex acts would be, does this actually maximise liberty in the first place? How much does the illegalisation actually disincentivise doing things to children that they wouldn’t after full knowledge want done? (Although after achieving certain kinds of ‘full knowledge’ I’m sure they’d have some interesting scientific discoveries to announce, by which I mean, no action is optimal to one’s goals, some ‘uninformed’ choices, as all choices fundamentally are, lead us to bad decisions, some to very bad decisions, it’s all relativity around the lack of information.)

   Freedom of informed choice regarding a child’s ‘package’ of liberties and responsibilities seems a good idea, too. Maybe a test could be offered, or we could merely give the full liberties of children to their parents until they wish to pass them down.

   • LeBleu

     January 31, 2011 at 2:07 pm | Reply

     Got a weird error posting, so trying again. My apologies if this is a duplicate.

     I can’t imagine anyone at a truly immature age wanting or soliciting penetrative sex, even if sexual arousal gives them pleasure.

     I’m not sure how broadly you define “truly immature age”, but pre-pubescents may solicit it out of curiosity about the experience. Basically they same reason they “play doctor”, only taken a step further. (Assuming they have knowledge of such further steps.) Assuming the resulting experience gives them pleasure, they might even decide to repeat the activity.

     Another consideration is that, in the US under current law, there are cases where both parties can be considered non-consenting due to being under the legal age. This makes little sense to me. I can see where it may make sense to protect people where there really is a large difference between person A’s ability to manipulate and person B’s ability to defend their choices against manipulation. (The difference could be one of age, or as in Doug S.’s example, mental deficiency.) The question is just where those lines should be drawn. Note, this might imply that in a future with super-intelligences, there should be consent laws about what a super-intelligence can contract with an human-level intelligence without violating the lesser’s consent.

     Freedom of informed choice regarding a child’s ‘package’ of liberties and responsibilities seems a good idea, too. Maybe a test could be offered, or we could merely give the full liberties of children to their parents until they wish to pass them down.

     Freedom of informed choice is a nice idea, but if the idea is that people who don’t qualify don’t yet have the cognitive reasoning abilities necessary to responsibly use their liberty, then it does not seem like they would have the cognitive reasoning ability to decide whether they should have that liberty, as some above have implied.

     A test could be a good idea, if you can make it hard enough to cheat the test.

     Leaving it up to the discretion of the parents might be fine in average cases, but could lead to frightening results with abusive or overprotective parents. (Especially if this new way of transfer replaced the traditional 18 year barrier – imagine a 30 year old who’s parents haven’t yet passed down any liberties…)

     • Oliver Beatson

       February 1, 2011 at 10:58 am |

       I’m not sure how broadly you define “truly immature age”, but pre-pubescents may solicit it out of curiosity about the experience.

       By truly immature I meant, young enough to not have any sexual desires whatsoever. I think a lot of children have some level of sexuality even at prepubescent ages, although I think it’s dubious whether penetrative sex would appeal to them as a fun idea at that age. Obviously engaging in something that physically or psychologically damaged a child would be classed as rape. Evolutionarily it’s not impossible that giving children curiosity of experiences at young age is actually beneficial to their mental health, given that they actually do tend to have such curiosity and that prepubscent sexuality can’t directly lead to more children. It could be that young acts of sexuality is a thing that we should want to minimise, but I can see it as easily being a stubborn vestige of religious stigma that we’ve yet to grow out of.

       I can see where it may make sense to protect people where there really is a large difference between person A’s ability to manipulate and person B’s ability to defend their choices against manipulation.

       The problem is deciding who has the right information to make informed choices regarding who has the right information to make informed choices. Decentralising this seems at least safer than having some less-than-everyone group of people decide universal ages. I think handing liberties to parents is the most consistent idea. It ports well if you know what I mean, and gives more sovereignty to the idea of ownership… you created this out of atoms, it’s yours. But also societal pressure to not be evil with one’s sentient spawn would immediately give way to free market-based assurances that most people can’t have the possibility to be, I believe. Same thing with ownership of pets only it’s slightly less frowned upon to be mean to them. It’s just a case of imagining what we can design; but if the moral majority exists we don’t need centralised rules, the market has its own ways to enforce it.

       Freedom of informed choice is a nice idea, but if the idea is that people who don’t qualify don’t yet have the cognitive reasoning abilities necessary to responsibly use their liberty, then it does not seem like they would have the cognitive reasoning ability to decide whether they should have that liberty, as some above have implied.

       So the problem there is again finding out who we should worry about giving their liberties to.

       Leaving it up to the discretion of the parents might be fine in average cases, but could lead to frightening results with abusive or overprotective parents.

       Utilise some of what I wrote above, I imagine there’d be a large societal demand for boycotts of trade by various types of companies, including for example hospitals, against prospective parents who refuse to precommit to certain conditions. A free market in ages-of-liberty-inheritance, is functionally what I’m imagining would arise. It could easily become standard practice in a hospital that a condition of trade would be the signing of an ‘I promise I’ll give my children their liberties by a decent age unless an arbitrator rules there to be extenuating circumstances’ contract.

8. jseliger

   January 31, 2011 at 11:50 am | Reply

   Yes kids can make mistakes and we might want to limit their ability to make mistakes. But adults can make lots of mistakes too; why treat kids so differently?

   I think the intellectual answer is that there isn’t much, at least once “kids” are teenagers, but the pragmatic / real answer is built-in intergenerational conflict. The “built-in conflict” idea comes partially from Melvin Konner’s The Evolution of Childhood, although he’s mostly dealing with sexual/genetic conflicts in that. In modern society, parents know they’ll bear much of the cost for their teenagers’ misdeeds, in emotional, financial, and social terms, so they encourage laws that restrict teenage autonomy.

   Furthermore, a lot of parents don’t think of their teenage kids as adults, as Paul Graham says in “Lies We Tell Kids:”

   What really bothers parents about their teenage kids having sex? Their dislike of the idea is so visceral it’s probably inborn. But if it’s inborn it should be universal, and there are plenty of societies where parents don’t mind if their teenage kids have sex—indeed, where it’s normal for 14 year olds to become mothers. So what’s going on? There does seem to be a universal taboo against sex with prepubescent children. One can imagine evolutionary reasons for that. And I think this is the main reason parents in industrialized societies dislike teenage kids having sex. They still think of them as children, even though biologically they’re not, so the taboo against child sex still has force.

   So we treat “kids” differently because 1) parents often bear the costs of their mistakes and 2) people don’t think of teenagers as adults.

9. Sister Y

   January 31, 2011 at 12:06 pm | Reply

   Excellent topic.

   Children essentially have the legal status of slaves – just with welfare laws protecting them from “serious” abuse and neglect (as with animals). They are not only excluded from making decisions about their bodies, but from any market participation at all (legally – they can’t form binding contracts).

   Imagine if someone could tell you when and what to eat, when to sleep, where to go, what to study, what hours to work, what goals to pursue, what religious beliefs to appear to hold, and what medical attention (if any) to receive. Imagine that person has NO INCENTIVE, aside from the caprices of personal feeling, to respect your values and desires.

   Imagine have no legal recognition of your private being at all.

   Childhood is a serious problem. Adults having sex with children is not so great. But preventing adults from exploiting children by making children slaves is . . . counterintuitive.

10. Philo

    January 31, 2011 at 12:10 pm | Reply

    _Consent_ is a legal matter, concerning civil awards for damages and criminal punishments. In the case of non-coercive sex, we are to imagine an offer of sexual intercourse made by X to Y, Y’s (apparent) acceptance, and a subsequent sex act between X and Y (one that satisfies the description in the offer, so there is no question of fraud). The issue is, under what circumstances is X legally in the clear–subject neither to criminal penalties nor to liability for damages? In particular, what are the criteria such that Y’s meeting them would indemnify X, legally? This question is only loosely related to the question whether X acted wrongly (in making the offer and, upon the acceptance, in following through with the sex act). Your discussion seemed more focused on the morality–indeed, on the _rationality_–of the offer-cum-sex-act than on what the law should be.

    And some of your remarks seemed dubious. “When someone makes you an offer, it is reasonable to expect them to reveal possible downsides, and even to help you to hear from folks who recommend against accepting their offer.” But why do you need such help? Before accepting an offer, should you help the offerer hear from folks who recommend that he not make the offer? The demand for “help” seems to presuppose a lack of competence on the part of the party receiving the offer. Offering help is often a nice thing to do, but seldom a legal requirement. “If your choice has a big effect on a third party (i.e., parents who’d fund a pregnancy), it can be reasonable to seek their approval.” Maybe, maybe not; it depends on the kind of effect. A company need not seek the approval of a competitor before introducing a new product, even though the introduction will have a big effect on the competitor’s profitability. In any case, the issue of what is “reasonable” takes us out of the legal context that is (or at least that I consider to be) appropriate to the discussion. “And if your choice isn’t very time critical, it is also reasonable to have some time to think it over.“ Again, _unreasonable_ ≠ _illegal_. Should the law provide that some acceptances of offers are invalid until a certain amount of time has passed? That’s a tough question, given the wide variety of situations in which offers are made. The hard-core libertarian answer is a simple negative, but it seems something more nuanced is called for.

    Already for adults it is unclear what should count, legally, as “consent”; the issues concerning children seem even more difficult (though perhaps that impression vanishes when we recall that some adults are incompetent or only semi-competent). It is worth considering both why we treat children legally as we do, and how ideally we ought to treat them. I would expect both answers to be bafflingly complex.

11. Stass

    January 31, 2011 at 12:45 pm | Reply

    14 years mother is definitely bad thing. However there is doubt who is responsible for this kind of consequences. I mean in countries parents drink or have to work 12-14h a day the chance (risk) that child is going to have sex in 13 years old is higher. Therefore the legislation protects and keeps adults from using kids. Hence parents are the main people who should take responsibility to protect and keep safe their kids.

    Other thing that we forgot is that 21th century is time of information. Every kid have computers and access to the Internet.Due to awareness of word SEX and consequences they are not afraid to make it even earlier than their parents. There is no limitation for purchasing condoms in shops. Every 13 years old kid and go and buy pack of condoms. I want to say information stimulate as for action, example all exploration ( Columbus, he knew that there is something, so he risk to explore it). The questions is even if they have information they need SEX partner. Tell me when was the first time you start dating, and check what is situation now is schools. I was shock by how fast in Denmark kids start dating. I made comparison with Latvia.

    • Hedonic Treader

      January 31, 2011 at 1:24 pm | Reply

      I’m pretty convinced that easy access to information about sex-related topics is good for adolescents, not bad. At least on average. I retrospect, I wish I had had internet access like today at age 12. There are certain risks (cyberbullying etc.), but the benefits are probably much greater. I think it’s just awesome that kids can enter “hot topic words” into wikipedia and gain access to humanity’s full knowledge about them (give or take).

12. Will

    January 31, 2011 at 2:04 pm | Reply

    i think that children are persons and should be recognized as such. from there, the problem is consent. what constitutes consent?

13. candy

    January 31, 2011 at 2:04 pm | Reply

    No topic that I know of is as prone to causing moral panic as child sexuality. Even media that depicts child sexuality without any actual children involved gets an indignant response.
    Laws and rules about this topic are, IMO, more for the benefit of adults than children. People are very uncomfortable with the thought of their children or young relatives being sexual creatures.
    There’s a similar moral panic about exposing children to “adult” things in movies, games, music, etc. As if a 13 year old is completely innocent to the ideas of sex, drugs or violence…

14. rapscallion

    January 31, 2011 at 4:04 pm | Reply

    Does anyone out there wish that they’d been able to have sex with the adults who would have wanted to have sex with them they were prepubescents? Anyone?…Regardless of how you want to define, “consent,” I think the paternalistic rationale behind not allowing kids to have sexual relations is a sound one.

    Admittedly, exactly where to draw the age-of-consent line is a pretty vexing issue, but that it should be postpuberty is clear.

15. Psychohistorian

    January 31, 2011 at 4:14 pm | Reply

    Basically, because the general, non-teen public views teen sex as wholly negative, and teens can’t vote, there is zero incentive for legislators to do anything but decrease the amount of teen sex. One way to do that is through statutory rape laws.

    13 year olds can’t consent because people who can vote don’t want them having sex. Indeed, in California, two 17 year olds having sex are both guilty of a crime. Because people don’t actually care if teenagers are mature enough to consent, the law is not motivated by this question.

    There’s simply a presumption that sex is a Big Deal and that teenagers will be harmed if they do it. What’s funny is that this is largely self fulfilling – because society makes sex a Big Deal, people develop rather serious issues surrounding it. In this case, society is so concerned about the “children” who will consent and later regret it that it has no concern for those who consent and are quite happy with their choice. On the other hand, prosecuting kids for having sex with each other is pretty uncommon, so this policy may work out pretty efficiently in the real world.

16. despair

    January 31, 2011 at 4:58 pm | Reply

    The problem is that as a society we’ve defined deviance up and down. On the one hand, we try to restrict sexual relations between elderly men and teenage women that were common and accepted for most of human history, while removing barriers to shame in limiting sexual behavior. Consider that movies and tv and common culture can promote sexualization of children and there is little to be done legally to restrict 15 year olds from sleeping together (whether hetero or homo). There is even very little support for shaming mechanisms to ostracize 14 year olds who choose to have kids. Conversely, the punishments for 22 yr old guys approaching 16 yr old girls are often outrageously disproportionate. And even 30 year olds legally marrying 18 yr olds is often considered “creepy” (a notion which would seem perfectly normal to most of the world’s non Europeanized population). This is such an inversion of human cultural and biological imperatives that blank slate weirdness doesn’t even begin to cover the ways in which this is artificial. I suspect it is also unsustainable in the long run. But hell, the last hundred years has been a testing bed for stupid, counter evolutionary social ideas that have ended in disruption, disappointment, and misery. We’ll see how this one plays out. And in my view, this taboo, DOESN’T match the farmer forager story that Robin often tries to sell.

17. Anonymous

    January 31, 2011 at 6:12 pm | Reply

    Thanks Robin for posting this.

    There are people like the infamous cryomedical blogger ‘melmax’ who focus on Max’s original words regarding children in the interest of promoting Max’s mishaps and more controversial attributes rather than discussing this topic as the complex, and not straightforward issue that it is.

18. JasonSL

    January 31, 2011 at 6:40 pm | Reply

    Psychohistorian: There’s simply a presumption that sex is a Big Deal and that teenagers will be harmed if they do it. What’s funny is that this is largely self fulfilling – because society makes sex a Big Deal, people develop rather serious issues surrounding it.

    Exactly. It’s a practice of the Sambia people of New Guinea for pre-coming-of-age boys to fellate men in their community, as a means of imbibing their manliness. This doesn’t cause the boys to develop the mental problems that it would in the West, and, indeed, even a Western child who is induced by whatever means to perform fellatio on an adult ought to date their injury to when they lose their innocence and learn that this is shameful and abusive (assuming no STDs are transmitted) rather than to the act itself.

    That said, we can’t deny the cultural reality here in the West, and say that our laws ought to pretend we have a less neurotic view of childhood sexuality.

19. JasonSL

    January 31, 2011 at 6:46 pm | Reply

    Incidentally, my recollection is that studies that have looked at post-pubescent minor boys in the U.S. who have had sexual relations with adult women found no difference in mental health outcomes between these boys and boys who had no pre-age-of-majority sexual relations with adult women. Since there are equal protection problems with saying that post-pubescent minor boys can consent to sex with adult women, but not with adult men, and that post-pubescent minor girls can’t consent to sex with anyone, it seems that we’re putting the cart before the horse if we try to decide what kinds of sexual encounters involving minors are no less harmful than sexual encounters between adults and allow minors to give consent in those situations. Really what we ought to do is the far more difficult work of reforming the culture, which, indirectly, posts and discussions like this are doing.

20. Buck Farmer

    January 31, 2011 at 8:02 pm | Reply

    Here’s an expansion of Robin’s subspecies argument…

    1. Beginning sex, marriage, childrearing after you’re 20 is an evolutionarily novel phenomenon. In earlier societies/cultures, you start childbearing when you can start childbearing (Romeo and Juliet, etc.)

    2. Regardless of evolutionary optimality, early childrearing is no longer optimal from a status/wealth competition standpoint in our current society.

    Ergo, children/young-adults who have not yet been properly conditioned to understand the novel regime will mistakenly begin childbearing at the historically evolutionarily optimal time and thus reduce the value of their parents’ investment in them.

    A mere conjecture.

21. agnostic

    January 31, 2011 at 9:31 pm | Reply

    We either support or decry teenage sex depending on what the teenagers themselves are doing. When they’re getting wilder, we want to be part of the excitement (vicariously anyway) and defend their liberation. When they’re getting tamer, we still want to jump on the bandwagon and defend their fogey-fication.

    Youth sexual activity in general, and especially the more extreme forms like having had 4+ partners by high school, having sex before 13, getting pregnant or having a kid, etc., peaked in the late ’80s or early ’90s and has been plummeting since. (See the Youth Risk Behavior Survey online, and pregnancy / birth data by googling.)

    So your friend’s initial championing of minor consent in 1983 and post-1990 backpedaling fits that pattern.

22. ThreeTimesFast

    January 31, 2011 at 10:46 pm | Reply

    This is a really interesting argument, and I think it brings up an even better point – why do we still persist on having such absurdly high age requirements to view pornography?

    We are all aware that adolescents explore their sexuality, masturbate, and even have sex, and yet we insist on denying them access to porn until they become legal adults. This leads to some really strange conclusions – it is legal for adolescents in many places to have sex with another but not to view other people having sex, while in some places it is legal to have sex with a 16- or 17-year-old but not to show them pornography.

    What is the harm that it could cause? It could mislead inexperienced adolescents about sex, but the best alternative to that seems to be to allow better sex education to debunk those claims. On the other hand, porn also helps to facilitate a more mature appreciation of sex: society tries to protect adolescents from the emotional consequences of sex by telling them only to have sex with those they love while accidentally reinforcing that very belief by making those same adolescents believe that if someone has sex with them they must love them. Porn presents an alternate view – sometimes, people have sex just for fun without any great emotional ramifications. Porn also allows them a safe place to explore their sexualities without having to deal with the possible consequenes of STDs and pregnancy.

    There’s this idea that if children experience sex they will be shocked and damaged by it, and while this may be true regarding sexual abuse, I’m not entirely sure how a twelve-year-old looking at a picture of a naked person is supposed to hurt them. At worst, they’ll find it yukky and click out of it. (I suppose if they had been abused it could be triggery, but children aren’t the only people who are able to have triggery sexual experiences.)

    This is especially strange because of how little effect these laws now have given the internet and all. Any child without a child protecting program on their computer (or any child with one and a good idea how to turn it off) can easily find access to pornography. And yet how often are people actually prosecuted for this? We as a society seem increasingly frantic about stopping this happening despite the fact that we clearly have little idea how to.

    Really, a lot of it seems to be more because of this moral panic that it will lead to children having sex more (despite that, as I said above, it could lead to the exact opposite) or parents very uncomfortable with the idea of children being sexual beings at all and trying to vainly deny that they are despite all evidence to the contrary.

23. JL

    February 1, 2011 at 4:15 am | Reply

    Robin, I think you are a little bit too biased towards near/far and status explanations

    The two separate questions you ask are:
    1) Why do we limit the choices of kids?
    2) Can kids consent?

    The answer to the first is trivial: we limit their choices, because we (the lawmakers and the courts) have decided they can’t consent (specifically, 13 year olds can’t consent to sex with adults).
    It has nothing to do with near/far or status, the actual reasoning is thoroughly documented in the legal literature and you have briefly touched some of them.

    You may suspect that this reasoning is mere rationalizing and that the real reasons are near/far and status, but I find that difficult to accept.

    Your attempts to rebut (or question) the usually given reasons seem to fail:

    1) Kids don’t fully understand the implications of their actions.

    Robin: Neither do adults

    Response: True, but they do (on average) have a better understanding and they have had more time to learn.
    In an ideal society people would be able to perform an action if and only if they fully understood the implications of that action.
    But in the real world we need to rely on imperfect approximations of this ideal.

    2) Limiting the ability to make mistakes

    Robin: Adults also make mistakes.

    Response: Yes, but adults better understand the risks that lead to mistakes; adults are more capable of carrying the consequences of their mistakes without burdening society; and preventing adults from making mistakes is difficult and costly (see prohibition, war on drugs).

    3) Thirteen year olds can’t consent to sex with adults

    Robin: I can not see why that is so, but I also can’t prove it isn’t so.

    Response A: If we can not know one way or the other then we will need to make a wager. In the form of Pascal’s wager we can argue that we should assume they can’t consent, since preventing rape has higher utility than that lost by repressing sex between minors and adults.

    Response B: Lawmakers and courts have apparently decided that thirteen year olds can’t consent to sex with adults. To change this status quo you will need to convincingly argue that they are wrong.

    Response C would be to argue that thirteen year olds can’t consent to sex with adults, which I won’t do here in the interest of time.

    • PJF

      February 1, 2011 at 5:25 am | Reply

      since preventing rape has higher utility than that lost by repressing sex between minors and adults.

      Just curious, how many acts of consensual sex between adults would you be willing to eliminate in order to prevent one instance of rape?

24. Aris Katsaris

    February 1, 2011 at 10:50 am | Reply

    The Near and Far model applied *again*? Really?? Are you frigging kidding us?

    A largely good article, ruined by that totally unjustified last paragraph, which makes you look as if you have a hammer you really really like and so all problems become nails.

    Start overcoming *your* bias in favour of that model, mate.

    We don’t trust kids with their own choices, because we are designed to want to protect them instead. Because societies that didn’t protect their kids, didn’t survive. This has nothing to do with “near” or “far”. It’s simple natural selection. We’re designed to want to protect our offspring, more than we’re designed to respect their choices.

    Simple as that.

25. daedalus2u

    February 1, 2011 at 12:34 pm | Reply

    Post pubescent minor boys who have sex with adult women are injured. There are degrees, the boys involved might not feel they have been injured, they may become attached to the adult women they have had sex with (some may even become addicted and pathologically attached). The original post was about someone who wrote (at age 18) that people that age and younger are ready to consent to sex, now many years later he says his earlier self was completely wrong.

    A boy who is abused by an adult woman and grows up to become a man who is a player might not feel that he has been injured, but if he hadn’t been abused, he might have grown up to have long term relationships, fall in love, have a family, been more successful, have better mental health. His sexual and emotional development might not have been stunted by early sex with an adult.

    From the comments, I think that few people here have experience with the consequences of child sexual abuse.

    Trying to measure these harms is quite difficult, and necessitates a value judgment. Many victims of childhood sexual abuse feel quite injured and have life-long difficulties as a consequence. Many times those harms do not show up until much later, sometimes not until the victim has children of his/her own of the age he/she was at the time of the victimization.

    Some of the people who are harmed are greatly harmed. Some of the victims of the Catholic clergy sex abuse committed suicide. How many suicides are acceptable for children to be allowed to have sex with adults?

    • Hedonic Treader

      February 1, 2011 at 1:31 pm | Reply

      Post pubescent minor boys who have sex with adult women are injured.

      Empirical evidence?

      Trying to measure these harms is quite difficult, and necessitates a value judgment.

      Confirmation bias?

      A boy who is abused by an adult woman and grows up to become a man who is a player might not feel that he has been injured, but if he hadn’t been abused, he might have grown up to have long term relationships, fall in love, have a family, been more successful, have better mental health.

      Let’s try to avoid tautological definitions of “harm” with regards to a normative relationship model that is not universally shared and not necessarily indicative of subjective quality of life. The reasonable step here would be to actually compare factors such as career success, mental health, or family status with control groups that had no such sexual encounters. Without robust empirical data, these claims are pointless conjecture.

      Many victims of childhood sexual abuse feel quite injured and have life-long difficulties as a consequence… How many suicides are acceptable for children to be allowed to have sex with adults?

      Statistical decorrelations of age, violence, coercion, dependency, social stigma? Comparisons with suicide rates of non-sexualized control groups?

      This is what I meant when I wrote most of these debates fail from the outset because of pre-supporting judgments and assumptions of harm independent of any empirical assessment. Of course, you’re right to point out that harm can be hard to empirically test. But then what’s the value of the discusssion? A proponent of teenage liberty may simply claim the opposite of what you claim, and then you can run in rhetorical circles.

    • Sister Y

      February 1, 2011 at 1:37 pm | Reply

      Your comments relating to future social consequences of people with early sexual debuts seem to me to relate to an old post of Robin’s, “Overconfidence & Paternalism.”

      When we “protect” children, we prevent them from having access to information and experiences. We may justify doing so in order to promote a particular notion of the good life (“have long term relationships, fall in love, have a family, been more successful, have better mental health” in your words).

      We lie to them and lock them up for their own good. But really, it’s for our own good – our conception of the good. All your examples are euphemisms for pursuing a particular kind of life that may, in fact, be very immoral by some standards. Mutual sexuality output contracts, reproduction, achieving high social status, and behaving in a predictable manner do not seem to me to be goals so universally honorable that they justify denying 13-18-year-olds control of their own bodies.

26. daedalus2u

    February 1, 2011 at 5:31 pm | Reply

    Many individuals who were sexually abused do consider that they have been grievously injured, and many individuals have won large monetary settlements to compensate them for those injuries after litigating those cases in court. Do you dispute that? That does demonstrate serious injury, so seriously that damages were awarded by a court.

    Do you have any data to support the notion that early sex with adults is not harmful to children? There happens to be no ethical way to acquire such data because the consensus among experts is that it is incredibly harmful and so no such research would ever be allowed.

    Because many children have been grievously injured, the default should be that any child may be grievously injured, and that society has the right and obligation to protect potentially vulnerable individuals from exploitation that may grievously harm them.

    I don’t think it is ok to lie to children about anything, including sex.

    I don’t think anyone is suggesting that children be criminally prosecuted for engaging in sex with adults. It is the adults who would be prosecuted. The children are victims. The children are free to engage in sex with adults. The children won’t be punished, it is the adults who will be punished and go to jail. Legalizing children having sex with adults doesn’t give children any more rights than they have now, it only gives adults the right to sexually exploit them with no repercussions.

    • Hedonic Treader

      February 1, 2011 at 5:50 pm | Reply

      Just some quick points to end my participation in the discussion:

      Do you have any data to support the notion that early sex with adults is not harmful to children?

      Notice how you now refer to “children” where you earlier referred to “Post pubescent minor boys” – I already mentioned that I don’t think there can be a meaningful discussion on such a “hot topic” without the necessary precision. To answer your question: it makes general sense to me that those who would criminalize private behavior can be expected to carry the burden of proof, even though in this case status quo bias may make this counterintuitive. I’m not an expert on developmental psychology, but I would be surprised if empirical science could reliably support the hypothesis “Post pubescent minor boys who have sex with adult women are injured.”

      There happens to be no ethical way to acquire such data because the consensus among experts is that it is incredibly harmful and so no such research would ever be allowed.

      Empirical science can be done without deliberate experimentation. Gathering statistical data on existing cases and identifying correlations is one obvious way. The law is not always abided by, and there are countries with differing age of consent limits. Your hypothesis can certainly be tested using this data.

    • scott

      February 1, 2011 at 8:13 pm | Reply

      Out of how many individuals who have had sex as a minor and don’t consider themselves sexually abused or greviously injured? If the fraction is small, then your second paragraph looks like “there is expert consensus that harmful things are harmful” and says nothing about whether this thing is harmful or not.

      Abuse can happen in any sexual relationship. I don’t think the rate is higher in post-pubescent, below-age-of-consent sexual relationships. Of course, if the only cases your experts are looking at are cases of sexual abuse in below-age-of-consent sexual relationships, it’s no wonder they think it’s a bad thing. Experts who only look at cases of rape would probably think sex is a bad thing.

27. daedalus2u

    February 1, 2011 at 7:42 pm | Reply

    If you would weigh in on such “hot topics”, perhaps you should acquire some expertise in them. To those of us who do know something about it, it is not at all a close call.

    That non-experts feel something is counterintuitive tells us something about the intuition of non-experts.

    http://www.ncbi.nlm.nih.gov/pubmed/11825135

    http://www.ncbi.nlm.nih.gov/pubmed/15894146

    • Hedonic Treader

      February 2, 2011 at 3:38 am | Reply

      Thanks for the links. I won’t purchase the full articles but it is noteworthy the abstracts make no statement about the age ranges of the examined minors, nor about decorrelating factors such as coercion, consent, incest etc. At least they mention controlling for family background using twin studies, that’s a good start. OTOH, they start with “Childhood sexual abuse (CSA) is a worldwide problem” which is like saying “Rape is a worldwide problem” when examining the long-term effect of sex between adults. Duh.

      Do these studies even examine the questions we raised? I can’t tell from the abstracts.

    • daedalus2u

      February 2, 2011 at 9:01 am | Reply

      Both articles are available for free download, one from the publisher. If you search the title for the other one into google scholar it will show up.

      What the data shows is many similarities between the adult lives of men and women associated with the effects of childhood sexual abuse. Men who were abused by a female perpetrator have rates of depression twice that of men who were not abuse. Suicide attempts are about twice as high too.

      The data is sparse, but it shows real harm. Maybe not everyone is harmed, but anything that doubles the suicide attempt rate, or doubles the rate of depression is real harm.

      • Robin Hanson

        February 2, 2011 at 10:54 am |

        Would you be willing to prevent kids from choose a career (e.g., acting or music), if that could be shown to double the rate of later depression as well? Top ten depressed careers here.

      • daedalus2u

        February 2, 2011 at 8:26 pm |

        Interesting list. Those jobs seem to be essential services that people want to do because it helps other people, or creates something and not “just a job” that makes money. The depression seems to come from the stress of not having the resources to do their job properly and getting burned out.

        They didn’t list the job that has the highest suicide rate, that would be ex-soldier.

        http://www.cbsnews.com/stories/2010/01/11/national/main6083072.shtml

        Interesting that 20% of US suicides are veterans. That is about 6,000 per year. The deaths from suicide may well exceed combat deaths by a large amount, even from Vietnam.

        I happen to know a lot about the physiology of depression (this is an enormous understatement). The major cause is stress, usually psychosocial stress but metabolic stress can cause it too (that is what postpartum depression comes from). Effectively dealing with that stress can be difficult, especially when many are simply unwilling to recognize that the stress exists at all (ignoring bullying for example).

        It isn’t the job that causes the stress and the depression (except maybe for being a soldier in a war zone), it is the work environment. A bad work environment, one with bullying, harassment, exploitation, low pay and lots of psychosocial stress is more conducive to depression than a non-stressful work environment. There are multiple effective treatments for depression. I think that if a job does cause depression, that the job should also pay enough to get effective treatment to prevent and/or treat that depression.

        I think requiring work environments to be such that they don’t foster depression in workers would be a better solution to depression among workers than having fewer workers in those jobs. For many of the jobs in the list, fewer workers will result in greater stress on the remaining workers, for example if there were fewer teachers, health care workers, social workers, the need for those services doesn’t go down, the remaining workers have to work that much harder.

        The for-profit business system isn’t set up to have non-exploitive working conditions except through regulation. The cheapest source of labor is people who want to do the work and get satisfaction out of doing a good job. The satisfaction of doing the job well partially substitutes in their utility function for wages. The satisfaction can be thought of as “good will”. That “good will” can be liquidated by compelling more work under more difficult conditions. The most competitive CEO will hire workers with a lot of “good will” and then liquidate that “good will” by exploiting them and then replacing them when their “good will” has been liquidated.

        If companies did have to pay for depression treatments for their workers, I think they would find that prevention via good working conditions is much cheaper than treatment. Companies good to work for already know that. That is something that makes good companies take-over targets by those willing to liquidate the “good will” that the company has built up, such as what happened to Simmons.

        http://www.nytimes.com/2009/10/05/business/economy/05simmons.html

28. Michael Keenan

    February 12, 2011 at 7:03 pm | Reply

    I just read about a case where a UK court banned a retarded man from having sex because he didn’t understand it sufficiently to consent. The article noted:

    Mr Justice Mostyn highlighted the fact that the court cannot prevent people from merely making “unwise” decisions, and that a simple test can be carried out to see if a person is capable of consenting to sex based on the act itself rather than the proposed partner.

    There’s a simple test for ability to consent? At last, I thought, we figured out how to measure that. Hanson will be pleased to know that there are now analytical tools available to measure consent-ability. So I followed the link to the court order to find out what this test is. There’s discussion of various tests and standards, and the judge ultimately concludes:

    I therefore conclude that the capacity to consent to sex remains act-specific and requires an understanding and awareness of:
    * The mechanics of the act
    * That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
    * That sex between a man and a woman may result in the woman becoming pregnant

    So, we of course have analytical tools for determining the ability to consent. It’s just that we’re not using them for determining the age of consent. We’re deciding that with some other process.

    I wonder whether it might be feasible to offer a compromise between the people who like a high age of consent, and those who don’t see a need for that. You could have the age of consent as a default for everyone, but those under that age could opt to take the consent test and get a sex license proving they have the ability to consent.

29. Ban

    April 7, 2011 at 8:37 am | Reply

    You are very correct Hanson, we never fully understand the full consequences of our actions. The important thing here is to make sure that one party must not try to trick the other.

    There is a demonization of sex by media. And they use pseudosciences to “prove” that sex is harmful Social and Behavioral sciences are not science. Just hear Richard Feynman for that matter.