Age restrictions and the consent of minors

Great Debates
121

I suppose not - though the OP does mention my opposition to all age restrictions, not just this one. The age of sexual consent has always been a controversial issue… no doubt that’s why NYRA doesn’t dedicate a section of their web site to it as ASFAR did.

According to doreen, that defense is allowed for mentally incapacitated adults, so I’d also allow it for minors. I’m sure judges and juries would require pretty convincing proof, though.

Hmm, could it be because someone mistakenly thought the best way to protect minors from sexual abuse was to outlaw sexual contact with minors?

I agree that the law was intended to protect minors and has that effect. However, it also has the effect of restricting their freedom, to a degree that isn’t justified by the protection argument.

You haven’t provided any more evidence for this claim than the last 4 times you made it. Rape will still be illegal. You even admit that statutory rape laws are unnecessary to catch people who rape minors.

You have failed, again and again, to show that the rationale is being used properly. You simply assert that all minors are inherently immature, susceptible to coercion, irresponsible, etc.

You can repeat it all you want, you can use bold or ALL CAPS, but it won’t change the fact that there’s no evidence for your claim. You could just as easily and effectively make the very same claims about women, lawyers, or Germans.

At least you haven’t left anyone with that misconception about yours. Ciao.

A solid legal definition of informed consent would go a long way toward solving that problem. (As would a tape recorder.)

There would still be some uncertainty, but I don’t think it would be worse than the uncertainties built into many other laws - e.g., safe driving vs. reckless driving, smoking outside a restaurant vs. loitering. You can’t be entirely sure until you’re in front of a judge, but you know that certain acts are in violation and certain others are not, so you use careful judgment and stay toward the lawful end of the scale.

If a “bright line” is necessary, I’d choose puberty. You can tell whether someone has secondary sexual characteristics with a quick glance, and there certainly wouldn’t be any doubt by the time a sex act took place.

122

In this case would the burden of proof reside with the prosecutor or the defence?

Rephrase: will the accused have to prove that he had good reason to believe there were informed consent, or will the prosecutor have to prove that the accused did not have reason to believe there were informed consent?

I am also interested in your opinion on what a solid legal definition of informed consent could look like. No more than general characteristics needed.

123

I’m on the fence here. It’s pretty hard to prove that he had no reason to believe there was informed consent, unless there’s evidence of a struggle or third-party witnesses. On the other hand, I wouldn’t want to require everyone to prove that consent was given, because then the default verdict in every rape trial would be ‘guilty’ unless it could be proved otherwise. If the default verdict were different for minors and adults, we’d be almost back to square one.

I’d make the state show that the minor is incapable of giving informed consent first, then let the accused show a good reason to believe s/he did give informed consent, as a defense.

I’ll elaborate on my previous definition: informed consent to sex is consent given by someone who knows what sex is, what it can lead to, and whether s/he wants it.

What it is - Knows the obvious differences between men and women. Knows what counts as a sex act. Knows that holding hands and kissing are on a different level, legally and medically, than oral sex and penetration. Has a general awareness of sexual desire and the purpose of sex.

What it can lead to - Knows that pregnancy and disease are possible consequences of sex. Knows what methods can prevent pregnancy and disease, and what can/must be done in the event s/he becomes pregnant (or impregnates someone) or infected. Knows that relationships between people are complex and may be changed by sex or by the other consequences.

Whether s/he wants it - Knows the risks above, and consents to sex acts in light of that knowledge. Knows that consent is something given at his/her own discretion. Gives consent of his/her own free will and with a sound mind, not under the influence of drugs or coercion.

124

And if the state successfully shows that the minor is incapable of informed consent, and the accused successfully shows that he had a good reason to believe s/he did give informed consent?

This has to be communicated from the child to the adult before sexual contact?

125

I think the current drinking age of 21 is bullshit, since we send 18 year olds off to combat to die we should at least let them have a good time a bar, but this is an issue quite different from a blanket repeal of all age of consent laws.

As for the other issues, I wouldn’t want to see a 5 year old behind the wheel, that’s all I’m saying. :slight_smile:

126

Then he’s not guilty.

In order for the adult to know the consent is informed, yes. Ideally, it’d come up naturally and gradually during the course of their relationship, not all at once like an interrogation or a Miranda warning. I have no sympathy for a person who’s so eager to jump in bed with someone he just met that he can’t take the time to find out if she knows what she’s doing.

What about a 15 or 13 year old?

I don’t want to see 5 year olds driving either, because IMO no 5 year olds are capable of safely handling a car (or even reaching the pedals!). But an age restriction on driving is unnecessary for the very same reason: if 5 year olds can’t drive, they won’t be able to pass drivers’ tests, so they won’t be allowed on the road.

127

I can’t simply subscribe to the idea that a 10 year old can give meaningful consent to have sex with a 40 year old. I’m sure the North American Man Boy Love Association (NAMBLA) would be happy with it, but I wouldn’t.

128

Not quite what I asked.

129

So: The prosecution must show that the minor is incapable of giving informed consent. Here the burden of proof resides with the prosecution. The defence must show that the defendant had sound reason to believe that informed consent was given. The burden of proof resides with the defence.

If both sides are successful in this, the defendant is aquitted.

But that leaves us three potential situations unaccounted for:

  1. The prosecution successfully shows that the minor is incapable of informed consent, while the defence is unable to show that the defendant had a good reason to believe the minor did give informed consent.

  2. The prosecution is unable to show that the minor is incapable of informed consent, while the defence successfully shows that the defendant had a good reason to believe the minor did give informed consent.

  3. The prosecution is unable to show that the minor is incapable of informed consent, while the defence is unable to show that the defendant had a good reason to believe the minor did give informed consent.

Guilty / not guilty?

130

What kind of driving tests do they give where you live? Seriously. Adults who are too short to reach the pedals or see out of the windshield are still permitted to drive, although they may need such adjustments as built-up pedals or a booster on the seat. Around here a road test consists of driving for about ten minutes on streets with little traffic- left turn, right turn, u-turn , park. I hear that in some places, they’re given in empty parking lots. I don’t think its impossible for a five year old to pass such a road test- after all, a seven year old learned to fly a plane. I think it is impossible for a five year old, even one who successfully passes a road test to have the judgement needed to drive safely.

131

(My bolding)

Does this include / not include alcohol?

132

I thought my explanation was clear enough, but perhaps not.

1 - Guilty. The court presumes that the defendant knew the minor was incapable of giving informed consent, since the prosecution demonstrated that the minor is indeed incapable, and the defendant hasn’t shown that he believed otherwise.

2 and 3 - Not guilty. These situations are the same, because the defendant doesn’t have to prove his state of mind if the prosecution can’t show that the minor is incapable of informed consent. I suppose the prosecution could try to show that a reasonable person would have believed the minor was incapable (on grounds other than numeric age, obviously), and if successful, the defendant would have to prove the opposite.

My intent was to include it. Whether the word “drugs” in a legal document is interpreted to include alcohol is something for a lawyer to answer.

Sounds like a problem with the testing procedure. If the test (both the written test and the road test) isn’t intended to separate those who can safely drive from those who can’t, then what is the point of the test?

The word “judgment” is thrown around a lot, like “maturity”, but I’d like to clear it up. What judgment is required of a driver that isn’t (or can’t be) part of a written test or road test? What’s the basis for assuming that minors aren’t capable of that judgment?

133

Hm, I don’t understand how this is consistent with your earlier expressed views on drinking age, and youth rights. Am I mistaken in thinking that you said that a drinking age is really unnessecary?

Consent is still valid under the influence of alcohol for adults, since the adult is supposed to understand the consequences of drinking alcohol.

So why not for minors, given your libertarian philosophy? Why should the minor be allowed to drink alcohol, and allowed to choose to have sex, but not allowed to do these things at the same time?

134

The tests separate those who know the rules of the road and who physically know how to control a car from those who don’t. A five year old is physically capable of crosing the street alone, but for the most part ( and I’ve never known any exceptions), they can’t judge the speed of oncoming traffic with any accuracy (having much less experience at trying to judge it than a teenager would) , have no idea how to predict what other drivers will do, have never had to handle an unexpected emergency will run out into the street after a ball without looking for traffic and have no real understanding of the risk of being hit by a car, or even of the permanance of death. There might be a rare 5 year old who is exceptionally good at determining the speed of oncoming traffic, who understands the risks of an accident, who has handled the unexpected and who is no longer impulsive. But the tests won’t tell you which are which.

135

No, that’s what I said. But consent given under the influence of mind-altering drugs is not informed consent. You asked for a definition of informed consent in general, not “informed consent lite” for minors, and that’s what I gave - it applies to everyone, regardless of age.

Maybe in some areas, but not everywhere:

Then I suggest the tests should be changed. It’s as dangerous to assume that everyone over 16 has the necessary skills and judgment, as it is condescending to assume that everyone below 16 lacks them.

The test should be general enough that it can apply to everyone. Precisely what that test would entail is beyond the scope of this thread, IMO, but I see no reason that an appropriate test can’t be designed, with a false positive/negative rate no higher than the age-restricted tests we use today.

136

Hm you never adressed the issue. I’ll rephrase it slightly:

Is your position that minors are not allowed to consent under the influence of alcohol?

If so: Do you wan’t the same rules for all adults?

137

RandySpears:

My position is that minors giving consent under the influence should be treated the same as adults in the same situation.

I believe that in most parts of the U.S., including the examples above and my own state of Washington, one cannot give legal consent while intoxicated. That seems like a good rule to me, but I wouldn’t want to make it a special case for minors.

138

Hm.

Am I understanding you right here - are you saying that in most parts of the States it is impossible for an adult to give legal consent under the slightest influence of alcohol? Everyone who has a sexual contact with someone that has taken a beer is committing a rape felony?

Remember I am not from the US, and english is not my first language, so you’ll have to straighten me out on this one.

139

Well, “intoxicated” is different from having one beer; I assume it’s defined by blood alcohol content, or by the effect on one’s judgment or behavior.

But yes, someone who’s intoxicated can’t legally consent. In this state, I believe it’s rape in the second degree to have sex with someone who’s mentally incapacitated, which includes intoxication. I’ll post some definitions from the Revised Code of Washington later today.

140

So yes, one beer would prevent someone from giving legal consent - if she can convince a judge that she was so wasted after a single beer that she couldn’t understand the nature or consequences of the sex act.