A note about sajrt.blogspot.com, Minnesota Sex Offender Program (MSOP), and Robin Wilson

As many sajrt.blogspot.com readers may be aware, class action lawsuit proceedings are ongoing regarding Minnesota's civil commitment program, known as the Minnesota Sex Offender Program (or MSOP). In the past, sajrt.blogspot.com has included posts about both sexual offender civil commitment, generally, and the MSOP, specifically.

Civil proceedings in Minnesota continue to evolve, and Federal Judge Donovan Frank recently announced the appointment of four sexual offender treatment experts retained to guide the court in the weeks and months ahead. The experts are Naomi Freeman, Deb McCulloch, Mike Miner, and Robin Wilson. 

As our readers are aware, Robin Wilson is the Chief Blogger for sajrt.blogspot.com. Given his new role, and in the interest of limiting potential conflict of interest concerns, no policy-related posts will be made on this site regarding sexual offender civil commitment or the MSOP until such time as Robin's retainer to the court has been terminated. Posts on these topics of a more purely research nature will be managed by SAJRT Editor-in-Chief Dr. James Cantor.

Age of Consent in the UK: A guest post by Dr. Kieran McCartan

The issue of what the age of consent to sexual activity should be was recently raised in the UK. On this occasion it was not in the context of an offence, nor was it in the context of punishment. Rather, it was raised in the context of prevention, as well as public health. It was suggested that the age of consent in the UK (which is 16) should be reviewed, reportedly in an attempt to prevent teenage pregnancy, poor and problematic teenage sexual relationships, and to allow for appropriate and realistic engagement between practitioners and children.

Ideas around consent, puberty, sexual engagement, child protection, and public health are at the heart of work with persons who have sexually offended. Indeed, we only have to look at James Cantor’s talk at the November 2013 annual conference of the Association for the Treatment of Sexual Abusers. So, when Professor John Ashton called for a national debate on lowering the age of consent from 16, it was clear that we really need to consider the implications of this proposal. Professor Ashton suggested that lowering the age of consent would help better educate children about engagement in sexual behaviour and, therefore, protect them more fully. He cited as examples of best practice other European countries with a lower consent age, indicating that these countries generally have lower teenage pregnancy rates, lower infant mortality, and lower levels of sexual transmitted diseases. Professor Ashton’s suggestion was dismissed out of hand by UK Prime Minister David Cameron as damaging, irresponsible, and insulting.

Age of Consent varies internationally, and sometimes nationally, as demonstrated in the following table:

Regardless of your opinion as to what the age of consent should be, there are real issues relating to sexual abuse and child protection caught up in this debate, including:

• What impact would a change in age of consent have on children below the current age of consent who are having sexual relations? It would hopefully open up possibilities for more education on sex, a greater discussion of appropriate age related sexual interactions; open up more possibilities for greater sexual health help (e.g., condoms, protection, counselling, etc.), potentially reduced use of the internet for sexual advice and, perhaps, less use of pornography. However there is a counter-agreement that lower the age of consent will lead to more teenage/adolescent sexual behaviour, increased victimisation, and a weakening of the state’s ability to prosecute inappropriate offenders as well as offences.
• Experimentation vs. abuse? Often the reason why certain persons engage in certain activities is not as simple as simply considering issues of age. For example, we may need to distinguish between children and childlike behaviour. In the cases of both perpetrators and victims learning difficulties (e.g., Intellectual Disability) and/or mental illness, how do we evaluate the impact that their condition has on consent, especially when those conditions cause them to understand things on a level pertinent to age of consent in non-disabled persons? This also highlights the balancing act we must be mindful of when distinguishing between child-on-child sexual abuse versus childhood experimentation, a distinction that is not always easy to make (Human Rights Watch’s 2013 publication Raised on the Registry is pertinent to this discussion).
• What is consent? Age of consent is based on the notion that there is a line of best fit (and, a socially constructed and morally defined line at that) that indicates a point at which we are best able to appropriately understand sexual relations and their impact. This raises many questions, especially regarding who determines this and how? Additionally, how does this relate to persons with special needs (intellectual or cognitive disabilities, mental health conditions)? How are people educated about consent and does this match up to their peer interactions and life experiences? This argument is also confused by the fact that some countries have the equivalent of statutory rape laws, meaning that below a certain age you cannot legally give consent. For instance, in the UK all sexual relationships with anyone under 13 are automatically considered to be rape because teens below that age are not thought of as being able to give consent. However, there is a odd 3-year gap in the middle between the statutory rape age and the age of consent. How do we explain the three years teens will have to wait before they can give the informed consent that the law seems to think is possible post-13? As you can see, the idea of consent is difficult in a legal, moral and psychological sense, which means that consent laws are the product of historical compromise.
• Social and Cultural practices relating to sex and consent? With all modern western societies being so culturally diverse, this means that additional cultural practices have to be incorporated into policy (for example, how do we manage immigrants coming from nations with such practices as forced marriage, child brides, female genital mutilation). Similarly, do we need to revisit some currently established practices in light of this new cultural integration? Even though age of consent may be different internationally, new immigrants and members of minorities will have to fall in line with policies in their host country and not their country of origin. However, has enough be done to educate newcomers on such issues?
• Technology, new media and old media? We have started to see an increase in sexting and image sharing between children. In public health terms, this has got to the point where we are on the verge of calling it an epidemic. However, contextually, all these devices, technologies, and formats are new; therefore, can we really compare them to 20 years ago when they did not exist? On one level, children are potentially no more sexualised and sexually active than previously, we just have more ways of uncovering it now. Previously, children may have shown each other their bodies, been sexually engaged, or looked at images offline and in private. Now, they are doing it online and in public. This is further complicated by children’s (lack of?) understanding of what it means to engage in such sexually charged activities in online interactions (e.g., sexting, sending inappropriate images, etc.). A recent study of young adults showed that their understanding of sexual politics and legalities are often quite limited (Fenton et al., 2013, ATSA Forum, available via the Comments section).

So, should the age of consent be lowered? I’m not sure anyone has a good or conclusive answer to that question, and I am no different. Should changes to age of consent and their implications be debated?  On this, I would say “yes”. Consent and understanding of sexual behaviour should be framed as an issue important in child protection, over and above how they pertain to  childhood development and sexual exploration. Maybe the place to start is in considering the social harms versus social benefits that may result from different standards of age of consent. Further, it will be important to assess the impact of age of consent on child vulnerability and the sometimes inevitable negative social consequences that come with breaking the “social contract” of the age of consent, which appears to be different from the actual “social norm” of childhood sexuality. This suggests that Professor Ashton is correct, in that childhood sexual behaviour is a public health issue that needs to be framed in a preventive/educational dialogue that helps protect children. Community engagement is at the forefront of this perspective.

Dr. Kieran McCartan

Associate Professor in Criminology

Programme Manager in Criminology

University of the West of England, Bristol UK

kieran.mccartan@uwe.ac.uk