Who Consented to This? - A Legal Exploration into how Ages of Consent Should be Settled upon in Light of Iraq’s Intention to Reduce it to Nine Years Old
What is consent in relation to Children?
Consent is defined in statute as an agreement made ‘by choice, … [when the person] has the freedom and capacity to make that choice.’ When one relies on the common psychological understanding of a child’s mental state, as one void of capacity, the question of how a minor could be capable of consent is raised. Stanford Sociologist Dornbusch posits that it is actually between the ages of 12-17 when the independent decision-making skill (sans parental input) is honed. The innate inability of a child to make weighty decisions is what makes the harm of under-age sex such a potent issue in the law. Sexual conduct prior to reaching points of a) sexual readiness and b) a developed level of social and emotional maturity required for meaningful consent, would lead to negative psychological outcomes.
A holistic interpretation of how this harm operates would consider the aforementioned psychological and physiological outcomes of underage sexual activities as opposed to solely viewing consent as outward ‘‘willingness.’ Ultimately, when children are involved in any consent inducing activity, the possibility of exploitation is inherent – this is what makes Iraq’s new proposal so abhorrent. Iraq’s legal revision would cut the legal age of consent for women (or in this case, girls) from 18 to just 9. The foundation of Iraq’s new amendment is to supposedly prevent immoral (premarital) relationships among the youth, demonstrating a fundamental difference in the objective of legislation when contrasted with the UK for example. The difference is that of care versus control. If the ‘end of law is not to abolish or restrain, but to preserve and enlarge freedom’ then preventing consenting teenagers from entering into relationships whilst allowing child-marriage is not only a failure in law, but also a wilful endangerment of society’s most vulnerable – children.
How has Consent Law surrounding Children developed in the UK?
It must be noted that reference to ‘under-age sex,’ in this article concerns sexual relations with under 16’s (following the UK’s framework and wording). For clarity, it is an offence for anyone to have any sexual activity with a person under the age of 16. However, Home Office Guidance is clear that ‘there is no intention to prosecute teenagers both under the age of 16 where there was a mutual agreement and where they are of a similar age.’ The law acknowledges that girls and boys may ‘engage in ostensibly consensual sexual acts with their peers’ - essentially providing a protective legal cover to what is already happening in the shadows.
Historically, 1576 England saw the implementation of a new law that made sexual intercourse with girls under the age of 10 a crime, and deemed sexual acts with girls aged 11-13, ‘misdemeanours.’ Here, despite lacking a psychological understanding of children’s mental development, there was still the intention, and desire even, to reserve the ‘highest sentences for offences against the youngest girls.’ This is a demonstration of protection, yet this does not mean UK law has not dabbled in suppression – particularly in the interest of religious doctrine. Statute such as the Criminal Law Amendment Act of 1885 sought to prevent girls from acting upon their new and disorderly ‘emergent sexualities.’ This is particularly apt when contextualised against the Victorian backdrop of ‘the fall, which refers to an ‘irrevocable loss of innocence, as in the Garden of Eden,’ after intercourse. The objective of raising the age of consent from 13 to 16 was not solely for child protection, but also to prevent young girls from being ‘given the opportunity to fall.’ Countering Foucault’s assertion that consent is merely contractual and ‘not a measure of harm, ’ Assistant Professor David Guignion argues that ‘laws need to be coupled with care… by legislating for the dynamics that arise.’ Consent Law should therefore, arguably be predicated on protection from exploitation. Linking Guignion’s stance to the aforementioned UK guidance of today, it is clear that the purpose of sexual consent law in the UK, and similar-minded jurisdictions which will be discussed below, has ‘shifted away from regulating juvenile sexualities and moved towards preventing exploitation.’ This approach is conducive to achieving law that cares about and protects children rather than controlling and criminalising them.
Development of Consent Law in UK and other Western Nations
Despite the early concerns of preserving chastity and innocence, it seems that now, the UK is concerned with the law as a protective rather than punitive tool in the case of children. However, this protection has previously been afforded to ‘perpetrators.’ The Criminal Law Amendment Act 1885 exonerated a man (regardless of age) who had ‘reasonable cause’ to believe that a girl aged 13-15 was over the age of 16, thus any girl who looked older than her age was not automatically protected by the law. This emphasises laws as products of cultural/ religious norms, in 1885 the Victorian characterisation of provocative girls/women was a link to ‘Eve as temptress,’ thus the blame was for the girl/woman to bear. Similarly, in Colonial Australia, the Girls Protection Bill 1910 in the state of New South Wales, raised the age of consent to from 14 to 16. However, this specifically excluded the protection of girls aged 14-15 if they looked sixteen or older. Yet, belief that one has obtained legal consent through appearance alone is a risky defence indeed. Hence, the 2003 decision in R v K found that a 26-year-old defendant was not guilty of an offence against a 14-year-old girl if he had ‘honest belief’ that she was over the age of 16 - as a result of her telling him this was so. Shifting the standard of garnering age-appropriate consent from appearance alone, to meaningful clear consent was an important development in protecting girls and ‘preserv[ing] children’s bodily integrity, privacy, and developing autonomy.’ It is the power dynamic established through the intimacy of sexual acts that requires legal consideration. In Australia in cases where ‘an adult of [holds a position of] authority, care, supervision and/or trust with a child under the age of eighteen,’ and consequently conducts sexual relations with that child, it is argued that a higher age of sexual consent is required because of the ‘increased vulnerability to exploitation and manipulation’ such a relation places on the child.
The passage of the Child Abuse Prevention and Treatment Act in the U.S.A. in the 1970s, positions the child as in all circumstances only capable of being the victim of harm. Children are posited as: ‘powerless,’ ‘unknowing,’ and ‘unable to consent;’ with ‘a presumed lack of sexual knowledge’ and ‘an inability to make or understand sexual decisions.’ This protects the child by utilising the psychological/ scientific understanding of them, as imitators of the behaviour they observe as humans yet to develop. With this in mind there is, and arguably there should always be, a pertinent obligation to protect such vulnerable and impressionable beings. In 2008 Canada not only raised the age of consent from 14 to 16 (changing the age for the first time since 1890) but also renamed the concept to the ‘age of protection.’ Dauda stresses the positive significance of changing the name from ‘consent’ to ‘protection’ stating that: ‘age of consent speaks to the personal ability to render a decision ... [whereas] age of protection avoid[s] the question of personal decision making and divert[s] attention toward[s] harm.’’ In the same vein of protection, many Western advocates of lowering the age of sexual consent, do so on the basis of preventing pregnancy and disease. By extending access to sexual health services to the affected younger demographic, underage sexual activity is controlled in so far as the health of minors is ameliorated. This seems more pragmatic than trying to control the inevitable development of relationships in the first place. The fundamental and prevailing sentiment of Western consent law concerning minors, is one of protection and destigmatisation instead of facilitating exploitation and shaming. The approach of care and protection instead of control and victimisation, directly juxtaposes the foundations of Iraq’s new proposal.
Iraq, Consent, and the Coalition
Through an Amendment made to Law 188, a ‘conservative coalition of Shia Muslim Parties’ are seeking to overturn this ‘personal status law,’ previously revered as the most progressive of the Arab World. As prominent Iraqi feminist Yanar Mohammed laments, this will take the ‘women of Iraq to [a] pre-state situation, with no support [available] as citizens of modern times,’ utterly removing ‘women’s rights to divorce, child custody and inheritance.’ If passed, it means that Iraq will have the youngest age of consent in the world (nine) - with their neighbour Iran having the second youngest at 13. Former Prime Minister of Iraq and the proposer of the bill, Al-Maliki also seeks to criminalise homosexuality; with media outlets being instructed to replace the term “homosexuality” with “sexual deviance” in all reports. Similar to the reasoning that grounded male guardianship laws in Saudi, supporters of the bill see it as protecting young girls and preventing immoral relationships. Whereas in the UK, by not criminalising such behaviour amongst youths, the law seeks to facilitate healthy sexual relationships between consenting teenagers whilst also prohibiting child sexual abuse.
This dangerous amendment ‘doesn’t just erode rights — it erases them,” warns Sarah Sanbar, a researcher for the Human Rights Watch in Iraq. A primary reason as to why this bill’s logic differs so vehemently from the UK’s legal stance on children and consent, is the prevailing interpretation of a child’s capacity. According to Islamic scholar Sheik Mustafa Albayati consent is: ‘related to age as much as it is for readiness, the threshold is puberty… when she’s ready for marriage she must marry.’ Puberty as the criterion for marriage is impossible to reconcile as it is a) a subjective experience that does not always begin at age 9 and b) it does not at all trigger an immediate switch to an adults mental state. Razaw Salihy, Amnesty International’s Iraq researcher summarises the intention explicitly: by ‘eliminat[ing] the current legal marriage age of 18 for both girls and boys… the way [is paved] for child marriages.” Yet, in light of the coalition’s current composition, the bill is unfortunately poised to pass.
The coalition’s sentiment is that reducing the age of consent prevents young girls from engaging in ‘immoral relationships,’ the assumption here being that ‘immoral’ is synonymous with pre-marital. Dr Renaud Mansour, who is the project director of the Iraq Initiative at Chatham House, attributes this to the idea that Shia Islamist factions are “pushing a strict religious agenda to control women’s lives and solidify their ideological authority.” The ‘Coordination Framework’ (the umbrella term given to Iraqi Shia Parties) must believe that morality is retained in legalising sex with children, so long as they are nine years old, and it occurs within the context of marriage. This line of thinking has been contextualised in the similar situation of a ‘dramatic increase in early marriages of Afghan girls;’ something that activists and human rights campaigners attribute to parents' believing that securing a spouse for their girls is better than seeing them forced to marry members of the Taliban.’ The word ‘forced’ underscores the crux of this article’s argument – surely marriage to, or sexual relations with a child, are always forced on the basis of the child’s inability to make such decisions?
Conclusion
In conclusion, the inchoate mental state of a child is the paramount concept that should be used in determining appropriate consent laws. Making important, life-altering, decisions is an exercise innately incompatible with the mental capacity of a child. Reducing the age of consent to unfounded lows is to not only sexually exploit susceptible and vulnerable children but to also subject them to cruel psychological harms. The amendment proposed in Iraq, is therefore not only a legal abomination, but also an explicit threat to the liberty of women, children and the LGBTQ+ community. The passage of this amendment to Law 188 would pave the way for even more fatal, constricting and dehumanising measures.
Neha Wahiwala
Bibliography
Primary Sources
Cases
R v K [2001] 3 W.L.R. 471 HL
Legislation
Child Abuse Prevention and Treatment Act 1974
Criminal Code 1985
Crimes (Girls Protection) Bill 1910 No. 2
Criminal Law Amendment Act of 1885
Criminal Law Consolidation Act 1935
Law 188 (1959)
Sexual Offences Act 2003
Tackling Violent Crime Act 2008
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