New UN report says children can consent to sex with adults

This report is assuming a consent age of 18.

The term "red flag" means suspicious behaviour or wording that needs to be examined further.

When I look further, what do I see? Wording that can be interpreted two ways. My proposed replacement wording would make it clear that a child cannot legally be deemed to consent to sex whilst allowing the willing but slightly underage child to keep her bf out of court. The original wording does not make that clear.

don't prosecute a 19 yo man for shagging his 16 yo gf

We wouldn't anyway, as the legal age of consent here is 16, even though that is still a child by other definitions. Is that part of what the report is about?

@Clymene Crikey, you are right! And this whole thing is grim. Possibly well-intentioned, at least on the part of some who assented to it, but positively grim.

One apparent implication: a person who is HIV-positive, has sex without a condom with another adult in exchange for drugs, and does not tell that other adult about their HIV-positive status, may not be considered to have committed any criminal act, provided that they had sex because they wanted sex, not in order to intentionally transmit HIV. Furthermore, if they met in a brothel with 100 other prostitutes run by a wealthy businessman who runs a website advertising these services, that wealthy businessman also cannot be considered to have committed any criminal act.

A second apparent implication: If a 16-year old "falls in love" with a 35 year old and has sex with them, or even if a 12-year old does the same thing, then the possibility should be considered that there was consent in fact if not in law. So in any attempted criminal case, "s/he consented" would be a legitimate defence regardless of age. Furthermore, if the 16-year old or even the 12-year old is female and becomes pregnant, and the 35-year old organises for the 16-year old to have an abortion, then this must be taken entirely out of the purview of criminal law.

A third apparent implication: criminal law may not prevent pharmaceutical companies and doctors from advertising and providing puberty blockers and cross-sex hormones to a 12-year old, or performing gender-affirming surgery on a 14-year old, because the article as written does not even allow for the possibility that there might be a minimum age of consent for such treatments.

Unless I am reading this wrong, it is absolutely batshit crazy.

Given your proposed replacement wording, I don’t understand your objection to the use of capacity.

You think a child can be mature enough to give informed consent to sex, but you think referring to their capacity to do so is a red flag because it’s referring to a child being able to consent to sex? Why is capacity verboten, but maturity is okay?

a child's "yes" can be bought by an adult's inevitably greater financial power

Otherwise referred to as "grooming".

I said "terms like 'agency'" and I then went on to reference "capacity", which the report does use. Agency requires both capacity to decide and power to have your decision respected.

What's important here is what the report hasn't said in respect of agency: the power to have your decision respected.

In this context, the enforcement of criminal law should reflect the rights and capacity of persons under 18 years of age to make decisions about engaging in consensual sexual conduct and their right to be heard in matters concerning them.

Nowhere does it acknowledge the lack of power that "persons under 18 years of age" (or "children", in everyday parlance) have in their dealings with adults. It doesn't acknowledge how a child's "yes" can be bought by an adult's inevitably greater financial power, or caused by the child realising that saying "no" will be ignored and a faked "yes" is the path of least resistance.

If they wanted to say "don't prosecute a 19 yo man for shagging his 16 yo gf when she is adamant, when questioned in his absence, that she wanted and agreed to the sex" then they could say something like "enforcement of criminal law should not be without the consent of the alleged victim, as long as the alleged victim is mature enough to give or withhold informed consent to such enforcement". That would make it clear that the gf can veto prosecution of her bf. But they didn't. They used words that could be interpreted as the child being able to consent to sex, not the child being able to consent to being a witness in a criminal prosecution. I can foresee "capacity of persons under 18 years of age to make decisions about engaging in consensual sexual conduct" being used by adults to claim that a child consented when the child did not consent, to force a "he said, she said" contest that will result in charges being dropped.

The report doesn’t use the term “agency” to refer to children in the context of sexual behaviours. You should try reading it.

@Clymene This is not a "UN report". ICJ is an independent NGO. I have no idea whether they are an important NGO, or merely a self-important NGO that is actually quite irrelevant.

From a quick browse through the report, they also argue that it is a "human right" to produce and use drugs and that such activities must not be criminalised. While many countries and localities seem to agree nowadays, I am unable to take seriously any NGO that tries to argue that decriminalisation of production and use of drugs is a "human right", not only for adults but also for minors!

I think the use of terms like "agency" to refer to children in a context of sexual behaviours should be an automatic red flag. The whole reason why kids are deemed vulnerable and in need of safeguarding is because they lack agency, either through lacking capacity to give an informed "yes" or through lacking the power to insist on "no" being heeded. The onus should be on the people wanting to ascribe agency to the child to prove why it's necessary and appropriate to do so in a given situation (like how this guide to the Fraser guidelines explains clearly that GPs may prescribe contraceptives to children as a harm reduction measure under specific circumstances), not on the rest of us to prove why agency should not be ascribed to the child.

This is one of those circumstances where rhetoric of choice and autonomy is being used to undermine children's right to safety.

The quoted section can certainly be read as supporting the current UK position. It can also be read as supporting the PIE position. It has been written to be ambiguous. That's the problem. It would have been very, very easy to write a version of this document that can't be interpreted as support for legalizing adults having sex with children. Much easier than writing this amount of doublespeak.

The choice of 'involving' instead of the more common and natural word choice 'between' should be a red flag even to the most trusting of readers.

The intent being to stop the criminal law from being used to remove agency from children when they have the capacity for that agency.

Children don’t have the capacity to consent to sex. They do not understand the physical, emotional and psychological ramifications of engaging in it.

Talking about children’s capacity for the agency to consent to sex seems on par with women’s capacity for that agency to consent to death via strangulation in ‘rough sex’.

Doing so takes responsibility away from the adult (or man) and conveniently places it on those with less power. IMO.

https://www.bbc.com/news/uk-england-essex-50468890

They guidelines aren't about protecting anyone. They're guidelines on what should or shouldn't be worthy of criminal sanctions across the world. They aren't recommending specific laws or approaches to protecting children. They're talking about where they believe the limits of criminal responsibility should lie.

Rather than being about protecting adults, this section seems to me to be much more focused on societies accepting that children mature at different rates so hard cut offs for age should be softened with a case by case assessment that includes, amoung other factors, considering their maturity. The intent being to stop the criminal law from being used to remove agency from children when they have the capacity for that agency.

Under 18 with no qualification, so 0-17 years of age. Case by case. My goodness, if parents are faking taking cues from their toddler that they are really the other sex, these same toddlers are at a level of maturity to 'consent' to other things.

I agree with MrsTerryPratchett that if they'd intended to protect a 19 year old man from being prosecuted for having consensual sex with his 17 year old girlfriend, they could have said it. There are Romeo and Juliet laws that prescribe age gaps - typically 2-5 years - to handle teen sex. Holding the line of consent at 18 enables these Romeo and Juliet laws to exist, which would still allow prosecution of a 50 year old if he has sex with a 15 year old, but won't prosecute a 16 year old for having sex with a 15 year old.

Criminal law may not in any way impair the right to:

1. a) make and act on decisions about one’s own body, sexuality and reproduction –
2. such as about pregnancy; contraception, including emergency contraception; comprehensive abortion care; prophylaxis for sexually transmitted infections;gender-affirming care/therapy; and/or
3. b) access health facilities, services and goods, including information.

Isn't the 'gender-affirming 'care' and lack of criminal liability for health providers negated by the call for evidence-based (and the rest) in the next paragraph? Medical negligence; we shall see.

Health providers may not be held criminally liable for conduct, such as providing contraception, abortion services or accurate, evidence-based, non-biased information, that enables others to freely exercise their rights to sexual and reproductive health, unless they engage in coercion, force, fraud, medical negligence or otherwise violate the right to free and informed decision-making.

This seems ideologically driven, and in line with the current fashion. If all is good due to the principle of consent, maybe they also support this wrt inalienable rights. Can't be inalienable if you consent. If they support you getting your healthy sex characteristics chopped off/removed, why not other bits? As long as you consent. And, if those around you cheering you, and affirming you, is not coercion in the gender-affirmation context, I presume this is fit to be extended to other circumstances.

I agree with number theory. I think a 17 year old can consent to have sex with an 18 year old, that’s not even worth debating. There are various age combinations that are fine, (I’m talking within existing uk law), but also other circumstances that would make the same age gap more or less acceptable. Context IS important as you get close to the edges of the age boundaries. A little more clarity should have been employed, but given that this is general guidance rather than specific to each country, I can see why giving specifics could be tricky.

Unpopular opinion here, but I think this is an inevitable consequence of thinking sex between minors (with no adults involved) is ok.

In my view, we need to roll back the idea that they'll do it anyway and go back to being openly disapproving of teens below the ages of consent having sex. I don't mean we should prosecute them, but sex ed should say, "You are below the age of consent, your brains are not fully developed, you cannot consent to sex and for your own sake you should not be having it yet."

I know there's a school of thought that telling them not to do it just makes them want to, but there's lots of things we tell teens not to do - smoke, for instance. And yes, some of them do smoke despite being told not to, but we don't just give up and say, "ok then, do what you want," about smoking, do we?

When something is followed 'by due regard', it always reminds me of the former wording of the ban on abortion in the Irish Constitution. acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother.

Anything following the 'due regard' meant diddly squat. That is why women died. Although it took the death (due to the neglect to her supposed equal right to life) of Savita Halappanavar to highlight it internationally.

It’s supposed to be high level guidance on the principles to apply to policy and statute development, not a list of laws you should or shouldn’t have.

They wrote:
…any prescribed minimum age of consent to sex must be applied in a non-discriminatory manner…

Which is pretty much what I put above but also includes a prohibition of different ages of consent by sex, race, marital status, disability, etc. and makes it clear that the issue is treating people equally regardless of the classes they are members of, not just protecting gay people from discrimination.

Then say that. You could write it exactly that way. But they didn't.

I think it’s partly that, but also about trying to stamp out laws that allow heterosexual sex at, say, 16 but criminalize homosexual sex until 18.

Sorry I meant a 17 year old and an 18 year old..fat fingers.

I'm reading it that under 18's may be able to consent to sex with under 18's or in some cases over 18's, on a case by case basis. E.g two consenting 16 year olds or a 18 year old and an 18 year old. Isn't it to protect cases like that?