New UN report says children can consent to sex with adults

[Clymene]

And that there should be no criminal charges for adults who have sexual relations with children.

The International Commission of Jurists - 'Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems' - has published a a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty.

They've (ironically) called it the 8 March (IWD) Principles. I say ironically because as you can probably guess, a lot of the report is about men's right to have sex without fear of prosecution.

The entire report is basically decriminalise all the things.

Children can consent to sex:

sexual conduct involving persons below the domestically prescribed minimum age of consent to sex may be consensual in fact, if not in law. 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.

Punters and pimps should not be prosecuted:

The exchange of sexual services between consenting adults for money, goods or services and communication with another about, advertising an offer for, or sharing premises with another for the purpose of exchanging sexual services between consenting adults for money, goods or services, whether in a public or private place, may not be criminalized, absent coercion, force, abuse of authority or fraud.
Criminal law may not proscribe the conduct of third parties who, directly or indirectly, for receipt of a financial or material benefit, under fair conditions – without coercion, force, abuse of authority or fraud – facilitate, manage, organize, communicate with another, advertise, provide information about, provide or rent premises for the purpose of the exchange of sexual services between consenting adults for money, goods or services.

Feels batshit to me but I have no idea how much power and influence they have.

icj2.wpenginepowered.com/wp-content/uploads/2023/03/8-MARCH-Principles-FINAL-printer-version-1-MARCH-2023.pdf

@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!

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

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.

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

Otherwise referred to as "grooming".

The report is a coproduction: The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.

Both UNAIDS and the OHCHR are wholly UN bodies.

Here is the press release about the report: www.unaids.org/en/resources/presscentre/featurestories/2023/march/20230308_new-legal-principles-decriminalization

I thought I'd linked to it in my OP so apologies if I didn't. And yes I agree with you that the decriminalisation of all drugs is odd. But the whole thing is so liberal their brains fell out.

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?

@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.

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?

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.

This report is assuming a consent age of 18.

What if the 39 year old was the Teacher or GP organising a 20 week abortion for a 16 year old on their 16th birthday?

1. We already have Fraser guidelines for that.

1. Abortions aren't sex, so it's not a valid comparison. No one ever died or ended up with a baby from not having sex.

1. Doctors are liable for misconduct relating to abortions, not an adult who booked the appointment on a child's behalf.

Have just reread your comment with the proposed replacement and the Principle 16 in the report more closely.

There are a couple of things I realised - one is that you seem to be stating that the existence of an age of consent law creates the lack of mental maturity to consent to sex. Is that your position? That a child’s mental maturity is actually, not just legally, defined by the law? Because if so that is, frankly, nuts and there is no way a legal guideline that is supposed to be taken seriously across the world should take that position. The law is a construct, it can create legal fictions but it can’t alter reality.

Also, I realised the principle is more tightly written than I initially thought. It doesn’t seem to stop prosecution for having sex with a child, only prosecution for having non-consensual sex with a child if the child has the mental capacity (or maturity) to consent and did so. I.e. it requires countries to distinguish in their legal code between sex where a minor has the mental capacity to consent and does so, and situations where they don’t consent with different offences. It also doesn’t require a country to follow the victim’s preference when it comes to prosecution, just to allow them to be heard, so the guideline allows for prosecution in more cases than your proposed wording.

The report doesn’t assume any age of consent at all. It defines people as children until they are 18. It is written for countries across the globe, whether they have an age of consent or not and whatever that age of consent is.

YankeeDad explains my concerns better than I can. I note that you seem to have no rebuttal for him.

The guidelines don’t prevent countries from determining that, for instance, a 12 year old could never have the maturity to consent to sex (as the UK does) and so a s/he consented defense is not possible.

I agree with the concerns re: passing on STDs. I think criminal law can ethically be applied to reckless behaviour that harms others. I haven’t spent enough time looking at the medical bit. There did seem to be some caveats there but I only skimmed.

They also don't force a country to do so, and could be interpreted as "she consented and therefore he shouldn't be in the dock" regardless of her age.

They don’t recommend any laws at all. They do explicitly say that enforcement of criminal law should reflect the capacity of a child to consent, not just consider if the child consented.

These are guidelines on principles to consider when creating laws that are solely aimed at where it would be unethical (in their opinion) for the law to criminalize people. Different countries will implement that differently and have different opinions on what makes a child capable of consenting so may have very different approaches from the UK or similar countries on how to do that.

These are guidelines on principles to consider when creating laws that are solely aimed at where it would be unethical (in their opinion) for the law to criminalize people. Different countries will implement that differently and have different opinions on what makes a child capable of consenting so may have very different approaches from the UK or similar countries on how to do that.

But then how to explain the fact the UN does have a position on the minimum age for marriage (the UN says it's 18)? It doesn't make sense to have a view on that and not on the age of consent for sex.

I disagree that it doesn’t make sense, but regardless, the UN not having a view on a global age of consent isn’t the fault of the International Commission of Jurists and it wouldn’t be appropriate of the ICJ to come up with a view on that since that isn’t their domain.

Sorry but this document was the work of the UN, too. Wasn't it? I thought so. Therefore it does seem odd that they'd have a view on consent to marriage and not to sex as well, given that child marriage accelerates risk to female children of dying in childbirth. That's why they have a view on child marriage SFAIK. And that's why this is odd.

www.unaids.org/en/resources/presscentre/featurestories/2023/march/20230308_new-legal-principles-decriminalization

The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.

www.unaids.org/en/whoweare/about

UNAIDS is a model for United Nations reform and is the only cosponsored Joint Programme in the United Nations system. It draws on the experience and expertise of 11 United Nations system Cosponsors and is the only United Nations entity with civil society represented on its governing body.

www.un.org/en/global-issues/aids

UNAIDS is an innovative joint venture of the United Nations family, which brings together the efforts and resources of 11 United Nations system organizations to unite the world against AIDS. These are: UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank.

The UN are involved but it’s not a UN publication, is it? It’s published under the ICJ and is endorsed by UNAIDS, not the UN as a whole.

Even if it is a UN document and if the idea of a universal minimum age of consent to sex were a good idea, the lack of a UN declaration on what that age should be doesn’t mean this endeavor should have come up with one. If the UN ought to be coming up with a minimum age of consent to sex, it should be doing that in a much wider capacity than the limits of the ethical use of criminal law in a few specifics areas. The domains of expertise and the focus of the project would be entirely different.

Not a UN report . Icj here is an NGO

https://www.icj.org/about/

It's a coproduction between those two and the Office of the High Commissioner for Human Rights.

They have nearly 4% of the overall UN budget. They are one of 10 Offices of the UN.

I linked to the press release in my previous post.

But why does that make this the appropriate vehicle to decide on a universal minimum age of consent? If there should be a universal minimum age of consent to sex this isn't the group of people who should be thinking about it. It would be a totally different field of expertise and would need looking at from a totally different angle.

It would also be ridiculous to bury something like that in a document about the ethical limits of criminal law.