Queer Theory and the Age of Consent

Dr Sarah Beresford comments upon the recent calls for a lowering of the age of consent.  Towards the end of 2013, the topic of changing the age of consent in England and Wales was much in the news.  She suggests that much of the debate has focused expressly or impliedly on the age of which men and boys have sexual intercourse (whether gay or straight). Those who argue for a reduction in the age of consent use (whether knowingly or not) a queer theory approach to the issue.  Queer theory, originally intended to be a liberating phenomenon, has in fact become synonymous with white gay men. Consequently, the debate on the age of consent has ignored or given insufficient attention to the effect(s) a lowering of the age of consent will have on girls and women.

In England and Wales, the age of consent is 16 (Sexual Offences Act 2003).  Children aged less than 13 years do not have legal capacity to give consent.  The law does not intend to prosecute those that are aged 14-15, provided that the sexual activity is by mutual consent and doesn’t involve abuse or exploitation.   Those in favour of lowering the age of consent include Professor John Ashton, President of the Faculty of Public Health, who proposed a lowering to 15, arguing that the change would make it easier for 15-year-olds to get sexual health advice from the NHS.  Peter Tatchall suggests lowering the age of consent to 14 based on a ‘desire to reduce the criminalisation of under-16s who have consenting relationships with other young people of similar ages.’  Tatchall is clear that he is not advocating teenagers having sex before the age of 16.  His emphasis is that if teenagers do have sexual intercourse before the age of 16, they should not be arrested, given a criminal record and put on the sex offenders register.

Tatchall’s justification is based on his assertion that the average age for first sexual experience is 14 (citing the National Survey of Sexual Attitudes and Lifestyles).  It is noteworthy that the Sexual Attitudes survey relied upon by Tatchall includes all first sexual experiences, not just first age of sexual intercourse.  Ashton’s argument that the current age should be lowered is based on the notion that it denies young people access to health care treatment and information.  However, Health professionals are already permitted to provide confidential sexual health advice, information or treatment (see for example, Gillick (A.P.) v West Norfolk and Wisbech Area Health Authority and the Department of Health and Social Security) [1986] AC 112]. If the treatment is to protect the young person’s sexual health, physical safety or emotional wellbeing, it will not be an offence.  The suggestions put forward by Ashton and Tatchall were quickly rejected by all three of the major political parties.

What, therefore, links the debate surrounding the age of consent and queer theory?  I suggest that whilst on the face it, the age of consent debate is inclusive of all identities, it is instead, inherently privileging of patriarchy. The term ‘Queer’, as Halperin suggests, is by definition whatever is at odds with the normal, the legitimate, and the dominant. Queer theory aims to destabilize dominant ideas of identity, whether that identity is sexual, gendered, ethnic, national, and political and so forth. Queer is not an identity, rather, it is a critique of identity and identity construction. Queer theory suggests that it is through the use of binary categories that ‘meaning’ is created. Thus society only understands what ‘homosexual’ means in relation to the concept of ‘heterosexual’ which is positioned as the opposite.  Similarly, society can only understand what ‘man’ means in relation to the concept of ‘woman’ which again, is constructed and positioned as the opposite.  Although the terms in these binaries appear fixed and natural, as Stychin argues, they are actually contingent and socially constructed and they are far from being natural or fixed.

According to queer theory, these oppositional identity terms (such as ‘woman’, ‘feminine’ ‘mother’ etc), are used to oppress all individuals, not just those who are regarded as being in a minority.  If queer theory is to ‘work’ and be successful in destabilising identity constructs, it can act as a liberating force for all individuals.  One of its original aims therefore was to be inclusive.  However, a major criticism raised against queer theory is that it is no longer inclusive (if it ever was).  As Jeffreys argues, queer theory, despite its supposedly counter-normative associations, has come to signify white gay male, which means it does not challenge or change; it is simply ‘more of the same’.  The debate surrounding lowering the age of consent has in these terms been a queer debate because it has, on the face of it, focused its aim on helping both boys and girls under 16; it purports to be inclusionary.  However, to a significant degree, the debate has placed insufficient emphasis upon the effect(s) a lowering of the age of consent will have on teenage girls, and has therefore become, on closer examination, exclusionary rather than inclusionary.

Whilst I resist biological essentialism, there are never the less, significant physical and biological differences in the consequences of sexual intercourse for boys and girls.  One of the most obvious of these is of course pregnancy. Lowering the age of consent not only tells teenagers that this is the age at which they can legally have sexual intercourse, it also tells 14 or 15 year old girls that this is when society and law consider that they are physically and emotionally mature enough to become mothers. This position is not sufficiently acknowledged in the debates surrounding lowering the age of consent. I would suggest that 14 or 15 is too young to become a mother.

There are social as well as medical risks to becoming a parent at 14 or 15.  Some of the medical risks attendant for young teenage pregnancy include low birth weight; premature labour; anaemia, and preeclampsia. The World Health Organization estimates that girls giving birth aged 14 or less are five times as likely to die, and that stillbirths and newborn deaths are 50% higher among infants of adolescent mothers than among infants of women aged 20-29 years.  Early first sexual intercourse is also more likely to be unprotected against pregnancy and infection.

Some of the social risks associated with early teenage pregnancy include lower educational levels, higher rates of poverty, and other poorer life outcomes in children of teenage mothers.  Additionally, the age of consent is commonly linked to the age at which people can get married.  Whilst this is not an automatic link, it is highly unlikely that the law would say to teenagers that they can have sexual intercourse at 14, but not marry until they are 16.  Thus, to lower the age of consent would be likely to have the consequence of lowering the age of legal marriage and effectively encourage what is currently considered to be child marriage. According to the Convention on the Elimination on All Forms of Discrimination against Women (CEDAW), marriage before the age of 18 should not be allowed since children do not have the ‘full maturity and capacity to act’.  Child marriages are of course, not just a problem in the UK.  Unicef estimates that between 2011 and 2012, there were 100 million girls child brides worldwide.  In the UK, the All Party Parliamentary Group on Population, Development and Reproductive Health has also stated that the effect of lowering the age of consent would be to encourage child marriage.

Part of the justification for lowering the age of consent has been that young teenagers are having sex anyway.  I reject this justification as a sufficient basis for a change in the law. Just because teenage girls are having sexual intercourse and sexual encounters below the age of 16, doesn’t automatically mean that they are ‘ready’; that they do so free from peer pressure, and that the sexual activity is genuinely consensual.  Similarly, the fact that both parties are under 16 does not automatically mean that the activity is consensual. In addition, ‘earlier first intercourse is less likely to be an autonomous and a consensual event’.  According to ChildLine, more than 15% of all the calls that ChildLine receives about peer pressure are related to sex (they define ‘child’ as anyone aged 17 or under).  ChildLine states that there is a ‘profoundly worrying level of pressure on young people to be sexually active, often at a very young age and before they are ready for such a relationship.’  The pressure to have sexual intercourse at a young age is borne out by research carried out by various organisations.  The NSPCC for example, found that two out of three cases of sexual abuse in teenagers aged 0-17 years were carried out by perpetrators who were also under 18.

Some conclusion(s)

There is therefore no ‘queerness’ about the debate surrounding the lowering of the age of consent, the effects on teenage boys has been over emphasised at the expense of the impact on teenage girls.  In order to have a truly genuine queer debate about the age of consent, sufficient attention must be paid to all of those affected and involved, particularly girls and extend to schools, medical staff, social workers etc.  Lowering the age of consent is likely to lead to an even greater pressure on girls to be sexually active before they are ready, exposing them to experiences and consequences before they are sufficiently emotionally and physically mature.

Rather than lowering the age of consent, there should be a significantly greater emphasis upon compulsory sex education in schools. Sex education should extend significantly further than the limited education currently provided.   Labour tabled an amendment to the Children and Families Bill (disappointingly defeated in the House of Lords on 28th January 2014), which would have made sex and relationship education (SRE) at all stages of education a compulsory subject as part of the statutory Personal Social Health and Economic Education (PSHE) requirement . Statutory guidance would also be updated to reflect the changes in the Internet. The amendment was supported by The Sex Education Forum; Brook and the PSHE Association. At the present time, schools are only legally required to teach the biological aspects of sex, contraception and sexually transmitted infections in science lessons.  Schools are not required by statute to teach pupils about pregnancy; delaying first sexual experiences; sexual orientation; safer sex and relationships. That this is needed has been found by such organisations as the National Children’s Bureau, whose recent research found that nearly a third of teenagers said they did not learn about sexual consent in sex education lessons and that they were not taught about the legal age of consent for sex in schools.

Sarah Beresford is a lecturer in Law at Lancaster University.  Her main research and teaching interests are in family, gender, sexualities and the law. 

You can find out more about Sarah’s research at http://www.lancaster.ac.uk/fass/law/profiles/sarah-beresford

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