Empowering Children – Informed Consent & Sexual Exploitation
By Dieter Lubbe, Founding Director of the Pinion Project
The value of consent is sometimes overlooked by adults, generally speaking. We sign consent forms, agree to terms and conditions with everything from App’s to cell phone contracts and so on (as mere formalities). For many, this day to day public understanding of consent is altogether different from the way we think about our agreement in private relationships (this is particularly true of our intimate choices). Tacit to this notion of intimate choice, is the idea that the state has no business interfering with what happens behind closed doors between consenting adults. But of course, some situations, even in private, do have public interest. If, for example, a professional couple shares insider trading information in bed (behind closed doors) they are guilty of a crime. The private nature of the location will be understood as irrelevant in such cases.
Recently, the topic of consent has gained media attention in cases involving gender based violence. The disconnect between entitlement and consent calls for a deeper understanding of the subject. In this article, we will touch on a few of the important themes pertaining to this significant subject. We will specifically be considering ideas surrounding a legal understanding of consent, with particular reference to children.
It is important at the outset to take a moment to consider the extent of sexual exploitation of children in South Africa. Behind the statistics are young people, deserving of our empathy. Both teen pregnancy and HIV statistics help frame the magnitude of this challenge. According to South Africa’s National Strategic Plan for HIV, TB and STIs 2017-2022.
‘Young women (aged between 15 and 24 years) in South Africa have the highest HIV incidence of any age or sex cohort… One third of teenage girls become pregnant before the age of 20. Responding to the social and structural drivers of this vulnerability (which leads young women towards having sexual relationships – many of which are transactional in nature – with men who are five to 10 years older than they are) is key to controlling the epidemic.’
To be clear, in terms of the sugar daddy or so-called ‘blessers,’ this behavior must be condemned irrespective of ‘social and structural drivers’. SA Criminal Law Section 17 leaves no doubt that any child involved in ‘transactional sex’ is being sexually exploited. Adults who take advantage of children in this manner must face the punitive force of the law. The call to protect and help young girls whose lives are impacted by such abuse requires a multidisciplinary response. Furthermore, a social driver like exposing children to sexually-explicit materials also constitutes a form of child sexual abuse, more appropriately described as the non-contact abuse. In certain circumstances this abuse constitute the offence of indecent assault. Sexual touching is not the only kind of child sexual abuse. It is abuse to intentionally expose a child to pornography.
So, in the light of this information, the word ‘consent’ takes on a deeper ethical commitment in which it should be informed, age appropriate and in the best interests of the child. Empowering people to avoid exploitation before it happens is ultimately the high road to take.
Getting “informed” about CONSENT?
According to the South African Sexual Offences Act definition, ‘consent’ means voluntary or uncoerced agreement. The idea of an unforced smile is sometimes given as an example of uncoerced. But as anyone who has worked with children knows, children do not always behave from the vantage point of the better angels of our human nature. Furthermore, not everything legally allowed is beneficial. The court in SA has contended that the law is not always the best instrument for shaping children’s consensual peer group behaviour. Sex education then becomes a significant focus in the fight to empower families and communities. We cannot overemphasize this point. Consent, if it is anything, is an act of reason and deliberation. The mind weighs in on the balance between good and evil. Children, in particular, cannot be expected to carry this burden alone. Bruce C. Hafen, Professor of Law, Brigham Young University, points out:
“…‘protection rights’ rather than ‘choice rights’ for children… Giving children choices that they are not prepared to make can actually undermine the fulfilment of their most essential needs—which, in effect, abandons them to their rights. By their very nature as developing persons, children are dependent on parents and other adults to help them meet their needs.”
Family Education – Dignity
Parents and guardians need to live and teach a culture of respect. This starts when little children first begin to learn about sharing toys etc. Respect, permission and empathy must be part of everyday living and not only our most intimate interactions. We affirm that the grounding of human rights and values starts with the recognition of the dignity of every person. Human dignity, in our international covenants, affirms the fundamental worth of people. This worth includes the body, which is not merely organic, it is to be protected and respected. Dignity in this frame of worth, also makes a relational claim. We are to recognise the dignity in others.
With this said, recognition of the natural family and community has been significantly challenged by a narrative of sexual entitlement (which gained momentum in the 1960s). The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. It is uncontroversial to assert that monogamous relationships, like marriage, have significant benefits to the couple, their children and society at large in terms of health outcomes. If people think that human rights are about the pursuit of pleasure and sensual self-indulgence (hedonism), they are more likely to indulge in sexual vice. The central tenet of hedonism—that the good consists in the experiential—is incorrect. This, in turn, impacts everybody, as Professor Robert P George put it:
“…private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of “private” morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation.”
It is the case that abstinence from sexual intercourse is the most effective method of preventing unintended pregnancy and sexually transmitted diseases, including HIV among our youth. This claim is often challenged via the educational outcomes of something called ‘abstinence based sexual education’ vs ‘comprehensive sexuality education’. The evidence, we are told, indicates that children who are taught they should ‘abstain’, are statistically more at risk than children who are fully informed on every sexual proclivity. In formal logic, a false dichotomy sets up two alternative points of view as if they were the only options, argues against one of them, and thereby concludes that the other must be true. We should not be so easily distracted by this myopic view when we are faced with very difficult ethical questions. We must dispel the myth that ‘the worst manifestation of authoritarianism is – self imposed control’.
This fiction was skilfully introduced as ‘anti-fascism’ in the sixties by thinkers like Theodor W. Adorno and Herbert Marcuse. In short, they inverted ideas around sexual self-control to undermine the natural family in an effort to advance a political agenda of state control. Margaret Sanger’s eugenics philosophy also had a significant impact as it opened the way to ever increasing government control of the private sphere. We cannot afford to indulge such mistaken ideologies any longer.
The sexual entitlement narrative and the permission-giving beliefs that result in gender based violence are forcing us to reassess our collective responsibilities and reasoning. We believe both parents and children are being influence by a sexualised cultural narrative. The sexualised cultural narrative tells a deceptive story about child-autonomy in the frame of consensual sex rights. Hedonism is mistaken, and therefore, when it is illegitimately connected with ‘new sexual rights’, it is mistaken (biology is not bigotry as some have said). These ideas must buttress our efforts and policy vision in the defence of human dignity and the right to be safe, empowered, and free from sexual exploitation.