Martinson. Chapter 6
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Students of childhood in a number of professions have attempted to trace the history of child paradigms and the accompanying treatment of children within the Western world. A widely held opinion among such scholars is that both the perceptions of children and the treatment of children have improved markedly in the Western world at least from the sixteenth through the twentieth century. Whether there has been such an evolution and such progress in child perception and care is a moot question (Pollock 1983). That there are different perceptions of children and that some perceptions have predominated more at some times than at others is less debatable.
Perceptions of children and of child care come to be reflected both in patterns of behavior and in the law of the land. In this chapter we focus only on one area of law relating to children, namely legal and judicial decisions dealing with child sexuality. Societies not only have general perceptions about the nature of children, they also have specific perceptions about their sexual nature and how, where, when, and with whom their sexuality shall be expressed, if at all. Different scholars, in describing the differing paradigms affecting children and child care, have employed various descriptive concepts.
In dealing with child sexuality, I will use the three descriptive concepts that Lee (1980) employed: property, protection, and personal paradigms.
According to the property paradigm, children are the physical property of adults. Their bodies and their sexual activity are in the power of adults. In extreme cases, the child's body may be mutilated (castration, circumcision, clitoridectomy) or used for sexual purposes by an adult without the child's consent. In milder cases of sexual control, the child may be prevented from or punished for enjoying his or her own body through genital play or masturbation. According to Lee, in the mildest cases of sexual control the child is denied the age-appropriate information necessary to know how to be sexual or is fed misinformation (Sears, Maccoby, and Levine 1957).
According to the protection paradigm, the child is a person in training and is held in trust for a period of time until deemed old enough or mature enough to look after himself or herself. From the perspective of a personal paradigm, children are persons and citizens in their own right. From this perspective, age is not considered a more valid basis for discrimination against certain categories of persons than are race, sex, or religion.
According to DeMause (1974), the sexual use of children by adults (the property paradigm) was far more common in the past than it is today. The child in antiquity, both in Greece and in Rome, was likely to be engaged in sexual activity with adults at the adults' discretion. Where homosexuality with free boys was discouraged by law, men were known to have kept slave boys for sexual purposes. According to DeMause, "the Greeks and Romans couldn't keep their hands off children" (DeMause 1974:547). Boy brothels existed in urban centers, and castrated boys were favored sexual partners by men in imperial Rome. Castration of boys was common enough in Rome, for sexual and other purposes, so that during Constantine's administration a law against castrators was enacted.
It was not until the introduction of Christianity in Western society that a conception of children as innocent and as inappropriate sex objects became a dominant cultural paradigm — a protection paradigm. Efforts to dissuade adults from engaging in sexual activity with children continued throughout the seventeenth century, and from the eighteenth century it became common for little children to be discouraged, even punished, for playing with their genitals or masturbating. Close supervision, punishment, restraints, and surgical procedures such as circumcision and clitoridectomy were employed to prevent masturbation (Rachford 1907).
From early on, circumcision was recognized as a means of contributing to the control of male sexual passion. Philo wrote in the first century that circumcision was for "the excision of passions, which bind the mind.... The lawgivers have commended that this instrument . . . be mutilated, pointing out, that these powerful passions must be bridled, and thinking not only this, but all passions would be controlled through this one" (DeMause 1974:526).
Procedures for controlling child sexuality continued into the twentieth century and included circumcision and a protective and repressive posture toward child sexuality. The protection paradigm, still a predominant paradigm in the Western world, when applied to child sexuality means that a properly raised child shall observe no sexual activity, shall hear no sexual talk, and should not be involved in any sexual activity. A major change in the protection paradigm was instituted in the latter half of the twentieth century, when sex education was introduced in school curricula in Western countries. Sweden was the first country to require comprehensive sex education for all children beginning in the primary grades. Even today, comprehensive sex education for all children beginning in the primary grades is not common practice in all countries in the West (Jackson 1982).
Historically, there has been a change in child sex laws and judicial procedures. According to the Dutch jurist Brongersma, the idea that sex in itself could harm a child was absent in European culture, and hence penal law was silent on the matter until fairly recently. "Children were on equal footing with adults, protected against rape, violence, and abuse of authority, but never against sex as such" (Brongersma 1984:80). This was the situation in the Netherlands up until 1886, for instance. During the nineteenth century, penal codes were extended with a new provision against indecent behavior with children. The concepts of age of consent and statutory rape came into use. Child sex laws have been clearly shaped within the dictates of a protection paradigm.
According to common law (law based on custom and precedent), an infant reached full maturity at twenty-one years of age. The concepts of minority and majority rest on the assumption that children, called infants or minors, are incapable of self-management-management of property, management of their sexuality, etc. Age of minority is a matter of legislative regulation, and hence a status rather than a fixed or vested right, and is subject not only to be fixed by legislative action but also to be changed (Ginnow and Gordon 1978). Today, legal age in the various European, Asian, Latin American, and North American jurisdictions varies from age eighteen to twenty-one. A minor may become emancipated at an earlier age through voluntary, parental, legal, or judicial action in some jurisdictions, and in many countries marriage of a minor is sufficient to bestow legal status.
The crime of statutory rape is defined as rape not necessarily because the younger partner was forced or coerced into engaging in a sexual act or because the young person did not consent to engage in the sex act, but because legally the person was not of the age to have his or her consent recognized by the court. In other words, minors are defined as incapable of giving consent. Societies have struggled with their attempts to determine fixed ages below which a child, though old enough to engage in certain sexual acts and personally mature enough to consent to the activity, is not deemed mature enough to give informed consent to engage in a sexual act. To date no generally accepted age has been determined.
In the 1800s in England the age for statutory rape was as young as ten years; today the age is sixteen, with physical rather than chronological maturity used to justify leniency or acquittal at court. There have been statutes setting the age at from twelve to eighteen in the United States; and the Model Penal Code drafted in 1962 after approximately ten years of study by the American Law Institute settled on the age of ten (Dolgin and Dolgin 1980). Since minors cannot give consent, consent is an irrelevant consideration, and at court penalties for having sex with a person below the age of consent — statutory rape — are among the most severe handed down in any cases of rape.
In the United States there is a diversity of sex laws and penalties for their infringement among the fifty states, but every state has some legislation designed to protect children from sexual activity. Such activity is always given a negative label — such as sexual abuse or statutory rape — and the child, being below the age of consent, is labeled the victim. His or her older partner is labeled the perpetrator. Impairing of the morals of a minor, lewd acts, obscenities, and indecent exposure may be defined as misdemeanors, and abduction of minors for sexual use, carnal abuse, genital contact, and forcible or statutory rape may be defined as felonies.
It is difficult to deal with cases of sexual activity involving children within the judicial system.
Since witnesses and corroborating evidence are commonly not available, the prosecutor's case often depends almost solely on the child's testimony. Can a child too young to give consent, supposedly too naive to know what is going on or why it is going on, be sophisticated enough to give testimony? Furthermore, can a child who has seen no other sexual activity, heard of none, and not experienced any but that involved in the case in question be subjected to the rigors of an adversarial proceeding?
There is concern about this, and the courts go to great pains to secure the needed evidence while at the same time attempting to minimize psychological trauma suffered by the child during the criminal trial process. Lawyers and judges refer to the "trauma" of the child who must face many strangers in the criminal system, and to the child as a "psychologically sensitive victim" (Oseid 1985:1380). In most jurisdictions in the United States, a trial judge may make a finding of competency when convinced that a child witness can intelligently relate the facts, distinguish between the truth and lies, and understand the importance of an oath or the consequences of lying.
Not all persons subscribe completely to a protection paradigm in dealing with children, though some elements of protection must be a part of any paradigm because of the high level of dependency of human offspring from birth and at least for several years. Socializing is still the major mode of child rearing in the West. A major competing paradigm is the personal paradigm.
A number of fists of essential rights of children have been proposed within this personal paradigm. Most of them appeared during the 1970s, the time of an early aborted Children's Liberation Movement in the United States (Farson 1974; Foster and Freed 1972; Gross and Gross 1977; Holt 1974).
All proponents of children's rights would grant to children the same rights as are granted to adults, including the right to choose guardians and living arrangements, to exercise political and economic power, and to receive information; and some would grant the right of sexual freedom (Calderone 1977; Farson 1974; Gross and Gross 1977).
According to Calderone, the fundamental sexual rights of children would include the right to know about sexuality, the right to be sexual, and the right of access to educational and literary sexual materials. In part, the personal paradigm is based on the belief that the child knows better than the adult what it needs at each stage of its life and that adults, particularly parents, interact with the child in such a way as to empathize with and fulfill the child's particular and expanding needs. Nowhere in the West are child-adult sexual acts generally regarded as a right; the child's right to masturbate and the right of children to engage in sex play and other forms of intimacy with each other is most clearly recognized in certain Scandinavian countries (Aigner and Centerwall 1984).
Legislative trends tend to shift in concert with other social changes, but there is likely to be considerable lag when law and judicial decisions are involved. Both tend to express the specific, concrete concerns and the social policies of a past generation. This is particularly true in regard to child law and judicial decisions, since child law is created and enforced by an adult population and not necessarily a population in tune with or empathetic to the needs and interest of children. Considerations of paternalism are especially strong in child law as adult lawmakers and enforcers attempt to protect what are regarded as weak, innocent and hence potentially exploitable children.
For example, the state of California has no less than eight different statutory proceedings that can affect the custody of a child. The concept that is supposed to take precedence in awarding custody is the best interest of the child (Child 1982). It is a moot question how much input the child has in assessing his or her best interest, for the custody statute is silent on some important issues and is vague on others. This, along with a collection of inconsistent court opinions for precedents, means that judges may do with their discretion virtually whatever they will. According to Dolgin and Dolgin, judges are "generally prosperous, male, members of the bar, over 60" inclined to provide interpretations that reflect and sustain their own experiences (Dolgin and Dolgin 1980:220).
One might expect that given arbitrary age of consent statutes regulating child sexual behavior, there would be little room for discretion or change short of changing the age of consent. This is not necessarily the case. The concept of variable competence is a case in point. Is it possible for a pre-pubertal child to give consent to participate in sexual activity with an adult, for instance?
According to the concept of variable competence introduced in recent years, a child who has not reached maturity may under certain circumstances make decisions. The concept of variable competence assumes that a normal child has a conscious mind; that he or she is rational, not delusional; can accurately enough perceive the situation and his or her place in it; and has sufficient intelligence and experience to determine what is in his or her best interest. In other words, a child may be able to give informed consent before having reached the age of majority. For instance, it has been argued that what matters is whether the minor knows what he or she is doing at the time of a sexual encounter, not chronological age. In some states, lack of chastity is admissible evidence. Kalvin and Zeisel, in The American Jury (1966), reported that they found no underaged females in their sample of statutory rape cases that had not had previous sexual experience.
Physical maturity may also be a variable consideration. In England today, for instance, the age of majority for statutory rape is sixteen, but physical maturity has been used in justification of leniency or acquittal in statutory rape cases (Rush 1980).
Some legalists argue that statutory rape laws not only deny the young the same sexual rights as those granted to adults, but also treat underaged females and males differently.
This concept of equality has prompted some states to grant immunity from statutory rape charges to under-aged males. In Maryland, statutory rape cannot be committed by anyone under eighteen, and several jurisdictions have extended immunity to all males under age twenty-five. Some states affirm that a male who has sexual intercourse with a female under sixteen, if he is only four years older than the female, is not guilty of a lesser offense such as corrupting the morals of a minor. According to the 1975 FBI Crime Report, arrests for statutory rape appear to be almost nonexistent.
Another concept that has helped contribute to the relativization of the application of child sex law is that of functional incest. The supporting rationale for the concept is that sometimes incest is functional to the preservation of the family (Farson 1974). This view is consistent with a number of thinkers in Europe and in America who think that the dangers of sexual activity within the family (incest), even that involving the parent and offspring, may have been overstated.
Tolerance of pedophilic relationships both in support of the pedophile and the boy partner has also been counseled, not only by pedophile organizations such as Pedophile Information Exchange (England) and Man/Boy Lovers of America, but also by professionals and scholars such as Ullerstam (1966) in Sweden and Brongersma (1977) in the Netherlands.
There have also been interpretations of the law that protect the right of privacy for minors that could be construed to cover even their freedom to engage in sexual activity. In discussion of a New York statute concerning consensual sodomy, Judge Taylor (New York Law Journal, in Re P, January 23, 1978:12) argued that private, intimate, consensual sexual conduct not harmful to others does not violate public morality and is protected by the right to privacy, and that a minor cannot be treated as a delinquent by the courts if the behavior in question is legal if carried out by adults.
Changes in attitude, both professional and legal, regarding child sexual activity, as discussed so far, suggest a more permissive attitude toward such activity. But the protection paradigm is still strong in Western societies, especially among religious groups. There have also been changes in perspectives on child sexuality stimulated by the discovery of a large incidence of child sexual abuse both outside of and within the family. Parents, professionals, and legislators are calling for and enacting greater surveillance, more restriction, and surer punishment for perpetrators of child sexual abuse. For every person who has argued in favor of greater sexual freedom for children, there are a host of others who have argued for even greater protection and restrictions.
Primarily to help eradicate child sex abuse, child sex law has gone through changes designed to monitor more closely behavior of all adults, but especially suspected child abusers, through a system requiring reporting of suspected abuse — reporting by teachers, doctors, and other professionals who deal with children — and through criminalizing more adult-child intimacy and sexual activity.
Several attempts have been made to define what constitutes child sexual abuse. According to the U.S. Child Abuse Prevention and Treatment Act of 1974, child maltreatment is defined as "the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of 18 by a person who is responsible for the child's welfare under circumstances which indicate the child's health or welfare is harmed or threatened thereby" (Public Law 93-247, 93rd Congress Senate 1191, 1974). A 1978 amendment to that Act authorized the National Center on Child Abuse and Neglect to address the problem within a broader context.
In subsection 5(3) of the Act as amended, the term sexual abuse includes "the obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution, or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened thereby" (Congressional Record House, p. H2647, April 10, 1978).
The National Center for Child Abuse and Neglect adopted a tentative definition of child sexual abuse as "contacts or interactions between a child and an adult when the child is being used for the sexual stimulation of the perpetrator or another person. Sexual abuse may also be committed by a person under the age of 18 when that person is either significantly older than the victim or when the perpetrator is in a position of power or control over another child."
Child protection and pornography legislation of 1984 further criminalized sexual activity in which children are involved. Federal laws against the production and distribution of pornographic materials involving children raised the age of consent from sixteen to eighteen, removed an existing requirement that sexually explicit materials depicting children be obscene before they may be banned, and banned the production and distribution of child pornography regardless of whether it was commercially disseminated (HR3635-PL98-292). According to Money (1985:85), "strictly speaking, the law makes it a crime for parents to send their baby's grandparents a nude picture of the baby, genitals exposed in the bathtub."
Through the monitoring of child-adult behavior by other adults, it is possible that some cases of child sexual abuse come to light and are treated. It is also possible that the laws and monitoring deter others from abusive sexual practices. Such outcomes are positive and should be applauded. But because of the vagueness and inclusiveness of the definitions of sexual abuse, there is also some danger that increased monitoring and criminalizing of intimate encounters in which children are involved may also have negative effects. VOCAL (Victims of Child Abuse Laws), for example, is a group of adults who organized in part to counteract the overzealous attempt to expose child sex offenders. The definition of what is appropriate intimacy between an adult and a child can be a moot question given the zealous attempt to improve the situation. As Brant and Tisza (1977) have stated it,
tender fondling by the parents may transgress strict boundaries; in the twilight state of mutual affection, unconscious wishes and vivid fantasies may emerge, and incest may become an emotional experience for a child even without direct genital contact ... [I]t is hard to define the point at which pleasurable stimulation is experienced as over stimulation, and the child, flooded with excitement, feels overwhelmed and helpless, fears loss of control, and becomes symptomatic. It is difficult to ascertain at what point an experience engenders an individual child's reaction of anxiety and guilt. (Brant and Tisza 1977:85)
In sum, some sex involving minors is being decriminalized and some is being criminalized at the present. As U.S. society is doing what it can to protect children from exploitation, it may also limit children's expression of their sexuality through the legal restraints put on parents and other of the child's potential partners in intimacy. Carolyn Swift testified on sexual assault on children and adolescents before a subcommittee of the U.S. House of Representatives. She stated that children are the least articulate and most exploited population "suffering from society's failure to confront realistically the phenomenon of human sexuality" (testimony proposed for the Subcommittee on Science and Technology, January 11, 1978).
Several consequences grow out of society's reluctance to confront realistically the phenomenon of human sexuality:
(1) the lack of willingness to fund research on children's sexuality;
(2) the unwillingness to inform children about human sexuality, including their own sexuality;
(3) the decriminalization of sexual activity, and therefore the exposure of children to exploitation; and
(4) the criminalization of other aspects of sexuality, and therefore limitation of the opportunity for erotic and sexual experiences of children.
Despite limited societal interest in finding out the nature of child sexuality and the lack of funding of child sex research, there has been a slow increment in knowledge of child sexuality (Constantine and Martinson 1981; Samson 1980). It is now becoming common in the Western world to grant that children are sexual, though they may still be denied full rights to behave sexually. Compared with earlier decades, perhaps most parents today accept that children masturbate and agree that it is all right; many would allow their young children to engage in some peer sex play and exploration; but perhaps most, even advocates of children's rights, might be expected to rule out child-adult sexual activity.
Both conservatives and liberals agree that clear breaches of sexual etiquette that are infringements of basic rights and are physically and psychologically injurious to children, such as rape, should be punished. But otherwise the conservative and liberal views on child sexuality are likely endpoints on a continuum with many shades of difference in between and with the unaligned majority leaning toward either polar position or finding themselves somewhere in between (Scanzoni 1983).
There is a large gray area constituting what types of intimacy are appropriate, healthful, and enjoyable for children — the large gray area between tender loving care at one end of the continuum and rape at the other. There is also profound disagreement on the importance of consent, what consent means, who is mature enough to give consent, and whether consent laws (beyond the protection against violation and abuse granted to all citizens) are necessary. In other words, the issue of consent remains remarkably difficult.
Strong support for the conventional sexuality, even the authority system of the patriarchal family, comes from the so-called Christian Right, which is vocally and politically active both in the United States and Europe. Respect for authority is central to the perspective of the Christian Right the child's respect for the authority of his or her parents, the wife for the husband's authority, and the husband for God's authority. There are eight causes of today's family breakdown according to LaHaye and LaHaye (1978), who speak for the Christian Right, and several of them are particularly hazardous for children and the sexual upbringing of children — the dominance of atheistic, anti-Christian humanism in schools and the media; sexual immorality and promiscuity; legalization of pornography; and a permissive philosophy of child rearing. In the United States, the Christian Right and other elements of the conservative movement have demonstrated substantial political power in crippling sex education programs in the schools.
Turning now to the liberal pole, departures from a conservative stance are not new (Blatz 1944), nor in some ways are they as conspicuous as they were in the short-lived Child Liberation Movement of the 1970s in the United States. It may sound at first blush as though the liberal jurist Brongersma is speaking the same language as the Christian Right when he states that "we fight only for the right to be more human and the right of the young ones to be loved" (Brongersma 1977:4). But the love Brongersma refers to includes erotic and sexual love, and the Christian Right would reject the statement as both humanistic and sexually aberrant.
Liberals draw heavily on recent and current research on the sexual nature of the child and child sexual experiences and generally support children's rights. As Constantine (1983:258) stated, "If they are considered to be sexual beings with the rights to express themselves sexually, then not all sexual contact between adults and children can be categorically depressed as abuse."
In the Netherlands, for example, the National Council for Mental Health, a federation of all mental health agencies, after a two-year study concluded that sections of the penal law directed against sexual activities with a consenting partner, whatever his or her age, should be abolished.
According to Constantine, a rationalized legal framework that recognized the right of the child to a free choice of sexual partners would entail informed consent and participation of the child and would exclude the use of force, coercion, or psychological pressure:
If the child was not fully knowledgeable of the nature of the sexual activity or was demonstrably not capable of informed consent, or if any force or coercion was employed, sex between an adult and a child would constitute rape of a minor. A statement by a minor that he or she did not feel free to refuse should be a prima facie case for rape. An extra burden would thus appropriately be placed on the physically and intellectually more powerful adult to assure that the participation of the child was both informed and voluntary. (Constantine and Martinson 1981:259)
Will the future bring any notable shifts in perspective on children a children's rights and freedom, including sexual rights and freedom either the conservative or liberal direction? The conservatives clearly appear to better organized, more tenacious, and have more political clout than the liberals. On the other hand, programmatic fragmentation characterizes the liberals. According to Scanzoni (1983:197), "progressives have been unable to conjure a vision of family comparable in scope, coherence, and persuasiveness to that of the conservative visions." This is not the situation in so of the Northern European countries, where social democrats have fair well-articulated perspectives and political programs on the family, on child care, and to some extent even on sexual rights of children. But the issue goes deeper than vision, persuasion, and organization, of course.
Fundamental change in perspective on childhood might well require a reconceptualization of childhood (Gil 1974). Such a radical transformation from protection to personal paradigm with respect to children's right is unlikely to occur in the West in the foreseeable future. The social system involved generally subscribe to protective paradigms. Nor will legislation and the courts institute marked change away from child sex law the emphasizes protection of children to child sex law that emphasizes protection of their rights and freedoms, for legislative and legal trends tend to shift in concert with other social alternatives. From a different perspective, whereas the law is inclined to preserve the past while reflecting current socio-cultural consensus, researchers who a committed to social justice for all and who conceive of social science as a tool in the struggle for human liberation conduct studies of alternative social patterns and lifestyles that may challenge prevailing assumptions and that hold promise for human existence freed of potential injustices in the prevailing social order.
Historians of childhood in the Western world have focused on what they regard as marked changes in conceptualization of the child, children's rights, and child rearing — from the lack of a concept of children as a separate entity, great cruelty to children, and obsession with discipline in the sixteenth century, to more human methods of discipline in the mid-eighteenth century (Pollock 1983). Pollock (1983), using over 500 diaries, autobiographies, and manuscripts from the sixteenth to the eighteenth century, concluded that there have only been slight changes in the conception of childhood and great variety in child care patterns in each century.
The link between child-rearing behavior and societal values placed on the child may be more complex than realized. The dependent nature of children and the nature of parenting may be impervious to socio-cultural values.
If the first aspect of the child's right to sex freedom is his or her right to information about sexuality, then there is evidence that children have gained some ground. Studies in the last few years show that a majority of parents want their children to have sexual education. But a program of comprehensive sexual education for all children is too much to expect, given the protective perspective on children prevailing in the United States and in some European countries (Jackson 1982).
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