Essay:Minor

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A minor is a person who has not yet reached the age of majority. In most developed countries, minors are subject to certain restrictions not applicable to non-minors. For example, they may be prohibited from voting, working at certain jobs, drinking alcohol, or staying out in public after curfew. They are usually required to either obey their parents or, if their parents have died or they have been taken away from their parents, another legal guardian. These parents and guardians are allowed to impose corporal punishment, restrictions on freedom, and other penalties in order to impel the minor to obey. The parent or guardian is also required, however, to provide for the child; failure to do so may be considered child neglect, which in some cases is punishable by imprisonment.

Non-minors are sometimes affected by laws regulating minors, and minors are sometimes regulated by laws regulating non-minors. For example, the fact that a 14-year-old is not allowed to drive a car means that a parent cannot send that child on an errand that requires driving. Likewise, the fact that an employer is not allowed to hire that 14-year-old limits that 14-year-old's options for obtaining income.

Government restrictions on minors make minors at least partly government property. This is because "as a sociological category ownership appears as the power to use economic goods."[1] If the government prohibits children from working and requires them instead to attend school and do homework, then the government has assumed ownership over at least some of the child's labor. Hence American Bar Association President Clarence E. Martin's comment that the child labor ban proposed in the 1920s was "a communistic effort to nationalize children, making them primarily responsible to the government instead of to their parents. It strikes at the home. It appears to be a definite plan to destroy the Republic and substitute a social democracy."[2]

There are good reasons to question whether government is best suited to exercise a role of sovereignty over another individual, especially a defenseless child. Joseph Sobran notes that many behaviors the government engages in, such as abrogating contracts, breaking promises, engaging in violence, and lying, would be considered child abuse if practiced by a parent.[3] Government officials lack the same genetic connection to the children they regulate that family members have, and therefore are unlikely to offer them the same motherly, fatherly, or brotherly solicitude. As Mises points out, Plato believed that preventing people from knowing which children's parents they are will inspire them with parental feelings toward all younger people, but Aristotle observed that the result will rather be that all parents will be equally indifferent to all children.[4]

The helplessness of young people is also used as an excuse to promote welfare programs. As Michael Levin points out, "'children"s activists' are using neglected children as shields in a game of moral blackmail, displaying these children to quicken unwarranted guilt and then promising to lift this guilt on condition that parenthood is socialized."[5] The right to life is a right not to have one's life forcibly ended by an aggressor; it is not a right to receive goods or services through the enslavement of others.[6] This is true regardless of the age of the beneficiary.

The misery of youth's relegation to idle consumerism

Many young people, feeling the restlessness that comes with their newfound physical and intellectual strength and sexual maturity, feel full of energy and eager to leave childhood behind and move on to adult life. As Neil Strauss points out, "A man has two primary drives in early adulthood: one toward power, success, and accomplishment; the other toward love, companionship, and sex."[7] These natural desires can grow to great strength well before the age of majority, and their frustration often produces misery. Sometimes this manifests in acting out in destructive ways. The lack of freedom to work, to pursue one's dreams, to seek the destiny one wishes for oneself, may account for much of the juvenile delinquency that occurs. Young people, tending to be more passionate than older people, may feel the pain of government oppression particularly strongly.

Centuries of capitalism have bred into the human spirit a strong drive to produce, to take on the challenge of satisfying consumers and competing for a desirable position in the social division of labor. Young people tire of being consigned to boring, repetitive schoolwork assigned by bureaucrats. They want to feel the pride of real-world achievement and independence rather than being disallowed the freedom to make contributions of such quality that others willingly pay for them. As a result of the impingements on their freedom, young people experience the cringing meekness of being one who must live off of handouts and is accordingly relegated to existing at the bottom of society's hierarchy as a "dependent."

It is, perhaps, for this reason that so many seek escape into novelized, comic book and movie fantasies of young people who miraculously acquire superpowers with which to transcend the limitations of our over-regulated world and accomplish some good. Ayn Rand writes, "Whatever their future, at the dawn of their lives, men seek a noble vision of man’s nature and of life’s potential. There are very few guideposts to find. The Fountainhead is one of them. This is one of the cardinal reasons of The Fountainhead’s lasting appeal: it is a confirmation of the spirit of youth, proclaiming man’s glory, showing how much is possible.”[8]

Robert Epstein points out, "American-style teen turmoil is absent in more than 100 cultures around the world, suggesting that such mayhem is not biologically inevitable."[9] The evidence suggests that teenagers engage in risky behavior simply because they are trying out more adultlike roles.[10] Society could completely eliminate all risks associated with sex and with driving vehicles by banning all sex and all vehicles. But that would disregard any possibility that the benefits of freedom might outweigh the costs. For some reason, the voters and legislators seem willing to focus only on the drawbacks of freedom when it comes to minors. To deny minors their freedom is to hinder their development into mature humans, equipped to meet the demands of a life that will require making choices for themselves. Rothbard points out:[11]

Perhaps a world exists somewhere where intelligent beings are fully formed in some sort of externally determined cages, with no need for internal learning or choices by the individual beings themselves. But man is necessarily in a different situation. Individual human beings are not born or fashioned with fully formed knowledge, values, goals, or personalities; they must each form their own values and goals, develop their personalities, and learn about themselves and the world around them. Every man must have freedom, must have the scope to form, test, and act upon his own choices, for any sort of development of his own personality to take place. He must, in short, be free in order that he may be fully human.

Arbitrariness of ages of majority

The age of majority is rather arbitrary.[12] Humans are not like, say, appliances or other machines that go from being unable to operate at all during the beginning and intermediate stages of assembly, to being suddenly able to fully function according to specifications once the manufacturing process is complete. They are more like wikis that evolve over time from something very small into something larger and capable of meeting more human needs, yet without ever reaching perfection.[13] As humans develop from a zygote into an adult, they go through many stages of physical, mental and sexual development. As Robert Epstein points out, formal operational thinking, intelligence, recognition time, memory, and brain volume tend to peak in early adolescence and decline thereafter.[14][15] However, no human ever reaches a state of being able to perfectly weigh the costs and benefits of all options and arrive at optimal solutions in every situation. Further, no human is ever able to provide for every need he might possibly wish to have satisfied. In fact, after peaking in youth, such abilities may even decline with age, as intellectual and physical powers begin to wane.

Ludwig von Mises points out that "it is one thing to divide human life into childhood, youth, maturity, and old age, it is another to reveal the law which governs the growth and decay of the organism. A certain arbitrariness attaches to every theory of stages. The delimitation of the stages always fluctuates."[16] It is suboptimal to impose a delay in allowing a person liberty that he would be capable of using in ways that would increase satisfaction above what it would if his liberty were restricted. For example, it would be a bizarre state of affairs if "a fifty-year old adult would be subject to the absolute and unquestioned jurisdiction of his seventy-year-old parent."[12]

At what point in development, then, should it be considered expedient for a child to be allowed to enjoy the same rights, and be subject to the same responsibilities, as adults? According to Murray Rothbard, a newborn baby cannot be an existent self-owner in any sense; rather, the mother, as creator of the child, is the child's owner. This ownership is not absolute, but of the nature of a trusteeship or guardianship, limited in time. The parent may not commit physical aggression against the child, but also has no legal obligation to feed, clothe, or educate the child, any more than the mother had a responsibility to continue providing a home for the unborn child in her womb if she did not want to any longer and preferred to expel the child via abortion instead. Rothbard held that the child has his full rights of self-ownership when he "demonstrates that he has them in nature—in short, when he leaves or 'runs away' from home."[12]

Some of the restrictions simply do not make much logical sense. For example, the restrictions on sex are often based on the idea that minors are too young to understand sex and its consequences. Yet the essentials of these subjects are not particularly complicated. It does not take much class time, or require a very lengthy book, to explain the body parts involved, how they interact, the potential costs and benefits of these acts, and what steps can be taken to mitigate the risks. And it is fairly easy for even a young person to tell, by tactile sensation, what physically feels pleasurable or painful. That provides at least some limited feedback as to what might be immediately harmful.

One hurdle to minors' making good use of such knowledge as they possess about the possible negative consequences of sex and their prevention is that minors are sometimes not allowed to make their own health decisions (such as obtaining certain forms of birth control) without parental consent or assistance. This is due both to legal restrictions on the practice of medicine and to restrictions on minors' ability to earn their own money, although in the case of child-adult sex, the latter concern may be alleviated somewhat by the adult's ability to pay. The advocates of restrictions have not explained how a young person who gives informed consent; who experiences pleasure (or at least does not feel pain); and who is successfully protected from pregnancy, infection, or other unwanted bodily phenomena, will be psychologically traumatized by the experience, if societal messages do not tell the person that he should feel traumautized.

Compulsory education

Children educate themselves through their experiences with their environment. Formal education is only needed in certain areas. As Rothbard points out, home-schooling is ideal because "parents' daily familiarity with, and love for, their children, renders them uniquely qualified to give the child the formal instruction necessary."[17] Furthermore, some children may find the authority of their parents relatively benign compared to that of a state bureaucracy. Albert Einstein writes, "It is, in fact, nothing short of a miracle that the modern methods of instruction have not yet entirely strangled the holy curiosity of inquiry; for this delicate little plant, aside from stimulation, stands mainly in need of freedom; without this it goes to wreck and ruin without fail. It is a very grave mistake to think that the enjoyment of seeing and searching can be promoted by means of coercion and a sense of duty."[18]

Discipline

Parents are allowed to spank their children as a means of imposing discipline. Such corporal punishment violates the non-aggression principle if the child is not given an opportunity to withdraw from the family rather than accept the discipline it demands as a condition of remaining a member. It is, however, fully in accordance with libertarian principles for the parent to say, "Either accept this spanking, or you will not get any supper." The parent provides the supper as a gift and is therefore free to withhold it for any reason, including failure to submit to corporal punishment.

Nonetheless, the wisdom of spanking is questionable. Research indicates that that children's short-term response to spanking may make them act out more in the long run. Of the nearly 2,500 youngsters in a Tulane University study, those who were spanked more frequently at age 3 were much more likely to be aggressive by age 5. Those children were more likely than the nonspanked to be defiant, demand immediate satisfaction of their wants and needs, become frustrated easily, have temper tantrums and lash out physically against other people or animals. An alternative is to put the child in time-out. This need not necessarily mean forcing the child to unproductively sit in the corner. It could simply mean that the parent withdraws from the child, denying the child any interaction, positive or negative, for a specified period of time.[19]

As with spanking, the parent cannot, without violating libertarian principles, force the child to go to his room. However, again, the parent can threaten to withhold gifts (including the privilege of being allowed to remain in the family and to receive what the parent provides the child free of charge) if the child refuses to comply with the discipline. Perhaps some sort of reflective exercise, such as having the child write an essay about his thoughts concerning the situation, would be an appropriate way to encourage productive, and possibly creative, solutions to the disciplinary problem. Or in some cases, one could simply talk with the child about one's concerns and attempt to come up with a prospective solution; it may not always be necessary to formally impose punishment for the past.

It might be argued that expelling a child from the home will cause resentment leading to aggression. Evidence for this view has not been presented, although there is a certain logic to it. However, there is also logic to the argument that if a parent would kick his child out of the home, the separation might be for the best anyway; it could indicate some major incompatibilities. There may be no particularly good outcome than is likely to result from such situations.

Sexual restrictions

History

Historically, there are more age-related restrictions on sex now than in the past, when it was not uncommon for men and especially women to marry in their teens. Melanie Griffith, for example, was 14 years old when she married Don Johnson. The Jewish faith allows men to marry at 13 and women at 12.[20] In Latina culture, the quinceañera celebration at the young woman's 15th birthday historically signalled transition from girl to señorita and availability for marriage, and the legal age for marriage in many Caribbean and Latin and Central American countries is, or until recently was, fifteen or younger for females, sixteen or older for males.[21] Ronald Hamowy writes:[22]

With respect to rape, "carnal knowledge of a woman without her consent", it is notable that, during the 19th century, the age below which a female was presumed by law to be unable to consent was, in most jurisdictions, 10 years. Thus, the current crime of statutory rape — which is not really rape at all — effectively did not exist throughout most of the century since the penal codes defining rape either stipulated 10 or 12 years as the age of consent or were silent on an age of consent, in which case the common-law age of 10 years would apply.

England's first statutory rape offense, enacted in 1275, protected only females under the age of 12. In 1576, during the reign of Elizabeth I, the protected class was reduced to females under the age of ten. The American colonies imported this statutory scheme. The idea behind them at that time was to protect white females and their premarital chastity, which was considered particularly precious. Under customary dowry practices, a non-virgin was considered less desirable for marriage and therefore less likely to bring financial reward to her father upon marriage. Accordingly,the statutory rape victim's being unchaste, promiscuous, or not a virgin was codified as a defense in every state.

In the late nineteenth century, "an odd coalition of Victorian feminists, Socialists, religious groups, and Progressives" successfully mobilized to raise the age of consent.[23] In the 1970s, gender-specific statutes gave way to gender-neutral statutes, and the promiscuity defense was abolished. As a result of these reforms, the new "protected" class includes not only chaste nine-year-old girls, but also sexually aggressive seventeen-year-old males.[24]

During the time of these changes, feminists tended to split into three schools of thought. The liberal feminists, often members of the National Organization for Women, supported gender neutrality and age-span provisions mandating that the perpetrator be a certain number of years older than the victim. The sex radicals or pro-sex feminists saw statutory rape laws as violating privacy and personal autonomy and feared (correctly) that gender-neutral laws would increase discrimination against homosexuals by allowing them to be prosecuted for statutory rape. The radical feminists believed that consent to sex could not be genuine even among men and women of similar ages, given male and female social and economic inequality.[25]

Judith Levine explains, "The law encodes an enduring sexist idea — that in sexual relations there is only one desiring partner, the man. In romantic language, we call him the seducer and her the debauched, or fallen woman; in the contemporary cross between gothic metaphor and sociobiological jargon, he is the predator and she the prey; in legalese, he is the perpetrator and she the victim. In all one person is guilty and the other innocent. Age, especially when the partners are close in age, often serves as a stand-in for other assumptions about gender. The man is allowed to desire, but he is also suspected of being sexually predatory by masculine nature, and thus morally indictable. That he's older makes him legally indictable. . . But statutory rape is not about sex the victim says she did not want. It is about sex she did want but which adults believe she only thought she wanted because she wasn't old enough to know she didn't want it. Still, teen girls persist in expressing their own desires."[26]

How many other transactions might the State prohibit on grounds that we only think we want them because we are too ignorant to know what is good for us? The person who in a capitalist system is considered to be a useful, productive citizen, of benefit to those who seek to conduct transactions with him, and judged worthy of the rewards he accumulates from willing participants, is considered under socialist and interventionist systems a criminal suitable to be punished and destroyed. The State, not the individual concerned, becomes the arbiter of what is best for that individual, in violation of Mises' principle that "the characteristic mark of ultimate ends is that they depend entirely on each individual's personal and subjective judgment, which cannot be examined, measured, still less corrected by any other person. Each individual is the only and final arbiter in matters concerning his own satisfaction and happiness."[27] Where a statist philosophy prevails, the State assumes ownership over even the human body, and claims the right to decide how it should be used.[28]

Enforcement

The majority of those prosecuted for age of consent violations are in their teens or early twenties. Frequently, the terms of probation bar the older partner from contact with the minor, even if they have had children together. The younger partners have sometimes expressed indignation against the legal system, as in the case of 18-year-old Kevin Gillson's 15-year-old fiancee, who stated, "Thanks to the court system, I have lost the love of my life and the father of my unborn baby"; 30-year-old Heather Ingram's 17-year-old boyfriend, who stated "The idea that Heather exploited me is crazy . . . I consider Heather my girlfriend"; and Vili Fualaau, who stated with reference to Mary Kay Letourneau, "She wasn't taking advantage of me or talking me into something that I didn't want. I loved Mary. She and I had a deep, spiritual relationship."[29] Sometimes the younger partners face charges for contempt of court for refusing to testify.[30] The older partner may also be placed on a sex offender registry and forbidden to have any contact with his children, is in the case of 19-year-old Frank Rodriguez, who had sex with Nikki Prescott, his eventual wife, while she was 15.[31]

The statutory rape laws are selectively enforced, with prosecutors more likely to bring charges against, and punish more harshly, same-sex age of consent violators. One of the reasons is that parents of a teen engaging in a same-sex relationship are more likely to be feel uncomfortable about the situation and report it to authorities.[30] Consensual sex of and with adolescents over 14 years has been identified as a gay rights issue.[32] The National Coalition of Gay Organizations Convention held in Chicago in 1972 adopted a platform calling for "Repeal of all laws governing the age of sexual consent."[33] In recent years, the gay rights movement, in an effort to gain mainstream support, has attempted to distance itself from the pederasty legalization movement,[34] for example by expelling NAMBLA, MARTIJN, and Project Truth from the International Lesbian and Gay Association by a vote of 89 percent at the 16th ILGA World Conference in 1994.[35] As NAMBLA spokesman Roy Radow pointed out, this represented a departure from ILGA's prior support for abolishing the age of consent in recognition that "same-sex age-of-consent laws often operate to oppress and not to protect".[36]

In about 20 European nations, the age of consent is lower than 16. The minimum age (with some qualifications) is, for example, 13 in Spain; 14 in Germany, Austria, Portugal, Italy and the Vatican (where it was 12 until very recently); and 15 in France and Poland. According to political campaigner Peter Tatchell, "There is no evidence that these lower ages result in more teen pregnancies, sexual infections or child abuse."[37]

The roots of federal child pornography prohibition are similar to those of federal drug prohibition. In 1910, Hamilton Wright gave Congress the following warning about cocaine: "It was been authoritatively stated that cocaine is often the direct incentive to the crime of rape by the Negroes of the South and other sections of the country." Edward Huntington Williams, M.D., wrote that the Negro dope-taker became quarrelsome, a formidable marksman, and so difficult to kill that the police had to increase the caliber of their guns "for the express purpose of 'stopping' the cocaine fiend when he runs amuck." A 1914 Literary Digest article claimed, "Most of the attacks upon white women of the South are the direct result of a cocaine crazed Negro brain."[38]

Likewise, the child pornography laws were also prompted by dubious assertions. Child psychiatrist Judianne Densen-Geber and Sergeant Lloyd Martin of the Los Angeles Police Department vice squad traveled the country stoking outsized claims. Martin warned on a Christian television show that "pedophiles actually wait for babies to be born so that, just minutes after birth, they can grab the post-fetuses and sexually victimize them." He testified at the 1977 Congressional hearings that led to passage of the Sexual Exploitation of Children Act (18 U.S.C. §§ 22512253), the first federal law against child pornography.[39]

18 U.S.C. § 2256(1) defines a minor as any person under the age of eighteen years, so it is possible for a person who takes sexually explicit photographs of his 17-year-old spouse to be convicted of child pornography production, even if there was no state law against such conduct. The manufacture of such content carries a 15-year mandatory minimum sentence,[40] while receipt or distribution of it is punishable by a mandatory minimum sentence of five years in prison for a first offender.[41] The penalties have been substantially increased; in 1991, a first offender a with no criminal history who possessed violent child pornography images and movies and shared them with others would face a maximum of two years in prison in federal cases. Today, that same person could face more than 20 years.[42] One judge noted, "Our 'social revulsion' against these 'misfits' downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing."[43] In the United Kingdom, the analogous law is the Protection of Children Act 1978.

Arguments

The logic put forth for restrictions on minors' sexual activity seems, on the surface, to be similar to that behind parents' controlling what children eat. A small child will tend to put many objects in his mouth, some of which may be harmful. Despite the fact that he is physiologically capable of eating at that age, the parents closely watch and physically intervene to prevent him from eating anything harmful.

Libertarian principles allow this based on the fact that whatever the child is attempting to misuse, such as a bottle of bleach (by drinking it) or a road (by walking into automobile traffic) is generally another person's property (e.g. the parent or the road owner), and therefore it is acceptable for a person to assert property rights (either on his own or another's behalf) and thereby remove the child from danger. Sheldon Richman points out that "parents, as providers, are regarded as justified in setting rules for those who depend on them for shelter and sustenance. They may properly tell their children, 'As long as you live under my roof, I set the rules.'"[44]

The matter is a bit different in matters of sexuality, which involve the child's body, which is his property. Although minors are physically capable of engaging in sexual activities before reaching the age of majority, and even become capable of reproduction in early adolescence, the law does not permit certain sexual relationships involving minors below the age of consent. Thornhill and Palmer explain:[45]

Understanding why the age of sexual consent is legislated requires an understanding of why rules, including laws, exist: They arose from past selection for the ability to control others in the social environment . . . [R]ules — whether or not codified in law — generally serve the interests of the powerful. This means that they serve the interests of adults more than those of children . . . Females below a certain age are believed to lack mature judgment, and specifically to lack the ability to exercise adaptive mate choice. This is probably true of children and very young teenagers, so statutory-rape laws probably serve the interests of those individuals and their parents. Other factors, however, may be needed to account for the application of statutory-rape laws to older adolescents, who probably possess a sophisticated psychological adaptation for mate choice . . . Parents may try to manipulate, even coerce, long pre-sexual periods for daughters, thereby making them more valuable on the mateship market because men prefer to invest their parental efforts in women with restricted sexual histories . . . Although parents may say and believe that they are trying to control a daughter's sexuality because of her lack of age-related wisdom, such control may actually be an effort by the parents to get the daughter past the time at which she is most likely to develop a strong romantic attachment on her own, so that they will have a better chance of controlling her eventual marriage.

In many cases, the laws permit sexual activity between minors of about the same age, but disallow the same activity if one of the participants is many years older. The logic behind this is unclear, because the contact and resulting tactile sensations could be physically rather similar, regardless of the other participant's age. Ceteris paribus, the feeling that results from being touched by a 15-year-old's tongue, for instance, is probably much the same as that of being touched by a 25-year-old's. The 1998 Rind Report cast doubt on whether sexual contact between older and younger partners, in the absence of force, is necessarily psychologically traumatic.[46] The law normally assumes that an older person is more mature and better able to behave responsibly; hence the laws requiring a person to reach a certain age before he can vote, work, drive, drink alcohol, be out after curfew, etc. In the case of sex, the logic is reversed; once a person reaches a certain age, he is assumed to be no longer able to engage in behavior that would have been legal if he had been the same age as the minor participant, without harming said minor.

A survey of teenagers found that although teenage males were willing to date girls slightly younger than themselves, they indicated a much wider range of acceptability above their own ages, and also reported that their ideally attractive partners would be several years older than themselves. Preferences of teenage females were similar in pattern to those of adult females, ranging, on average, from their own age to several years older.[47] Similar trends have been observed in age preferences for homosexual partners.[48] Many young people prefer to associate with older people because they may have more resources, maturity, knowledge, experience, etc. They may be more respectful and serious.

Likewise, many older people prefer younger partners because they may have qualities such as curiosity, playfulness, energy, passion, open-mindedness, optimism, and a lack of emotional baggage. Young people tend to be more open to influence, which could result in higher compatibility on a personal level. Research indicates that large proportions of heterosexual men are sexually attracted to young pubescent girls and that such attractions are evolutionarily adaptive.[49] Youthfulness is associated with high fertility and possibly restricted sexual history, both of which characteristics are, in females, often of value in the mate market, the latter in many cases due at least partly to concerns pertaining to paternal certainty and sexually transmitted disease. Although female fertility typically peaks in the early 20s, female reproductive value typically peaks in the mid-teens and declines monotonically thereafter with age. Sociobiologically, the optimal preference for a male seeking a short-term mating partner would be a female in her early 20s, while the optimal preference for a male seeking a long-term mating partner would be a female in her mid-teens who shows cues of high reproductive value.

Either way, age provides a powerful cue to female reproductive capacity, and physical and behavioral features associated with youth, such as smooth skin, good muscle tone, lustrous hair, full lips, high energy level, and sprightly gait, provide cues to female reproductive capacity and therefore standards of beauty may have evolved to correspond to these features.[50] Since men's fertility drops off less steeply with age, women, by contrast, are more likely to be concerned about a potential mate's status and resources. In modern industrialized countries, this is often correlated with age; in the United States, men's earnings peak at age 45-54.[51]

As Guttmacher Institute Vice President Patricia Donovan notes, "it is not uncommon for adolescent women to pursue adult men. Adult men are more likely than adolescents to have a job, a car and money to spend."[52] In modern times, unemployment rates among young men particularly are rather high, with only 24 percent of U.S. teens having jobs.[53] In such circumstances, prohibiting sexually romantic relationships between older men and younger women seems not only a revolt against nature but against economics.

Money provides a convenient unit of calculation for inferring what people's value judgments are.[54] Let us assume that, as Judith Lewis Herman and other writers claim, children have sex because of nonsexual benefits (e.g. affection and care) that are offered to them in trade.[55] What is the monetary value of those benefits? If it is small, then it would be reasonable to assume that the perceived costs, such as disutility due to inherent unpleasantness of the task, are not so great as to require a very great incentive to induce the minor to participate. Indeed, if the child were willing to engage in sex without any other incentive being offered, one might reasonably conclude that the child finds utility in the sex itself that is sufficient to be worth the opportunity costs (e.g. the time sacrificed that could have been spent in other forms of play or work) and any other perceived drawbacks of the activity.

In a market in which children could freely choose among willing caregivers, it could become easier to determine, based on their behavior, what they perceive the costs of acquiescing to sexual requests of caregivers to be. If the child were to respond to sexual advances from a caregiver by switching to a caregiver who does not make those advances, but is greatly inferior in other respects, then one might reasonably conclude that the child is greatly averse to such advances. The current regulatory environment does not permit the measurable transactions of the market to generate that sort of information.

One might argue that children are not intelligent enough to make such decisions. But the choice of caregiver is a consumer decision, and even consumers of limited intellectual capacity typically are rather adept at identifying what products and providers satisfy them the most; as Mises points out, "However dull a man may be, he knows how to tell the difference between a cheaper shoe and a more expensive one, and to appreciate the usefulness of new products."[56] In point of fact, children tend to be rather opinionated about the perceived quality of their caregivers, and will often express a strong preference for one babysitter over another, for example.

Sexuality of prepubescent children

It is argued that prepubescent youths are incapable of experiencing the same kind of sexual pleasure that adults are capable of;[57] therefore, any sex they have must be the result of some sort of deception, coercion, or other manipulation, rather than from a desire to have sex. In the human species, a great deal of variety in sexual desires exists. For example, some people enjoy coprophagia, or at least are willing to engage in it under certain circumstances, while most find it so repulsive it would be quite hard or impossible to provide a sufficient for them to engage in it. Therefore, the statement that there is not a single prepubescent person in the world who does, or would, enjoy sex, and who would desire it for the pleasure it brings, is an extraordinary claim requiring extraordinary evidence. This is especially true in light of the evidence that even young children can experience orgasm[58] and that they often engage in genital play or masturbation or in sex play with others.

It appears that sexual development and experimentation in children can be a gradual process, beginning in infancy and progressing through early childhood and preadolescence. Sexuality is not necessarily completely latent until the teen years. As Floyd M. Martinson writes, "Puberty is sometimes looked upon as establishing the biological-response base for the first erotic event. But we know that the capacity for at least the rudiments of erotic awakening is present from birth at least in some children. Erotic awakening comes about when that which is 'dormant' or 'asleep' is aroused to action."

Erotic awakening of can be of two kinds, autoerotic (i.e. erotic gratification obtained from the self without the participation of another person) and socio-sexual or interpersonal-erotic (i.e. the beginning of satisfying sexual encounters with others). Autoeroticism can be present from the first year of life. The time of interpersonal awakening depends on biological-response capacity and maturation, temperamental tendencies (cuddler or non-cuddler, for instance), and experience.

Although the infant (ages 0-2 years) lacks the well developed erotic imagery that is available and so important in adult sexual activity, self-stimulation by the infant typically occurs during the first year of life: "Preference for genital stimulation denotes the early existence of so-called erogenous zones."[59] Alfred Kinsey reported that 32 percent of boys two to twelve months of age were able to reach a sexual climax.[60] Early childhood years (ages 3-7 years) witness a marked intensification of sexual interest and capacity for erotic response.[59] According to Kinsey, erection comes on much more quickly in preadolescent boys than in adults; and in preadolescents, the capacity to achieve repeated orgasms in limited periods of time exceeds the capacity of teenage boys, who in turn are more capable than are men.[60] Martinson writes, "The presence of sexual-erotic encounters in preadolescence casts doubt on the universal application of the concept of sexual latency." The prevailing view in which "[t]he child is seen as sexless; the adult cherishes and esteems his sexual virility" and "[t]he 'sexless' child is expected to revise his attitudes toward his body and its erotic-genital potential almost totally as he passes from child to adult roles" seems to be contradicted by scientific observation.[59]

All of this tends to cast doubt on the truth of the assumptions behind the exploitation theory of child sexuality, which hold that all prepubescent children are asexual by nature and therefore only engage in sex when they are pressured or forced to do so. That theory is central to justifying government intervention, because government regulations in general tend to be of a uniform, one-size-fits-all nature. Unless enforcement is to be arbitrary, at the whim of individual judges and bureaucrats, the rules must necessarily be based on objective criteria, such as a measurable age. It is convenient, for administrative purposes, to draw sharp divisions between groups of people and activities, some of which are subject to punishment and others of which are not.[61]

But these statutory divisions are usually somewhat arbitrary. For example, it can seem a bit silly for a driver with a blood alcohol content with 0.08 to get arrested while a driver with a BAC of only 0.07 goes completely free, since the difference in impairment is only slight. Likewise, the difference between a person slightly over or slightly under an age of consent, or puberty, or some other division, may be rather small, and vary from person to person. Therefore, setting a fixed age for an entire population runs the risk of suboptimal results. Even if there is a gradation of penalties based on age (as, for example, in U.S.S.G. §2G2.2, which penalizes all child pornography but adds a 2-level enhancement if the minor is prepubescent and has not attained the age of 12 years), that only reduces, without eliminating, the arbitrariness.

The only alternative to bureaucratic management is liberty. This is a highly expedient option in situations in which the application of rigid standards is unsuited to the diverse nature of the population, whose members' characteristics can be unpredictable and hard to account for in a detailed set of rules. In those situations, it can be more practical to let each individual make decisions for himself, and prosper or suffer by his ability or inability to choose wisely. The exploitation theory made it seem as if there were no conflict between bureaucratic management and liberty in this area, because it was assumed that the children did not want to engage in the activity in which they were denied freedom to engage. But that theory does not seem to be correctly applicable to all cases.

Objections to reform

One argument is that an older person is capable of exercising more coercion due to greater size and strength, and therefore the laws are needed to protect minors from aggression. But whether minors or nonminors are involved, it is often the case that one partner in a consensual relationship is physically larger and stronger than the other. The fact that he could, if he wished, use force does not mean that any interaction between them results from fear of such force, and the laws do not make any such assumptions when adults are involved.

Further, minors often engage in violence toward one another, including sexual violence. Specifically, juveniles account for more than one-third (35.6 percent) of those known by police to have committed sex offenses against minors and they are more likely to have younger victims.[62] Many of them do not continue offending sexually after they become adults, however.[63] The demographic group with the highest proportion of forcible rape offenders in the United States is 18-year-old men, although the numbers are also high for younger teenage males.[64] Because statistics show that most violence is perpetrated by young males, it seems counterintuitive to make it illegal for anyone but fellow minors to have sex with minors on the grounds that minors are vulnerable to abuse by adults.

A stronger argument is that minors are particularly susceptible to coercion because of the economic and social power that adults have over them. Minors, being disallowed from working for a living, are dependent on parents; they lack autonomy and economic independence. This creates a power imbalance in, say, a stepfather-stepdaughter relationship.

But even in such situations, the fact that there is a power imbalance does not mean that consent cannot exist. It may be that in many cases, the young person would have been willing to consent regardless of the power situation. Consider, for example, the commonly-reported[65] cases of young men having sex with their female teachers. In polygynous species such as humans, males are known to tend to be more eager for sex and to be less discriminating about mates than females.[66] It is quite possible that in many of these cases, the boy was motivated more by sexual desire than by a desire to, say, influence the teacher to use her power to give him a better grade.

Certainly the boys themselves have often been rather outspoken in claiming that the sex was consensual, and so have girls in many cases. Perhaps they would be even more outspoken if they felt that explaining the consensual nature of the sex would help keep their lover out of prison; as it is, there may be little for either party to the relationship to gain by the minor's taking responsibility for his or her actions. Indeed, it might be advantageous to the minor to present himself as a helpless victim, so as to avoid being considered sexually deviant or "at-risk" and therefore in need of state intervention.

If Rothbard's proposed system were implemented, the statist arguments for protecting children from nonviolent coercion would largely fail because the young person would have the right to run away and "find new foster parents who will voluntarily adopt him, or to try to exist on his own."[12] In some cases, there may be no available foster parents, and the youth may be lacking in the necessary knowledge, skills, and abilities to work at a job that will support the standard of living he could get by submitting to older people's sexual demands. But this can also happen to adults; for example, a woman without many job skills, lacking enough money to attend college, and lacking family that is willing to support her, may find there is no other way to maintain the standard of living she desires other than by engaging in a sexual relationship with a relatively wealthy man. In some situations, this could fulfil many wants simultaneously; for example, that man might be competent and pleasing in a variety of ways and therefore increase her level of satisfaction above what it would have been had she remained single or chosen another man. In other cases, the wealth may be a deciding factor in picking a man whose personality, looks, etc. she deems to be not as good as what the competition offered.

Leftists frequently regard such transactions as economically "coerced" or "exploitative." They say the same about any situation in which a person is willing to engage in activity he would otherwise prefer not to, for the sake of obtaining benefits from another consenting party. The fact that a transaction has a cost does not mean that the benefits are not worth the costs. Rather, human action is purposeful behavior that seeks to weigh costs against benefits in order to maximize satisfaction. To say that the state must intervene to stop consensual transactions is to say that the state knows better than the parties involved what the most satisfaction-maximizing actions are. Decades of socialism and interventionism have proven that such central planning does not work well, and that it is better to let individuals seek after their own happiness as they see fit, as long as they do not forcibly infringe the rights of others.

For one thing, individuals have a tendency "to deviate from a plan once its commandment has become obviously self-defeating, impossible to fulfill, or otherwise too demanding," in the words of Helmut Schoeck.[67] Also, when people cannot make voluntary trades, they begin to fear each other, whether the divisions are between races, sexes, labor and management, the abled and the physical and mentally challenged, or any other groups.[68] Adults become afraid to touch children affectionately lest they be accused of molestation, and children become afraid of adults' touch. Caregivers become nervous about once taken-for-granted forms of physical contact such as changing diapers, wiping runny noses, or comforting a crying child by holding him.[69]

This is not necessarily a healthy trend, since young humans (among other mammals) benefit psychologically from nurturing forms of touching. Lack of touch in childhood has been implicated in pathologies from ecsema to anorexia. And as Judith Levine notes, research suggests that "A culture that lavishes gentle attention on its young also may encourage tolerance of the vulnerable and discourage physical power-mongering. People brought up to be aggressive and suspicious of intrusions against their own body's 'boundaries,' on the other hand, will be more self-protective and territorial and thus more belligerent, both socially and sexually."[70] Ironically, some young people deprived of any other form of touch seek it in sexual relationships, the exact outcome that people were trying to prevent by passing restrictive laws.[71]

Consequences of government intervention

There tend to be unintended consequences to government intervention. As Mary Ruwart points out in Short Answers to the Tough Questions, "When we outlaw child pornography, the prices paid for child performers rise, increasing the incentives for parents to use children against their will."[72] In recent years, the number of arrests for child pornography in the United States has been soaring. No other crime is growing at the 2,500 percent rate the FBI claims for child-porn arrests.[73] Largely as a result of Congressional amendments to the U.S. Sentencing Guidelines, from 1994 to 2007, the mean sentence in federal child pornography cases rose from 36 months of incarceration to 110 months.[74] Child pornography offenders can be given longer sentences than child abusers or violent offenders,[75] despite the fact that no reliable study has found that a possessor of child pornography is more likely to commit a contact offense.[76]

Families Against Mandatory Minimums has expressed concerns over the mandatory minimum penalties established for these offenses, arguing that they sometimes result in absurd sentences, such as a 15-year sentence in a case involving a victim who consented and was of legal age to marry the offender.[77] In a 2010 survey of federal judges by the U.S. Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high.[78] Lew Rockwell points out that if the state is unleashed to solve the problem of child exploitation, "The power will not be used to solve the problem, but rather to intimidate the population in ways that people will find difficult to object to":[79]

The goal of the state is to find some practice that is universally reviled and pose as the one and only way of expunging it from society. The best example today is child pornography, a grim and ghastly industry that every decent person would like to see eradicated from the earth. But in the name of doing so, the state invades everyone's privacy, controls speech, interferes with families, and otherwise uses the issue as a wedge to eliminate every freedom.

Judith Levine argues that the government's interventions can actually make children more vulnerable to harm:[80]

Attorney General Janet Reno's decision to lay siege to the Branch Davidian compound in Waco, Texas, was based in part on rumors of child abuse going on inside. In the ensuing conflagration, eighty people died, including twenty-four children. Trying to fortify the nuclear family by fomenting suspicion of strangers fractures the community of adults and children; it can leave children defenseless in abusive homes. Projecting sexual menace onto a cardboard monster and pouring money and energy into vanquishing him distracts adults from teaching children the subtle skills of loving with both trust and discrimination. Ultimately, children are rendered more vulnerable both at home and in the world.

Even in some cases in which children have been certifiably abused, the government's intervention may worsen the trauma.[81] The child may not even realize that he has been abused until the government tells him.[82] The government may notify a victim every time the child pornography resulting from his abuse has turned up in another investigation, providing a regular reminder of the abuse and that people are still finding enjoyment in watching it.[83] In some cases, a young person may consider the sex to have been loving and consensual, but is told by the government that he was manipulated and victimized. According to Fred Berlin, a Johns Hopkins University psychiatrist and sex offender treatment expert, "To send out the message that you've been ruined for life and this person was vile and they were only pretending to care — that often does a lot of damage."[84]

Although research suggests recidivism rates for sex offenders may not be particularly high,[85] the overwhelming majority (82.5%) of offenders sentenced to life terms of federal supervised release were convicted of pornography/prostitution/offenses. In fiscal year 2005, 10.3 percent of pornography/prostitution offenders were sentenced to life terms of supervised release, but that proportion increased to 30.6 percent in fiscal year 2009.[86] The U.S. Supreme Court, in Kansas v. Hendricks 521 U.S. 346 (1997), approved indefinite civil commitment for sex offenders, expanding the legal means by which the government can institutionalize people pursuant to ex post facto law. Some sex offenders are ordered to submit to rather intrusive diagnostic tools such as the penile plethysmograph, which was described by U.S. Ninth Circuit Judge Noonan as an "Orwellian procedure" and a violation of personal dignity and bodily, mental, and moral integrity.[87]

One of the main arguments for modern statutory rape laws was that teenage pregnancies expanded the welfare rolls. However, putting the older partner in prison could actually prevent him from providing for his child. In any event, abolishing welfare removes the problem of welfare rolls' burden on taxpayers. There are also concerns that publicity about statutory rape prosecutions will discourage pregnant and sexually active adolescents from seeking medical care for fear of having to reveal the identity and age of their partners.[52]

There are some concerns that Canadian child pornography law causes harm to society by suppressing thoughts and expression concerning child and youth sexuality that involved no harm in production, fall short of advocating harm and that have at best a tenuous connection to the commission of harmful acts.[88] In the U.S., court rulings have required restrictions on free speech to have a direct connection with abuse of actual children, while the Canadian Supreme Court has allowed much broader possession offenses, including works of the imagination such as writing, to pass constitutional scrutiny.[89] In the U.S. Supreme Court case of Osborne v. Ohio, 495 U.S. 103 (1990), the dissent by Justice Brennan argued:

The notion that possession of pornography may be penalized in order to facilitate a prohibition on its production, whatever the rights of possessors, is not unlike a proposal that newspaper subscribers be held criminally liable for receiving the newspaper if they are aware of the publisher's violations of child labor laws. . . In both cases, sanctions against possession might increase the effectiveness of concededly permissible regulations on the production process. But although the need to protect children from exploitation may be acute, it cannot override the right to receive the newspaper or to possess sexually explicit materials in the privacy of the home, especially when less restrictive alternatives exist to further the state interests asserted.

External links

References

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