When should it be allowed?

Debate: Don’t abolish: reform

The CPGB’s position on age-of-consent laws is self-contradictory, writes Ian Donovan

At the Communist Platform meeting last Saturday, the last substantive debate was over age-of-consent laws. The CPGB’s motion on ‘Youth and education’, presented to the meeting for discussion, contained the following point (no9):

“Abolish age-of-consent laws. We recognise the right of individuals to enter into the sexual relations they choose, provided this does not conflict with the rights of others. Alternative legislation to protect children from sexual abuse.”

This has long been a part of the CPGB’s minimum programme. However, I have long felt that this position is flawed and self-contradictory, and does not deal with the issues posed by the dual nature of the oppression of young people in the specific sphere of sexual relations: which amounts to the threat of sexual exploitation by their elders, on the one hand, and damaging sexual repression (also by their elders), on the other.

Thus I moved the following amendment to point 9:

The point of this debate is twofold: one being that the CPGB has a schema of what it calls its revolutionary minimum-maximum programme, which includes as part of its minimum section a whole series of demands aimed at addressing particular social and economic issues under capitalism, and putting forward solutions to those questions - often in the form of demands for radical social reforms. These represent what it hopes is a consistently democratic approach, such an approach being that which coincides with the interests of the working class.

I have differences with this approach, and consider it leaves something of a gap between the minimum and the maximum programmes, notwithstanding the fact that there are some political demands in the CPGB’s ‘minimum’ programme that go beyond social reform and point to the need for revolution. The fact that these are confined to a narrowly ‘political’ sphere, limited to democratic demands, and seemingly challenge capitalist control of the state without doing the same to the economy is the CPGB’s contradiction.

More to the point is that its approach to many questions involving the democratic rights of oppressed layers at least generally asks the right questions. That is certainly true of this issue of the age of consent. It is completely correct to try to counterpose a coherent social reform to the oppressive status quo, where, on the one hand, young people are exposed to sexual abuse, while, on the other hand, genuine relationships are often brutally broken up by the state under the pretext of protecting young people from abuse - whatever their actual wishes.

The problem with the CPGB’s existing formulation of this, however, is that it is simply abstract. Obviously it is uneasy about its own call for the abolition of all age-of-consent laws, and the expression of that unease is the call for “alternative legislation” to protect children from abuse. In its defence, it is worth pointing out that its programme also contains demands that would lessen the dependency of youth on potentially abusive adults, such as the right of youth to housing/ hostels as and when they need them (point 5), for counselling in sexual matters, etc (point 10), all of which would empower youth and make abuse and exploitation less likely.

Nevertheless, as it currently stands, its call for “alternative legislation” to protect against sexual abuse is meaningless, because it is not elaborated in any way. Which leaves the CPGB open to the criticism that the demand for abolishing all age-of-consent laws would in practice give carte blanche to anyone who wanted to sexually exploit children and young people. It is not a coherent position, it will not convince anyone and it is thus self-defeating.

So I propose a modified position, which recognises, as do the CPGB comrades, the harm that is done both by sexual abuse and by authoritarian state and parental interference in the consensual personal relationships of young people. Both of these things cause psychological and emotional damage, and both need to be minimised as much as possible. Indeed, when such complex and sensitive issues are posed, there is a lot to be said for a pragmatic strategy of harm minimisation as the overriding imperative in dealing with this kind of question.

Pragmatism is in these circumstances preferable to dogmatism, for the simple reason that there is no simple set of criteria for determining which sexual relationships involving youth are harmful, and which not. The same is true for intervention to stop such things. In many cases more harm is done by the latter than by the relationships themselves. The Jeremy Forrest case is obviously a case in point, with the elder party being jailed for five years, and the younger girl involved being blatantly coerced into breaking up the relationship - obviously the state is the real abuser here.

Opposing all age-of-consent laws in this situation is itself a dogmatic position. There obviously needs to be some criteria to make an initial estimate as to the possibility that a putative relationship might be abusive. Age is not a perfect measure of this - indeed there are certain to be people above any age of consent decided upon that fit the reasons for having a such a measure in the first place - people who are too immature in some sense to understand what the implications of sexual activities are.

But age is probably the least contentious measure that could be employed to make an initial estimate - otherwise there would arise an even worse situation, where purely arbitrary criteria could be employed and anyone’s relationship that is disapproved of by someone with some axe to grind could become a means of victimisation (in such rare cases where this might be justified, some very strict and defined medical grounds only could conceivably exist and have any justification).

However, what is necessary is not to abolish the age of consent, but to reform it by allowing a defence for breaking it. Which must be simply that a relationship where the partners fall on either side of the age of consent can be successfully defended if the parties involved can show that the relationship is not abusive. Obviously much of the burden of proving this must fall on the elder partner, but the feelings and wishes of the younger partner must also be given full recognition. In a way this has a certain formal similarity with the law of defamation - that a ‘defamatory’ statement can be shown to be justified if it can be proven to be true.

The purpose of a rational age-of-consent law is, after all, not about age per se, but rather about preventing abuse. If a situation arises, as is inevitable, where the application of the law itself can be shown to be an abuse, and not the relationship itself, then juries should have the power and indeed legal duty to draw that conclusion and accept that defence of the relationship.

Obviously, there would be a greater tendency to scepticism about such a defence, the greater the gap between the age of the younger partner in particular and the age limit, and also to a lesser degree the greater the discrepancy between the ages of the partners themselves. Which is also why the age limit itself would need to be carefully examined and formulated correctly.

Obviously, such a law could only therefore be applied if there was a party older than the age limit who breached the limit in terms of the age of his/ her younger partner in the first place. Such a law should also automatically exclude anyone younger than the age limit from being prosecuted for breaching the limit.

It is one of the absurdities of the existing laws that partners who are both under the existing age of consent can be prosecuted for consensual activities with each other, making both into victims of the state. It is gross hypocrisy for people below the age of consent to be presumed to be victims incapable of consenting and to be prosecuted as if they were abusers of each other - nothing more clearly exposes the reactionary, puritanical motives of those who framed the existing laws than this absurdity, which was most recently reformulated and defended by New Labour in power.

It is highly likely that a new ethos would come into being as a result of such a law being applied - new legal precedents, a new body of case law and legal experience to draw upon. While this is important, this is not the ultimate aim, but rather a humanisation of society itself and an undermining of political reaction around these kinds of questions. At the moment this often expresses itself in the form of a pseudo-‘progressive’ bigotry that effectively equates, say, the Jeremy Forrest case with real sickening cases of abuse, such as those committed in some children’s homes, or by the likes of Jimmy Saville.

One other related measure that needs serious modification is the one that criminalises relationships between teachers and pupils under 18 (below adulthood but not the age of consent), and the like, irrespective of consensuality. Rather than criminalisation, the same rules should apply as with doctors and patients who enter such personal relationships and do not immediately end the doctor/patient relationship at the same time - the doctor is struck off and barred from practice. This is right because of the similar level of vulnerability that the teacher/(non-adult) pupil, or doctor/patient relationship, implies. But jailing someone for an otherwise legal, consensual relationship is an injustice, and an offence against even formal equality before the law. This law itself - again a product of New Labour - is reactionary in its current form.

These proposals I believe embody a more effective critique of the current, hegemonic and largely reactionary view on sexual freedom and youth than the current policy in the CPGB Draft programme, from which its proposed motion was, of course, taken. The upshot of the debate was that point 9 of the motion on ‘Youth and education’ was remitted for later discussion - the remainder of the motion being passed as the policy of the Communist Platform.