“The Tao of Love”
“Toward a Functional Understanding of Love”
“On the True Nature of Human Sexuality”
“The Demonization of Adult-Child Erotic Love
“The Commercial Exploitation of Abuse”
“The Patriarchal Love Bias”
“The Truncated Account of Adult-Child Erotic Attraction”
“Does Pedophile Love Equate Abuse?”
“Is Pedophilia a Sexual Perversion?
“The Legal Split in Child Protection”
“The Violence of Morality”
“The Roots of Violence”
“The 12 Angular Points of Social Justice and Peace”
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Download the Book (607 Pages)
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The Legal Split in Child Protection
Overcoming the Split
The Legal Split in Child Protection
A new and democratic legal bill, if ever the criminal law system regulating human sexuality remains in place, must target upon violence and not sex, and incriminate both physical and sexual violence, not more and not less. Since in both physical and sexual assault, violence is the determining factor of the offense, it is more effective to treat both kinds of offenses in one and the same legal bill and not, as it is now, in a range of largely diverse bodies of laws distinct from each other, and which present no congruent scheme and hardly any synergies.
As the word ‘violence’ has a rather ambiguous meaning, the draft bill uses the term ‘harm’ to precisely define what is the rationale of this bill. Harm is a term which is well-defined and it can be verified in each case, using empirical methods of scrutiny, if or not there was physical, mental, emotional or sexual harm done to a child.
The second point where the new legal bill should differ from previous legislation is that harm done against adults, be it physical or sexual harm, on one hand, and against children, on the other, should be treated in one and the same bill, and not in different and divergent laws. The reasons for incriminating violence are exactly the same whether the violent assault is directed against an adult or against a child. Violence is violence, no matter against which members of the community it is released or inflicted.
I can only throw a tiny spot on the immense jurisprudence dealing with the delicate topic of legal corporal punishment versus illegal child battery. For the purposes of this study, it will suffice to summarize the basic findings on both, to get at an integrative conclusion. Of course, the limitation on the Anglo-Saxon legal system bears no preclusion, nor prejudice or value judgment with regard to a possible international perspective.
It is a matter of common knowledge that so-called physical or corporal punishment as well as sex laws regarding children vary from culture to culture. Cross-cultural studies on the practice of corporal punishment as James W. Prescott’s paper Body Pleasure and the Origins of Violence (1975) have come to the result that it is the combination of patriarchal values, a monotheistic religion with one single male god, the early deprivation of tactile nutrition and the prohibition of premarital sex that leads to violence, and thus also to violence against children, especially in its socially sanctified form as corporal punishment which is structural violence at its best.
In fact, what we are facing here are customs, traditions and social mores that have become legalized, thus making for the strangest body of law in human history. Of course, because of the limited scope of my research, the legal rules presented and discussed here can only serve as examples. In the United States, like in many other countries, the corporal punishment of children is generally accepted and more or less widely practiced. I am of course aware of the fact that in countries like Denmark, Sweden or Norway, where corporal punishment is legally prohibited, we are facing an entirely different situation.
But as the United States of America are very influential worldwide through their dominance of the international media, I have started my research with the American legal situation, and still today think that it was the right way to do so. For if some states of the USA change their criminal laws because of the insights provided by modern scholarly research, the signal function is not to underestimate. In my view, such a scenario would trigger a global change of sex laws for more rationality, more equity and more real safety for our children worldwide!
As for the present legal situation in the United States, criminal justice assumes the task to define the limits where lawful corporal punishment exceeds into the huge grey zone of unlawful child battery. As the judge considers the social rules and mores in this field as a kind of guideline, and since these social rules change constantly over time, it is inevitable that the law in this matter is constantly shifting as well. Besides the time factor, there is also a territorial factor.
A judge in a small town in Texas may rule in a different way than a judge in, say, Boston or New York, simply because social mores differ with regard to the limits of physical punishment and the values attributed to paternal correction. This is not a fault of the laws nor can it be held that the Texas judge is less qualified to rule about the matter. The fact simply is that the law in this field is not exact in the sense that criminal justice in this particular field reflects to a large extent social and cultural considerations, thereby granting a considerable discretion to the judge, the jury and the prosecution to incriminate certain behavior, or not incriminate it. As this leads to considerable legal insecurity, which is not desired in any jurisdiction, a total abolishment of corporal punishment of children has been suggested.
— See only Dean M. Herman, A Statutory Proposal to Prohibit the Infliction of Violence upon Children, 19 FAMILY LAW QUARTERLY, 1986, 1–52, with further references.
The general formula under the present state of the law is that corporal punishment of children by their parents or persons in loco parentis is not unlawful ‘if it is administered in good faith with parental affection, … and not cruel or merciless.’
— Wharton’s Criminal Law (1979), §§ 99–282.
If this sounds reassuring, one might doubt when reading further in Wharton’s Criminal Law textbook:
— According to some courts, the punishment is unlawful only if permanent injury results; a parent is not liable for excessive or even cruel punishment if he acted in good faith. (Id., 310)
In the precedent People v. Green (1909), the offender was charged with assault and battery of his adopted child Mabel, a twelve-year old girl. In the following case report, the offender is called respondent, and the girl complaining witness:
— On the day in question, …, respondent missed a 50-cent piece, and charged the complaining witness with its theft. She, however, denied having taken the money, whereupon the girl was disrobed, partially by Mrs. Green and partially by herself, and when she was naked and alone with the respondent was whipped by the respondent with a small riding whip. The respondent then tied her hands behind her back, having placed her nightgown on her, and left her. She was kept so tied from Friday afternoon until Sunday about noon, during which time the respondent fed her upon bread and water. On the Sunday morning following the whipping, the respondent and his wife left Mabel alone and went into the country. During Sunday forenoon she made some outcry and attracted the attention of Mrs. Jennie Wilton, who lived in the house adjoining respondent’s. Mrs. Wilton notified some firemen in the engine house nearby, and the girl was taken naked and with her hands still tied from the room through the upstairs window of respondent’s residence into the home of Mrs. Wilton. From there she was taken to the police headquarters and placed in the charge of Mrs. Francis Stoddard, the matron. Her condition is described by the matron as follows: ‘From here to the bend of the knee (illustrating) was so thick with marks, and underneath the marks the flesh was dark blue, green, curdled, and over that was the lashes, every one as large as my little finger, that was raised on her body. Across the abdomen, the lower limbs, was six marks, cut, where the blood oozed out and scabbed over. Seventy marks across here (indicating) that was not cut, but these six were cut. Had broken the skin and also across the lower limbs here, until the blood had oozed out, and scabbed over, and when I bathed the little thing with witch-hazel and water she cried, and I could not bathe them any more.’ (119 NW 1087, 1087–1088)
It should be noted that in this case the Supreme Court of Michigan ruled that the limits of lawful corporal punishment were indeed exceeded, and that the respondent was liable of child battery. But it is noteworthy to see for what reasons the court came to this conclusion. Contrary to what one may think, it was namely not the fact that the girl had been maltreated in a severe way by her foster father, but the fact only that she had been naked during the assault. It was not the lashes big as a little finger, it was not the pain inflicted on her, it was not the fact that her skin was broke and the blood oozed out at various spots, it was not the cruel imprisoning of the child during a whole weekend, it was not the fact that she had been tied up and put on a hunger diet. It was the fact that she had been stripped before she was violently assaulted:
— We think one of the most serious elements of the respondent’s offense is the conceded fact that he compelled the complaining witness, a female between 12 and 13 years of age, to stand before him nude and receive the castigation. This act is tended to shock her modesty, to break down her sense of decency and the inviolability of her person, which is the most valuable possession of a young girl. (Id., 1090)
This clearly means that if she had been assaulted with her nightgown on, all would have been okay. No word about the serious wounds and all the horrible suffering the girl was subjected to. It was the extravagant component of her nakedness, a subtly sexual connotation, that was decisive for the judges to hold that she was mistreated, not the excessive degree of violence, not the sadistic brutality and merciless treatment she was subjected to by her adoptive father. How could the authoritarian paternalistic attitude of the judges be better expressed than in the words they used, ‘modesty,’ ‘sense of decency?’ It is obvious that for these judges, the slightest sexual tenderness between the girl and her adoptive father would have been held ten times as harmful as the brutal assault and the impudent violation of her corporal integrity. This is even more apparent, although in some hidden way, in the final statement of the court:
— It is not the intention of the court to in any way weaken parental authority. On the contrary, we hold that it is the unquestionable right of parents and those in loco parentis to administer such reasonable and timely punishment as may be necessary to correct growing fruits in young children; but this right can never be used as a cloak for the exercise of malevolence or the exhibition of unbridled passion on the part of a parent. (Id.)
In another precedent, State v. McDonie (1924) — 96 W.Va. 219, 123 SE 405, 37 ALR 699 — the West Virginia Supreme Court of Appeals had to deal with an action against the mother of a six-year old boy who was cruelly mistreated by his stepfather. The mother not only tolerated the brutal assault on the little boy, but it was proved that —
— … she fully and freely acquiesced in the cruel punishment inflicted on her son by the stepfather; that she brought the rods and switches used and stood by, not only without any attempt of interfere, but apparently aiding her husband in every way, as testified to by a witness present at the time. (37 ALR 699, 700)
Here is the case report:
— It appears that on the evening before the particular occurrence which led to the arrest of the defendant and her husband, the boy had absented himself from home, and was found at the home of his grand-father, the father of Mrs. McDonie, and brought home sometime just after midnight by an uncle. Mrs. Cassler says that after the uncle had gone, Joe McDonie brought in a bundle of switches and handed them to the boy, who in turn gave them to her. She says there were ten of them, and the smallest was as large as her largest finger. That then McDonie began whipping the boy in the dining room, and slung him against the wall, while defendant sat there and witnessed the assault; that the child ran upstairs, followed by McDonie, and that she and defendant followed them up; that the husband ordered the boy to get into the bathtub and take his clothing off, which he did, and then turned the hot water on; that all the time the child was pleading with the mother to take him out, and tried to turn the water off himself, but the husband threw him back several times brutally against the side of the tub; that they tied the child’s hands behind him, and McDonie whipped him while he was in the hot water and held his head under the water until he strangled and bubbles arose to the surface; that defendant appeared to be no more concerned than if it was whipping a dog, and she would smile at me; that the child continually appealed to his mother to take him out; and that the only time Mrs. McDonie was not present was when she went after more sticks. Witness says that she afterward talked to defendant about McDonie’s treatment of the child, and that defendant said she loved Joe better than she did the child. This witness had been living in the house with the McDonies about two weeks and says that during that time Joe McDonie whipped the child brutally almost daily; and that several times defendant asked him to whip it. (Id., 701)
There is hardly anything to comment on this concerted action of brutality from the part of the three adults, including the passive cold-blooded witness, against that poor little child. The witness speaks of the child as an ‘it,’ not a him or her, as if speaking about a thing and not about a person. The Calvinist worldview of conceiving children as strange and somewhat devilish objects when disobeying becomes clear in this case.
There is a pretty list of precedents cited in the case report after the following statement of the court:
— Inasmuch as defendant was the parent of James M. Gibson, she had a right to punish him, so that even if malice is presumed, in order to justify the conviction, the statute requires that the acts must have been done not only maliciously and unlawfully, but with the intent existing at the time the punishment was inflicted, either to maim, disfigure, disable, or kill. (Id., 700)
These conditions evidently show that a parent’s discretion for crippling and disfiguring a child for lifetime is virtually unlimited. For how can the intention to maim, disfigure, disable or kill ever been proved at evidence for a court since it is a purely inner intention?
Another case, State of Wyoming v. Spiegel (1928) — 39 Wyo 309, 270 P 1064, 64 ALR 289 — states the following point of departure: ‘For a parent or one standing in such place to strike a child in punishment for disobedience or other misconduct is not an assault and battery, but is the exercise of a legal right.’
One may think that, over time, the judicial and social standards for admitting battery have changed. However, the Anglo-American legal system with its principle of stare decisis, the rigid adherence to often age-old judicial precedents does not favor flexible adaptation of legal rules to factual changes in the value system. Only statutory legislation that expressly overrides judicial precedents can bring effective change!
In addition we have to doubt if social standards regarding parental and educational violence against children have really changed in any significant way since the 1920s. The fact that these precedents with the cited commentaries are to be found in a 1979 treatise on criminal law does not encourage a positive answer to this question.
Wharton’s Criminal Law expressly states: ‘A parent has the right to administer proper and reasonable chastisement to his child without being guilty of a battery.’
— Wharton’s Criminal Law (1979), 309.
In good English, a parent has the legal right to inflict violence on a child, as far as this violence is ‘proper and reasonable.’
Proper violence, proper wars and proper bombs. Reasonable violence, reasonable casualties, reasonable weapons. The structural violence in this vocabulary speaks for itself, and I spare any further comment.
As to the United Kingdom, Cross and Jones’ Introduction to Criminal Law states that ‘the use of force does not constitute an assault or a battery if the accused is acting in the exercise of the right of corporal punishment.’
— Sir Rupert Cross, Introduction to Criminal Law (1984), 134.
The definition is similar to the one used by American courts and the precedents cited under this judgment date from 1860, 1869, 1873 and 1934. One is from 1973. Obviously, a hundred years did not alter very much in a value system that considers the child the devil in person!
After all, educational violence against children appears to be a rather stable institution in all civilizations that share a patriarchal past. With regard to the corporal chastisement of pupils by their school teachers, the general formula under common law was:
— At common law, a schoolmaster or teacher possessed discretionary power to inflict punishment upon his pupils and was not liable for battery in so doing unless the punishment caused permanent injury, was inflicted arbitrarily and without proper cause or maliciously. (Wharton’s Criminal Law (1979), p. 311)
The more recent opinion of the United States Supreme Court in the case Ingraham v. Wright may reflect the present state of the law:
— The use of corporal punishment in this country as a means of disciplining schoolchildren dates back to the colonial period. It has survived the transformation of primary and secondary education from the colonials’ reliance on optional private arrangements to our present system of compulsory education and dependence on public schools. Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, the practice continues to play a role in the public education of schoolchildren in most parts of the country. Professional and public opinion is sharply divided on the practice, and has been for more than a century. Yet we can discern no trend toward its elimination. At common law a single principle has governed the use of corporal punishment since before the American Revolution; teachers may impose reasonable but not excessive force to discipline a child. (…) Although the early cases viewed the authority of the teacher as deriving from the parents, the concept of parental delegation has been replaced by the view — more consonant with compulsory education laws — that the State itself may impose such corporal punishment as is reasonably necessary for the proper education of the child and for the maintenance of group discipline. (Id.)
What was abandoned as a humiliating practice against criminal offenders is still good enough for treating school children! If we only replace the word ‘force’ in the text of the judgment by the word ‘violence,’ one of its sentences reads as follows: ‘Teachers may impose reasonable but not excessive violence to discipline a child.’
Group discipline seems to have such a high importance that it justifies group violence.
Violence as a social sanction is thus, according to the United States Supreme Court, a proper means to regulate social relations. And a trend for elimination of group violence, and all violence, shall according to this judgment evidently not come from American jurisprudence!
Overcoming the Split
When we see that laws in a particular field are ineffective, arbitrary, irrational and nonsensical and that they bring about more social confusion, more violence, more harmful behavior than at the time when those laws did not exist, why do we want to uphold these laws?
My answer is simple. Because we are afraid of freedom! We argue that freedom brings chaos. That’s so because we do not understand nature. Nature does not need control to be good. Nature brings about all living and maintains the sun to shine without needing governmental control or funding.
Nature has brought about sexual attraction. Man has brought about sexual violence. Nature has created pleasure, man does all to destroy it. Nature has given us freedom, man does all to do away with freedom and establish unfreedom as the order of the day. Nature has instilled in children sexual curiosity, man has distilled age of consent laws — and without asking those who are concerned by these laws, the children.
Every age of consent is arbitrary in some way and dependent on the myth of children’s innocence in sexual matters, as well as on ambiguous religious or cultural assumptions and customs.
History research brought to daylight that throughout human history, ages of consent constantly varied according to the economic and social context of a given society or community and the value system resulting from this context. It is since long disproved that it is procreation ability that grants children competence and capacity for giving or receiving sexual pleasure. The truth is that procreation capacity is not necessary for a child to be able to consent to body touch or for exchanging sensual pleasure with certain preferred persons whatever their age. Especially for children below the age of reason, our usual societal regard upon sex as a matter of ‘acts’ and their distinction into non-penetrative and penetrative ones does not make sense.
When a child is enamored with an adult, the child tends to express willingness also for a penetrative embrace, even if the child is physically not yet ready for intercourse. In the magic world of a small child, loving interaction with an adult is part of an integrative worldview that makes no difference between the nature of various pleasures, and where the sexual game is a matter of fantasy, not a factual understanding of its physical reality.
The actual willingness for full sexual intercourse often to be encountered with small girls who are enamored with an adult man is not surprising. It is not based upon what sexology calls the ‘facts of life,’ but an expression of that magical reality the small girl lives in and expresses in a poetic language. It does not bother about the size of the genitals that are going to be put ‘in each other,’ while this may funnily be expressed that way, and it has no act-centered sexual opinions. It is based upon emotions, and the flow of emotions as a vital ingredient of love. It is beyond body poetics and rooted in the small child’s encompassing magical reality.
We may not fully understand child sexuality, but I think I can safely say that for the child the magic anticipation of intercourse is an intrinsic element of psychosexual growth and a sane expression of small children’s fantasy world. This psychological reality, to say this clearly, does not justify pedophilia as a political agenda, or a future political agenda. It asks for protecting the magical space of the child by not imposing educational control and supervision of the child’s intimate sphere. It’s, so to say, a principle of non-intervention that I advocate here.
Age of consent laws perhaps had some rationale in times where the actual age of puberty of a child coincided with a child’s sexual and social maturity. This is historically thus valid for the Middle-Ages where it was with around twelve to fourteen years that a young person could consent to sexuality, marry and establish a business. In all later periods, and especially in modern times, an evident clash is to be noted between the actual emosexual maturity of a child and his or her legal age of consent.
This brings about social and legal uncertainty and actually degrades children instead of helping them to mature functionally into responsible adults and interdependent members of the community.
Present age of consent laws inhibit children from natural sexual and non-sexual life experience and hold them imprisoned in an artificial cocoon of immaturity that retards and even disables the full expansive blooming of their bioenergetic and spiritual potential. Research has shown that a rigid age of consent barrier as legal discrimination between unlawful sex and lawful sex with children is in practice of little functional value because of the differences in the actual development and maturity of every child.
Instead, it has been seen that it is rather a matter of values why social groupings opt for more severe or else more liberal sex laws.
It became particularly evident during the reform discussions in the Netherlands that it is not in children’s best interest that reform is undertaken, but for a political purpose and with the after-thought of realizing certain political goals. Those who share liberal social views and emphasize the autonomy of the child tend to favor a low age of consent while those with traditional views and right-wing political orientation tend to emphasize strict sex laws with a pronounced attitude to holding children back from autonomous decisions, thereby implicitly denying children’s innate right for self-determination.
In principle children are able to give valid factual consent to sexual activities with adults, which includes being penetrated as part of a loving sexual embrace. This ability is independent of the child’s age; it is unrelated to certain biological events such as puberty or sexual maturity, or else emission capacity. It is a mere question of actual willingness.
Besides that, it is a matter of culture and education if, or not, a child only shows sexual curiosity and engages in autoerotic sex play, or shares, more actively, in a fuller range of sexual interaction with others. The assumption made by early psychoanalysis that sane children were ‘only’ autoerotic and not able for partnership, is superseded by newer sexological, psychological, ethnological and psychoanalytical research showing that children, when given freedom, will explore all that is sexually possible, including complete intercourse with both children and adults. It is not a matter of any fictive or legally recognized maturity.
Early psychoanalytic findings, such as those by Sigmund Freud that seem to show that children tend to engage only in autoerotic sexual satisfaction were rendered under the spell of the highly puritan morality of the industrial bourgeoisie of that time. On the basis of the child’s general capacity to give and receive pleasure, the child is able to decide in each instance what feels right and what feels wrong regarding sex and love with oneself and others. The fact that societal attitudes through the process of educational conditioning will influence the child’s general attitude in sexual matters cannot be a reason for letting societal interests shun the emotional and sexual needs of children!
Besides that, even the proponents of traditional legal solutions did not generally and per se wipe the idea of a factual consent of a child to sexual activities from the table. These people usually point to the fact that under the present laws, any such factual consent of a child to any child-adult sexual activity is deemed legally invalid.
We thus face a tautology. The reply does not answer the question. It elegantly circumvents it.
Somehow, many researchers from the strata of traditional-thinking people have in my view not totally excluded the possibility of a socially adequate range of nonviolent sexual activities between children and adults, leaving open the possibility of a different and sexually more liberal social situation being one day realized within a different legal system that backs it up. In the commentaries on statutory rape is to be found that the factual consent of the child is legally invalid or immaterial. This argument logically implies that such factual consent is possible! It is inconsistent, then, to argue with traditional criminal law experts that children generally did not know what they consent to when it regards their sexual wishes or desires.
Children do have the ability to know what they find pleasurable and gratifying, on one hand, and what they find appalling, on the other. Sexuality is a way of exchanging pleasure, it’s a form of communication, and it is as such only one of various experiences that enrich our lives. And as with all other life experiences, there will be a first time when this pleasure is experienced and there will also be one or the other form of initiation to it.
That such initiation of a child, when it comes from the side not of a child, but of an adult, should be abusive in every single case has little or no factual backup. Research speaks rather for evaluating every case and restraining from general judgments because set opinions about the matter can hardly cope with the variety of possible experiences.
More recent research repeatedly confirmed that trauma is not generally experienced through the sexual initiation itself but through certain behavior from the side of the adult that the child feels is inappropriate, or that is appalling because of coercion or strong pain, or because the child is silenced by threat with the purpose of keeping the experience secret.
In commentaries on traditional sex laws it is often said that premature sexual knowledge and experience had to be avoided by all means or that early sexual experience would disturb the sexual development of the child. This argument evidently contradicts the truth that all in life grows and evolves as a result of experience and not as a result of avoiding experience; as such, this argument simply cannot serve as a basis for legislation.
Upon deeper regard this argument, often to be found in right-wing circles of society, appears to be an ideological credo that serves to maintain an artificial image of childhood that in little or no way cares about the real needs of children. It can be argued that in former highly patriarchal societies the sanctified power of an adult male when sexually approaching a child would regularly to be qualified as abuse. There is certainly some truth in this, but the value of this argument changes considerably for present-day culture that has considerably restricted the power of the adult male when it goes to sexual mating.
According to modern research, violence and power abuse in sexual encounters between adults and children rarely occurs and is rather the exception than the rule of such encounters. While traditional child rearing required from the child an almost total submission under the command and the authority of the parents and teachers raising and educating them, in modern democratic society the child is not invariably and totally subjected to authority but granted a substantial amount of freedom and personality rights that include free speech and a still expanding range of options and freedoms for self-realization as well as a constantly growing impact upon deciding about his or her own professional future. It can even be argued, and it is rhetoric among leftist groups in Western society, that it is the authoritarian system in politics, society and family itself that brought about child abuse in the first place, and not the modern view that considers children as members of the community in their own right.
It cannot be denied that physical child abuse is to a large extent justified by patriarchal morals; while sexual abuse is a controversial matter.
Traditional circles of society tend to blind out the existence of child abuse or project it on sexual minorities; on the other hand, more progressive circles tend to overreact and exaggerate child abuse in modern society.
Whatever opinion one may personally have, it cannot be denied that our culture that is still basically patriarchal has built, over times, a high degree of structural violence that makes it very difficult to change sex laws because of a basic lack of trust in the self-regulatory systems inherent in nature. This is why only a responsible legislator can change those laws rather than waiting for a majority of the population to be ready for this change. Modern legislation must care about the best of the subjects to be protected by the law, as is children in this case, and not or much less about ideological, religious, traditional or custom opinions of the majority of the population.
In a strictly authoritarian system children range among slaves; abuse will occur without being called abuse. In a democratic society, however, children are partners and have choices to engage in life in ways that may be unthinkable in highly controlled social systems but that meet children’s need to grow, and also, to grow in autonomy.
There is no essential difference between the consequences of physical and sexual violence against children. Both physical and sexual violence can have traumatizing effects on the child’s psyche.
By contrast, in the absence of violence in sexual relations, children tend to receive some form of gratification from the experience. In addition, psychology corroborated that children are emotionally indiscriminating, and that it is generally not the age of a possible partner or mate that is decisive for them to love this person, but other, emotional factors such as friendship, care, closeness, availability, understanding or continuity.
A study conducted by Anna Freud on children kept in shelters during the heavy German bomb attacks in London during World War II came to the result that children are not invariably emotionally attached to their parents but to anyone who cares for their nutrition and emotional needs.
— Anna Freud, Children and War (1943).
As a matter of fact, some of the children only unwillingly accepted to get back to their parents after the end of the war because they had emotionally attached to one or the other caretakers in a shelter. The study also concluded that fear is not inherently present in children, not even in war times but a result of the parent’s fear that is transmitted to them telepathically or by implicit action. Without parental enticement to be afraid, Anna Freud concluded, children are matter-of-fact and able to enjoy virtually any situation that arises, how dangerous it ever may be.
From all the factors that are decisive in sexual relations between children and adults, one factor has been found the least important, the child’s age. A girl of sixteen can be totally unable to consent to a sexual activity with a peer or an adult while a girl of four may feel safe and competent to agree to sex with an adult she loves. Sexual development in fact has shown to depend much more on factual and positive life experiences than on certain biological key events.
The latter are still necessary and important to happen but relatively secondary with regard to a child’s factual love capacity. The inherent danger that children can become victims of emotional or sexual exploitation, are equally independent of the child’s age. The danger exists for all children, with the difference however that the experienced child will be much more able to cope with unwanted sexual approaches than children that are raised in overprotection, fear and guilt, and sexual ignorance.
Highly protected children have shown to be much more vulnerable to exploitation than children who can experience love and sexuality according to their own curiosity and the opportunities that life brings to them naturally. Children raised in authoritarian settings are generally unable to cope with unexpected situations because in the normal course of events decisions are taken for them and not by them, and they are not the rulers of their destiny.
By contrast, children from liberal families tend to develop a more or less effective self-protection that shields them against actual exploitation. The law does not have and does not want to have the function of keeping children immature but must consider children as beings-in-growth in accordance with the child’s need to build more and more autonomy as they grow up.
Effective legal protection can only be provided on the basis of equal rights for children, and it has to be seen that the abandonment of authoritarian structures in education will in last resort make the passive submission of children to physical or sexual attacks on them less likely to occur.
On the other hand, it has often been argued by criminal lawyers that a legal system with strict ages of consent bears the advantage to provide strict guidelines about what is permitted by the law and what is illegal.
There is certainly some truth in this argument. But apart from the fact that in love encounters it is quite uncommon to inquire about the exact age of a mate, I claim that for adults to assure that the sexual activity with a child they engage in is nonviolent under the definition of a statute is a legal fact easier to verify than finding out about the exact age of a child.
A future legislation should be sex-affirming, positive and rational, as well as effective for defeating violence. It should not be moralizing, but built upon scientifically corroborated findings and experiences. As such its primary intention should be to prevent violent crime, and violent sexual crime, instead of nailing people with useless draconian punishments.
To achieve this goal, the legislation should be highly restrictive toward violence encompassing even slight forms of psychic pressure under its definition. Such an approach would then be consistent with the insight that it is violence that is to be feared, that is dangerous to a child, an adult or the community, and not sensual pleasure and sexual diversity.
Basic novelties of such a future legal bill should be the abandonment of age of consent and the retreat of state and federal authorities to ruling and policing into the family and into love and intimacy, thus abandoning the age-old persecution of nonviolent and consenting relationships between persons of different age, regardless of their sexual or non-sexual nature. Eventually, the most daring novelty is the establishment and legal authorization of special consultants to effectively deal with cases that are to be qualified as violent physical or sexual attacks on children.
The allocation of the burden of proof should be drafted as an exception to a general rule of nonviolence put up as a starting point of the bill. With regard to the criteria of the activity in question to be nonviolent, it should be legally presumed that the child consented to the sexual activity when that activity was nonviolent and that the child was able to estimate to what they consented to, except in those particular circumstances where consent was deemed legally invalid.
In cases of doubt, the defendant should bear the risk that consultants prove the child was unable to consent either by showing that there was no factual willingness of the child or by proving that the child exceptionally lacked the necessary ability to make an informed decision. The burden of proof should be reversed when the activity was to be qualified a violent sexual assault as an aggravating judicial circumstance.
Research demonstrated that physical violence against children cannot effectively be dealt with by a legal dichotomy of lawful corporal punishment, on one hand, and unlawful child battery, on the other. Besides the fact that under some jurisdictions even brutal and truly harmful physical attacks on children would still be justified as lawful corporal punishment, if only the parent or educator acted in ‘good faith,’ the dividing line between the two areas is extremely difficult to draw and the legal uncertainty thus considerable.
This lack of sharpness of the pertaining laws is certainly not for the good of the child. It rather serves the perpetuation of an authoritarian, repressive and inhuman educational system that is outdated because it produces uncreative, fearful, and codependent human beings. And whatever position one may take, there is no doubt that both corporal punishment and child battery are violence inflicted upon children. Hence, there is no rational reason to treat both forms of behavior in a different way.
Actually, the only difference is an internal factor — good faith — which is what lawyers call a chewing-gum clause because it’s very hard to prove or disprove in reality and thus serves judge and jury to get at about any thinkable outcome that serves to corroborate their feelings and that, by doing so, opens the door to all and every form of prejudice.
The intention of a democratic and childcaring legislator can only be to prohibit the infliction of violence upon children. Moreover, it has no rational basis to grant certain adults such as parents or educators a free license to violently attack a child for whatever reason, educational or other.
The general law policy behind any future legislation on prohibiting violence against children should also consider that mere gifts or promises given in exchange to sexual favors are not depriving the child of their personal autonomy and do not directly impinge upon the child’s psyche. In general, they can be said to represent, to a certain extent, socially adequate behavior in that they are only indirectly impacting upon the child’s consent. In the same way as a child can accept or refuse kisses and caresses already as a baby, they can accept or deny to engage in any nonviolent sexual activity, and this regardless of age.
The burden of proof should be with consultants for the fact that, in the particular case, the child did not consent to the sexual activity when prima facie such consent was given.
It is equally on consultants to prove that the child exceptionally lacked the capacity to estimate what they consented to. If the defendant did not know about the child’s state of incapacity to consent, the consent of the child should legally be deemed to be valid. Such a provision is pertinent for the rather exceptional cases where the child was willing and consenting but mentally retarded without appearing to be retarded, or in any other way in a state of mental or emotional confusion or incapacity to consent, while however appearing to be normal.
It should be presumed by the statute that children do not consent to violent physical or sexual interactions. The burden of proof should be on the defendant for the fact that, beyond reasonable doubt, the child consented to the activity despite its violent character.
To summarize, what I suggest as a drafting technique for any future bill that sets out to unify the social fight against physical and sexual violence against children, commonly called ‘physical and sexual abuse,’ is to follow the principles of drafting statutes established for common law jurisdictions, as they are valid, still today, not only in the United States and the United Kingdom, but also in former members of the British Commonwealth called common law jurisdictions such as, for example, Canada, Australia, New Zealand, South Africa, India, Pakistan, Burma, Singapore or Sri Lanka.
Such an approach would be in accordance with my initial proposal to decriminalize sexual behavior for all members of society, and establish a consulting service composed of trained and experienced psychological, psychiatric and sexological advisors to deal with these matters as legally empowered professionals working for the public good and in execution of governmental duties and responsibilities.