What is a child?

If people equate freedom of speech with watching child pornography, then the Rudd Labor Government is going to disagree. (Senator Conroy, December 31, 2007)

Conroy’s insistence on pushing ahead with Internet censorship is predicated inter alia on the notion that children must be protected from being sexually abused in the production of pornographic images. (That they must also be protected from viewing certain images is another matter, which I do not address here.) Conroy’s widely reported ad hominem (above) leveled at objectors to Internet censorship does neither his intelligence nor his cause any credit. If Conroy’s intention is to protect children, then we must first make up our minds about what we mean by “children”.

The Inaugural Session of the Advisory Council of Jurists, held in August 2000 at Rotarua, dealt with the twin issues of child sexual abuse and child pornography (particularly Internet pornography). The final report of that conference defines a child as a person below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. The Council recommended that, for the purposes of child pornography, a child is a person who is, or appears to be, under the age of 16 years (Child Pornography on the Internet Final Report December 2000).

Because a child is defined by age, which is not always consistent with age of consent, or age of majority, difficulties arise as to what is meant when a child “below the age of 18 years” is involved either as victim or perpetrator in matters of a sexual nature.

For example, on March 8, 2009, two headline stories of alleged sexual abuse against young people appeared in (Australia’s) The Sunday Telegraph: one concerned a 17-year-old female, the other a 17-year-old male. Under Commonwealth law, both individuals, being below the age of 18, were children.

It is of relevance here that the female lived in New South Wales and the male in South Australia. In New South Wales, the female being above 16 years of age was also above the age of consent, thus, in her case, the allegation was of “sexual assault” not “child sexual assault”. The age of consent is 17 in South Australia and so there was no allegation of child sexual assault in that case. However, that allegation of sexual assault was made against a person who, at the relevant the time, was a teacher at the complainant’s school. In that case the teacher allegedly offended under the provision of being in a “position of trust”, where, for that purpose, the age of consent is set at 18 (South Australia: s.57 Criminal Law Consolidated Act). This provision is not unique to South Australia, other states and countries (Denmark and France, for example) have similar provisions.

The legislated child

The purpose of the above paragraph is to call attention to some of the inconsistencies and even anomalies that arise when age alone defines a child; I will call this definition the “legislated child” because it does not relate to a level of maturing or maturity, but to the date of birth. In these examples, the legislated child, as it affects child sexual activity is: Commonwealth 18, South Australia 17, and New South Wales 16. Thus, if a sexually active 16-year-old in Sydney moved to Adelaide and continued to be sexually active before turning 17, the partner would be offending under South Australian law.

Australia is not alone in having a confusion of child-related laws. The legislated child is protected until 18 in the USA but ages of consent vary between 14 (e.g. Iowa) and 18 (e.g. Wisconsin); nevertheless Federal child pornography law, like Australia’s, proscribes depictions of those under the age of 18 engaged in sexual activity.

In the UK, the age of consent is 16, except for Northern Ireland, where it is 17 but, as with Australia and the USA, child pornography law is relevant to all images of children who are, or appear to be, under the age of 18.

Countries with the lowest ages of consent (which is 12) include Colombia and Peru. There is no age of consent in Iran because sex outside marriage at any age is an offence, but as the “marriageable age” for males is 15 and for females 13, the de facto consensual age is agreeable with that of many other countries. (Before 2002, the marriageable age for Iranian females was nine years.) A birth certificate would confirm a child’s age but when considering images of children we are presented, not with a real child, but with images from which we can only guess at the portrayed child’s age.

The apparent child

When considering images of alleged child abuse, the censors look at the entire presentation and in effect ask: does the depicted individual look like a child? A child in censor-speak is what “appears to be” or is “apparently” a child, which, for all its ambiguities, is a phrase that offers a more accurate definition of “child” than does the “legislated child” on two counts:

1. a child has no discernable body hair; and
2. the genitals are clearly underdeveloped.

Consequently, images that depict such characteristics might be taken to be those of a child.

There are, however, other difficulties in determining the age of a child from images: children might be older or younger than they appear. For example James D Tanner, MD, designed a scale of growth patterns in juveniles (the Tanner Scale), which is often given as evidence in child pornography prosecutions where the age of a depicted individual is uncertain. However, Tanner and his colleague, Arlan Rosenbloom point to the misuse of this scale in courtroom procedure.

... we wish to caution pediatricians and other physicians to refrain from providing “expert” testimony as to chronological age based on Tanner staging, which was designed for estimating development or physiologic age for medical, educational, and sports purposes, in other words, identifying early and late maturers. The method is appropriate for this, provided chronologic age is known. It is not designed for estimating chronologic age and, therefore, not properly used for this purpose. (Rosenbloom, A. L. and Tanner, J. in PEDIATRICS Vol. 102 No. 6 December 1998. "Misuse of Tanner Puberty Stages to Estimate Chronological Age.")

From this it is possible that images of late-maturers could appear to represent individuals who are much younger. Even if that were not so, it would be difficult, if not impossible, to swear in a child pornography prosecution, that the image of a naked individual is definitely that of a 15-, 16- or 17-year-old and not of an 18- or 21-year-old. See here.

One final point on appearance: because it is difficult to guess an individual’s legislated age by sight alone governments introduced proof of age identity cards, which must be presented when and where required - in pubs, movie theatres, video-hire stores, for example. As this is much more than a tacit admission that mistakes are made in real life, how much more the risk that similar mistakes are made when judging age from an image.

The sexually active child

It can be reasonably agreed that a child is one who has not reached puberty but I question why older individuals, (legislated children) from 13 to under 18, should still be called children for the purposes of child pornography law when they, in considerable numbers, clearly understand what they are doing sexually.

According to Joan Sauers in Sex Lives of Australian Teenagers, 97 per cent of girls surveyed and 93 per cent of boys had had some sort of sexual experience with someone else by the time they were 17. Furthermore, 30.5 per cent of girls and 31.5 per cent of boys had had their first experience, although not always entirely sexual while still legally underage.

When asked: “How old were you when you had your first sexual experience with someone else?” many thought of early childhood instances of childhood games like “doctors and nurses” while most described their first “post-puberty kiss”. One in three girls (33 per cent) and nearly one in four boys (23.5 per cent) had their first sexual experience between ages 11 and 13. By age 14 more than a quarter of boys and girls had had oral sex and “one-third of all respondents had had sexual intercourse before the legal age of consent”. Of those girls aged 14 to 16, one third (33.5 per cent) had had sexual experience (not necessarily intercourse) with a partner; of boys in the same age group, 38 per cent had had a similar experience.

Sauers’ findings equate those known to Planned Parenthood of New York vice-president, Leslie Kantor: “The vast majority of adolescents in America and across the globe enter into sexual relations in their teen years” (Levine J., Harmful to Minors: The Perils of Protecting Children from Sex).

There is a further point: it would be surprising if 13- to 17-year-olds “across the globe” thought of themselves as children. They are called children because those in authority say so. However, as it bears on censorship law, images of 17-year-olds in sexual situations are considered child pornography. Thus, even though young people of those ages may lawfully consent to sex, and, by reasonable extension, consent to their activity being recorded as images, they would be in breach of child pornography law should they manufacture, distribute, possess or access the images as in the instances of “sexting” (see Nina Funnell’s piece, On Line Opinion, April 7, 2009.)

The expedient child

I now propose to call people between 13 and 18 “expedient children” because this is the only reasonable term that can describe the expedient and/or ambivalent attitude of authority towards young people.

At age 11, children typically move to a secondary school, because society recognises a level of maturing in children such that they are deemed capable of a greater understanding of life and learning. The law also recognises that at 11 years children are aware of the effects of their actions.

In Australia and some other countries individuals from ages 10 to 14 are deemed responsible for their actions and can be charged with committing all but criminal offences, which, according to law, they are incapable of committing (doli incapax). However, age 14 would appear too high. During debate on the Criminal Code Amendment Bill in Queensland it was stated that: “it would be a difficult task to find a child aged 10 to 14 years who does not know the difference between right and wrong according to what the community would find reasonable, especially in a time when it is clear that the incidences of children, sometimes younger than 10, being involved in serious crime are definitely on the increase.” (Crofts, T., Doli Inpax: Why Children Need its Protection.)

At 14 to 18 the full criminal law applies, yet the law labels them children.

There is not space here to mention the sport-playing “children” in this age group whose achievements are on a par with (and often better than) adults. When considered in this light the “child” would be an offender for drinking beer with 18-plus team-mates while being hailed as a hero for winning a competition. I suggest that this expediency is itself a form of abuse.

Senator Conroy might like to reflect on all this and answer, honestly, the question: who am I protecting, and from what? Reading the forgoing should render him the better informed, if he is no so already. And I’d like to think he might also be made the wiser.