Age of consent laws: Puritan notions of right and wrong

What is the enduring appeal of Romeo and Juliet? Perhaps it is because they were an adolescent couple experiencing the absolute intensity of sexual and romantic attraction to which most people in the human race can relate. While the story is about more than their personal encounters with infatuation and lust, their sexual drives and awakenings - which are central to the plot - are accepted and valued as core human qualities.

Juliet was 14, and about to be married off to the nobleman Paris, when she fell in love with Romeo. Provided she married, sex at her age was OK. Fast forward a few hundred years and adolescent sexuality in Western societies seems a whole lot more complicated, despite the fact that women and men can now control their fertility, fall in love more than once and partner with whomever they choose, and that diverse sexualities are increasingly acknowledged, and in many places, accepted and welcomed.

The concerns of some Western societies about adolescent sexuality are predominantly moralistic and a legacy of Christian, particularly puritan, notions of right and wrong. While societies must adopt moral positions on a variety of human behaviours - such as violence, the abuse of children, the exploitation of minority populations - what informs our moral position on adolescent sexuality? Should there be an “age of consent”? And if so, does it serve a moral, or some other, purpose?

Historically, if sexual activity led to pregnancy and childbirth, this created potential complications regarding property and inheritance. Hence, the age of consent was closely related to the age at which marriage and the production of heirs could take place, and served an economic function apart from anything else. The illegality of homosexual sex was (and still is) connected to religious beliefs.

The laws surrounding the age of consent to have sex vary between states and territories in Australia. In some states the age of consent is 16 years for sex, in others the age depends on whether it is heterosexual or homosexual sex, or whether it is anal sex (regardless of the sex of the partner). In most states and territories there is a provision that prohibits adults with “special care” of a young person (such as teachers and step-parents) from having sex with that young person if they are under 18 years. In ACT and Victoria, sex between consenting individuals of any sex is allowed between the age of 10 and 16 provided there is less than 2 years age difference.

How well do these laws reflect our current understanding of adolescent sexuality? The law in these latter two states appears to come closest to reflecting the absolute normality of adolescent sexuality, with the age difference provision a reasonable safety check for preventing abuse and exploitation.

It must be recognised that adolescence as a distinct life stage is very modern: it was only really “invented” 100 years ago. Modern theories about adolescence regard it as a crucial period for sexual development, and, conversely, sexuality is seen as having a central role in adolescent development. Undoubtedly the surge of sex hormones and physiological changes associated with puberty primarily account for these theories, and in studies of human sexual behaviour, puberty appears to be a prerequisite for copulation.

But is it really that simple? When does human sexuality in the individual begin? The human male fetus can experience penile erection and female infants (and probably fetuses) can lubricate. Masturbation and sexual play among infants and young children are common, (although their meaning is interpreted by adults). Childhood sexuality and sexual behaviour have seldom been the subject of scientific or social enquiry.

The cognitive maturity that rapidly develops between about the ages of 11 and 14 is deemed sufficient to enable many young adolescents to consent to their own medical treatment. It is reasonable to assume that the mature adolescent can also make decisions about whether they want to engage in sexual activity.

Adolescent sexuality in Australia has been studied almost exclusively in relation to sexual and associated behaviours. The scientific study of sexuality allows us to identify behavioural and demographic “risk” factors, with the word “risk” replacing the morally-based “wrong”. Health “risk” has, in fact, become a thin disguise for an ongoing moral agenda.

Among Australian adolescents, about half have had (hetero) sexual intercourse by the age of 16. The majority of these do not consistently use condoms to prevent sexually transmitted infections and notifications for Chlamydia have steadily increased over the past few years. About a quarter of secondary school students surveyed in the last national sex survey said that their last sexual encounter took place while intoxicated and was unsafe or unwanted as a result. (AIHW 2003).

These scientifically valid findings add plenty of fuel to the fires of both the moralists and the health professionals: they are objective, simple measures of behaviour or behavioural outcomes. In the USA, the alarmingly high teenage pregnancy rate was the rationale for introducing federally-funded abstinence-only-until-marriage sex education programs, which required that young people must be taught that “sexual activity outside of marriage is likely to have harmful psychological and physical effects”.

How and why do these “sexual health indicators” justify laws that prohibit consensual sexual activity between two people of any sex? In countries where there is an openness towards addressing sexuality and easier access to health information and services, adolescent pregnancy rates are lower. The World Health Organisation found that across Europe and the UK, comprehensive programs (including sex education, access to services, youth development, family outreach, and an open and positive attitude towards sexual health and relationships) were more effective in reducing teenage pregnancy rates.

A Columbia University study (pdf file 189KB) found that sexually transmitted infection rates in the longer term were no different among young people who had taken virginity pledges compared to those who didn’t, because they failed to use adequate protection, and that “pledgers” were less likely to use contraception when they lost their virginity.

In the Australian national study of secondary school students, around 10 per cent of males and females reported feeling attracted to people of the same sex, or both sexes, or were unsure. There is absolutely no sense in having a higher age of consent for homosexual sex - is this based on the supposition, or the hope, that in time, young people who are homosexual or bisexual will grow out of it? If so, we are still living in the dark ages and it’s time that all sexualities are acknowledged and accepted, with laws designed to protect and promote wellbeing of all, rather than punishing a completely normal minority.

The voices of young people themselves are also visibly missing in the discussion about adolescent sexuality. What do young people think? What do they worry about? Are their concerns the same as those of adults? Young rural Australian women describe sexual safety as having more to do with protecting their reputations, in a society full of double standards, than with the possibility of pregnancy or STIs. Young men and young women cite love, pleasure and curiosity as reasons for having sex. Young men and women have a diverse range of experiences, questions and concerns when it comes to sex - from how often one can masturbate, to how to negotiate relationships to how to discuss sexual practices with partners.

In a civilized world that acknowledges the rights of the child, young people also need some say in what the law does and does not let them do.

Sexuality is a core human quality, and human beings have a vast sexual cultural history. Archaeologist Timothy Taylor argues that humans are unique among the animal kingdom because of the evolution of culture, a development that has taken no less than four million years. He goes on to say that “once culture was invented, cultural variation blossomed” and that “… it is possible to document great variation in human sexuality over the past 5,000 years: bestiality, homosexuality, prostitution, transvestism, transsexuality, hormone treatments, sadomasochism, contraception, “pure breeding”, sex as an acrobatic and competitive pastime and as a transcendental spiritual discipline.”

At any point in time on any part of the planet, societal norms about sexuality will represent only a snapshot of the way sexuality is constructed at that particular moment.

Romeo and Juliet’s tragic fate opened the eyes of the adults in their world, and the play ends with a sense of optimism. In the 21st century, let’s make laws that promote the responsible care of children and young people (such as laws that prohibit potential abuses of power for the gratification of adults) and that nurture the safe and healthy development of the individual’s sexuality, in all its glorious variety.