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.