Consent and the "Children Problem"

by Elisha Altmann MD PhD

Wait -- shouldn't that be "Children in the Consent Problem"? Not really. I don't think "consent" itself is either more or less problematic in young persons than in older ones. The problem, rather, is the use with children of a definition of "consent" that not only diverges from the word's plain meaning, but sets up a standard that's intentionally impossible to meet.

"Consent" is from the Latin "com" = together, + "sentire" = feel. Thus, "to feel, or sense, together." It appeared in English about 700 years ago, and modern English preserves the original meaning in "consensus," as in the "the group reached a useful consensus" or "the consensus was what the performance sucked." Why, then, does my little get-right-to-be-point dictionary say that "consent" is "approval or acceptance of something done or proposed by another"? Where did the "feeling together" part go? Well, if you think about it, it's really not such of a far cry -- even in the smallest group, i.e: two, each person comes equipped with a unique array of feelings based on who they are, where they come from, and everything they've experienced. So two people can't ever really feel the same thing -- and how would anyone know even if they did? In real life, people rarely come up with the same idea at the same time. That's why such occurrences are noted with quaint rituals like linked pinkies, punches on the arm, or shouting, "You owe me a Coke!" One "somebody" usually proposes an action, or just starts it. When you get down to it, the "feeling together" aspect of consent is that everybody gets to bring their own personal feelings and reactions to the process, expresses them without fear or constraint, and the eventual decision or course of action takes them all into account. If some individuals have a communications handicap, are reticent, verbally unskilled, or at any other kind of disadvantage, then the others, especially the initiator, have extra responsibility for ensuring their consent. Contemporary parlance provides the perfect expression: "I ain't feelin' it!" In every group or relationship, real "proposals" and real "actions" stir up a broth of feelings -- some good, and maybe some not-so-much. The more the former outweigh the latter, the more whole-hearted is the "consent." That's where the "... or "acceptance" part of the dictionary definition comes in. It's having one's sensibilities respected that counts. Over time, one even gets better at compromise (another "together" word) because one regularly sees the evidence of one's own inputs and preferences in the ensuing plans and actions.

So perhaps then consent should be mandated and assured before acting on any proposal or engaging in any course of action. Well, life doesn't always work that way -- nor would we want it to. Exigency, expediency, spontaneity, and just plain fun sometimes swing the balance in favor of "Damn the torpedoes, full speed ahead!" And "Just do it!" We take the chance of our feelings being hurt from time to time, but we always rely on the quality of our ongoing relationships with our friends and associates to guarantee that won't happen often. Living without any risks, including interpersonal risks, would be boring as hell! In real relationships, between two or among many, it is understood that sometimes we're going to goof up, put our foot in it, spill the soup in somebody's lap. An injunction never to err or offend reduces communication to empty "politically correct" platitudes, and ultimately poisons the relationship as surely as disparagement and threats. Nevertheless, though ordinary relationships, as opposed to those idealized in fantasy and fiction, encompass both good and bad feelings, positive and negative encounters, there's got to be enough "togetherness" overall for the parties to persevere. If an individual remains for long in a situation where she or he consistently feels bad, that is psychological pathology. If individuals are forced to remain in situations where they consistently feel bad, or are forcibly returned to them when they attempt to "vote with their feet," then that is social pathology.

Okay, so what does all this have to do with children? Well, I think no one would argue that children don't have feelings: if anything they are more emphatic and spontaneous in expressing them than adults, and certainly not less. I don't remember who said, "Anybody who uses the expression,'easy as taking candy from a baby' must never have tried to take candy away from any babies!," but it's truth is unimpeachable. Children readily communicate their "approval and acceptance," or disapproval and non-acceptance, of that which is "done or proposed by another." Sure, their expression can be prevented by coercion and threats, but then so can anybody's. The fact that in nearly all societies, flouting of social inhibitions by the young is ignored, found humorous, or deemed "cute," testifies that candid emotions are more normative for children than for adults. If we've agreed that every person's feelings, preferences, predilections etc. are unique, to now suggest that some people's are somehow less legitimate, or less worthy of consideration, is logically unjustifiable -- and ethically inexcusable.

Certain governments currently "set the bar" for consent to sexual behavior so high that it is virtually impossible for people of any age to engage sexually without risking draconian penalties should their partner later have second thoughts. When it comes to children, no matter how hearty and enthusiastic and continuing their consent, by legislative prestidigitation it is not consent at all. Rather, it is alleged that children cannot consent to sexual behavior because they lack the "experience" necessary to evaluate the implications of such a decision. This sounds sort of reasonable -- but it is not. It's like advertising an entry-level job opening, and requiring "experience" to apply! No matter how long one delays, one will never have experienced something until one does it! Well then, perhaps it's some other kind of experiences that are required -- ones "related" or "prerequisite"? Physical pleasure? Intimacy? Children hopefully have plenty of experience with both of those. Maybe some experience is lacking that pertains only to adults by definition? What might that be? Underarm odor? Nose hairs? Pregnancy? (Now there's a Catch-22!). Is it "love" of which children are incapable? I hope the preposterousness of such an assertion is obvious enough not to require elaborate rebuttal. "Love" is anyway such a polymorphous term -- different for females and males, and for people 20 years old and those 60, and quite so for dissimilar cultures. Shall only one type qualify? Or perhaps all types except those given and received by children? Let's face it: if are going to start requiring a "Proof-of-Love Certificate" to authorize sex, we're going to have a few billion adults out for our scalps! Maybe the critical test is "life experience" -- after all, older folks indisputably have lived longer than younger ones -- but how shall that be measured? A check list perhaps? I'm predicting most Afghani, or Haitian, 10-year-olds would then qualify easily, and most European and suburban American adults would flunk. Sexual experience is either sui generis or it's not: If it is, then all of the non-sexual experience in the world is not going to prepare for or improve it; and if it isn't, then "preliminaries" and "ancillaries" are all around, available to and experienced by everyone without regard to age.

A second allegation is that children cannot consent to sexual behavior, not because they lack "experience," but because they are not "mature" enough. This one also sounds reasonable at first, but is basically a tautology. Biologically, "maturity" is usually simply a synonym for "able to reproduce," i.e. no longer juvenile. In ordinary speech, though, it's expanded to include a life-long ideal of development and self realization, as in the magazine "Modern Maturity." Maturity has thus become not a stage but a value judgment, so that "you're being immature" is an insult independent of age. The offending behavior need bear no resemblance to that of any reasonably healthy child. Children are psychologically and neurophysiologically distinguishable from adults, at least on a statistical basis, but there are far many more similarities than differences, and anyway different does not imply inferior. The "maturity argument" is both spurious and hypocritical: the former because sexual behavior and its enjoyment are utterly devoid of requirement for personal complexity or high intellect, and the latter because in practice every effort is made to insure the availability of safe sex even to individuals whose brains have been compromised demonstrably and permanently by injury or congenital malfunction.

The unvarnished truth is that, in the present legal and social environment, children are nonpersons, owned in body and, increasingly, in soul, by parents, the State, or a combination thereof. Nobody asks them, or gives a damn, whether they "consent" to mind-numbing schools, development-stunting chemical suppressants, painful cosmetic orthodontics, or frequent and precipitous uprootings and relocations. When they are consulted, perfunctorily and patronizingly, it's often either with alternatives so narrow they are meaningless, as between two unhealthy fast-foods; or with critical information withheld or falsified, as with the dangers of adult-organized contact sports, where they may likely incur injuries causing lifelong chronic pain. There really is no "consent issue" because the consent of young persons, or their refusal of it, is shamefully irrelevant. Perhaps one enlightened day the right of young people to be regarded as human persons will be recognized, as it is for every other previously disenfranchised class -- say, upon proper personal application. Then they undoubtedly would give or withhold their consent, explicitly or tacitly, using the same imperfect criteria as the rest of us, and with the same mixed results. Not insignificantly, they also would have access to the same social and legal sanctions that society invokes if one of its members is subject to coercion or exploitation.

Children's minds and brains have been as expertly honed by evolution to their tasks of survival, growth and exploration as have those of adults to their tasks of acquisition and reproduction. If that were not so, we wouldn't be here! The promulgators of today's "moral panic" present as though it were fact their rather weird belief that child sex, especially of the intergenerational variety, is of colossal and calamitous consequence for children, and tragically they have achieved a degree of "self-fulfilling prophecy." On the contrary, under more "natural" conditions, intimate, playful, and just "social" sexual behaviors occur frequently in both adults and juveniles, and between adults and juveniles, of all the great ape species, including us, and in dozens of other social mammals studied. If sexual play were in some way harmful to children's later success in life, the desire to engage in it, and the exquisite pleasure derived from it, would long ago have been "bred out" of the species. Instead, over the aeons sex has come to serve an assortment of essential survival purposes -- some obvious, others maybe less so but just as important. Humanity "consented" to sexual expression millions of years ago, and to its enjoyment by young and old. We contravene Mother Nature at our peril.

Elisha Altmann can be contacted at e-altmann@hotmail.com