The age of consent

I am going to discuss the issue of the age of consent in Australia – both to sexual intercourse and to marriage. I believe both issues are difficult and problematic.

SBS’s Insight program with Jenny Brockie did a program on Forced Marriage in Australia in 2012.

One thing that wasn’t recognised by participants in the program was that Forced Marriage is a form of modern slavery as defined by UN documents.

The other issue which people didn’t seem to recognise is that (in Australian law)

1. Marriage is secular,

2. Marriage must be entered into by parties of adult age (18 in Australia) and

3. Marriage must have full and free consent of the parties.

If the parties are under 18, legally they cannot consent to marriage. It’s like statutory rape – if the girl (or boy nowadays, the Criminal law in Victoria is gender-neutral) is under-age “de facto consent” does not matter. The child cannot give a valid legal consent to sexual intercourse.

It is very common for a 13 year-old girl to be in court as a witness to a statutory rape charge, and she will say that she consented. OK, I know that kids in Western society are becoming sexually active nowadays at an early age, but where do you draw the line? How old do you have to be to give a valid consent?

The law has to be to some extent arbitrary. If you think 13 is old enough, then what about 12? Ten? Eight? The law has to make some assumptions about when a person is mature enough to make a decision. On the other hand, if we had to wait until we were mature enough to enter into a relationship with a full awareness of the consequences, we’d all be virgins at 40.

The cases coming before the courts might involve a 13 year-old girl and an older man. The girl might be (in the everyday sense of the word) “consenting” to sex, but does she really know what it means to take on the burdens and responsibilities of a relationship with an older man (who is probably emotionally immature, or he wouldn’t be having sex with a 13 year-old in the first place). And what access does this girl have to information about contraception, health issues and relationship advice? Is she going to be a sole parent by the age of 15, barely able to look after herself, let alone a child, and a second, third, fourth or fifth generation young single mother with no education and no employment skills, living on welfare payments, and being very well-informed about the existence of the “baby bonus”?

A friend of mine who has worked in child protection services, with children at risk, for many years believes that this grant sounds like big money to teenage girls with no job prospects, and they can get an income, so they think “why not have a baby?” They plonk the baby in front of the TV, and when my friend says “you shouldn’t do that” they typically reply “Oh, she’s all right”. But they are not all right. Recent research shows that infants with this environment and lack of stimulation are seriously damaged and at risk, even if they are not being physically abused.

In some cases, the older man involved might even be in a fiduciary relationship with the girl (which means a special relationship involving a duty of care, such as a teacher or guardian) – for example, a teacher or guardian. The girl thinks there is nothing wrong with this, but it is not that simple. Boundary violations in fiduciary relationships are always problematic – there are issues over and above the issue of rape. Generally they involve “transference” – which means the psychological or emotional attachment which a person has to a caregiver or authority figure, which they believe is love, but it is actually a different phenomenon. So there are problems with under-age sexual relationships.

I think that there are even greater problems with under-age marriages, because of the extent of the long-term commitments involved. How can an under-age girl give a mature and informed consent to a long-term relationship such as marriage with the possibility of children? Teenage girls should be in school getting an education and having the possibility of acquiring job skills, and leaving long-term commitments until they are more mature. Under-age marriage is not in the interests of the child, in fact it is a violation of human rights and a violation of the Rights of the Child in terms of international human rights law.

Some Muslim women on the SBS program argued that if a girl can consent to sex outside of marriage at the age of 16, (which according to their morals is a bad thing) why does she have to be 18 to consent to marriage (which they argue is a good thing, and preferable to extra-marital sex). I can see that these age-related laws seem anomalous and arbitrary, but there is a greater maturity needed to enter into marriage, and the principle that parties should be of adult age in the the UN Universal Declaration of Human Rights, as well as being incorporated into Australian law. I am suggesting the even when there is “de facto consent”, under-age marriage is still a problem.

English: Former U.S. First Lady Eleanor Roosev...

Eleanor Roosevelt with the English version of the United Nations Universal Declaration of Human Rights (1949) (Photo credit: Wikipedia)

Eleanor Roosevelt, above, one of the most under-rated amongst the outstanding women of the 20th century, played a huge role in bringing about the Universal Declaration of Human Rights.

But when the marriage takes place against the girl’s will (and occasionally against a boy’s will) it is an even greater issue. We are seeing more forced marriages in Australia, because of our changing demographics, with immigrant and refugee communities from places where forced marriage is practiced (and this includes many countries, with different religions and from different continents). Some of the immigrant communities in Australia argued to an inquiry held by the Commonwealth Attorney-General’s Department that under-age and forced marriage should be allowed in Australia on the grounds that it was part of the “culture” of some communities. Former Attorney-General Robert McLelland rejected this, quite correctly in my opinion. Culture should not be an excuse for violating fundamental human rights.

There are now draft amendments to the Commonwealth Criminal Code, to criminalise “slavery and slavery-like offences” including forced marriage. The A-G has received public comments, and legislation has just been introduced into the Australian Parliament. This is good news, considering that Nicola Roxon is probably still thinking about plain packaging for cigarettes, which has been to the High Court and is awaiting a decision.

English: en:Nicola Roxon, federal ALP Member f...

Nicola Roxon, federal ALP Member for Gellibrand, now Australian Attorney-Genreal (Photo credit: Wikipedia)

Forced marriage is a crime in the UK. Parents born in countries such as Pakistan and Bangladesh have been known to induce their UK-born (and therefore British citizen) daughters to go back “home” for a holiday to meet the relatives, only to find themselves drugged, beaten, taken to a remote rural area and forcibly married off either to a cousin or a much older man. Pakistan has the distinction of being the “forced marriage capital” of the world. The British Consulate in Islamabad has a dedicated (and I really mean dedicated!) unit which responds to calls from these girls and young women (who fortunately still have their mobile phones). They jump into their four-wheel drive and head off to some remote rural area and attempt to bring the girl back, put her into a safe house in Islamabad and offer pay her airfares back to Britain. Local village police are supposed to support the consular representatives, but in practice might be in sympathy with the locals and the girl’s parents.

Not many girls are willing to go ahead with criminal proceedings against their parents.The stereotype that forced marriage involves under-age and uneducated girls is wrong. One case which did go to court involved a 30 year-old doctor (medical graduate) in England who went to Bangladesh with her parents. She managed to escape and brought criminal proceedings against her parents. It is nevertheless very difficult for such women. But how much more difficult must it be for girls and women in traditional cultures, who are not educated and do not have the backing of the British Government and legal system?

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