The right to have sex - at what age?

In a Libertarian system, what is the minimum "legal" age at which sex between an adult and the consenting minor is no longer statutory rape?

Who decides this age?

The parent? Then what is the age at which the parent is no longer allowed to make decisions for it's child?

And who decides that age?

When the child is ready to challenge his parents' authority over him, he is legally to be considered an adult.

Roderick Long recently made some insightful remarks on this issue:

http://www.praxeology.net/blog/2008/04/25/ruwart-on-childrens-rights/

I don't like the way that the original question is phrased because I disagree with the assumed premise - that there should be an official singular age of consent. I've opposed age of consent laws for a while now. My main reason for opposing it is because it is a one-size-fits-all approach to the matter that disregaurds individual variance. Not everyone matures physically and mentally at the exact same rate. Despite scientific research pointing in the direction of a general theshold, there is no single age by which an individual becomes an "adult". At best, we have an approximation.

I think that it would make sense for there to be a more objective criteria for consent itself that takes the individuals in question and the individual situation itself into account, rather than an age quota that considers people to be guilty under the law prior to any real investigation or evidence. My main concern is for those who are on the margin of the age of consent who may happen to engage in voluntary sexual relations yet are considered defacto rapists under the law, like a 15 and 17 year old with an age of consent of 16. So please do not try to imply that I'm trying to coddle actual child molesters or pedophiles, because that is not my intention. I just don't think that age itself is the proper or sole criteria.

Brainpolice:

I don't like the way that the original question is phrased because I disagree with the assumed premise - that there should be an official singular age of consent. I've opposed age of consent laws for a while now. My main reason for opposing it is because it is a one-size-fits-all approach to the matter that disregaurds individual variance. Not everyone matures physically and mentally at the exact same rate. Despite scientific research pointing in the direction of a general theshold, there is no single age by which an individual becomes an "adult". At best, we have an approximation.

I think that it would make sense for there to be a more objective criteria for consent itself that takes the individuals in question and the individual situation itself into account, rather than an age quota that considers people to be guilty under the law prior to any real investigation or evidence. My main concern is for those who are on the margin of the age of consent who may happen to engage in voluntary sexual relations yet are considered defacto rapists under the law, like a 15 and 17 year old with an age of consent of 16. So please do not try to imply that I'm trying to coddle actual child molesters or pedophiles, because that is not my intention. I just don't think that age itself is the proper or sole criteria.

I was going to repy - it was long winded and ultimately - not as eloquently put as this.

I guess I'd wonder why we need to talk about a "right" to have sex in the first place.  Generally libertarians presume a right to self determination which can only be legitimately infringed for certain kinds of reasons (e.g. harm to others).  So the real question shouldn't be whether we have a right to have sex, but rather whether others would ever be justified in interfering if we chose to try to have sex.

As I discussed in this article, it's not completely unreasonable to think that we could be justified in preventing someone from doing something that they were choosing to do if we had very good reason to think that their choices would be catastrophic for them and we didn't have a reasonable chance to try to convince them without using force.  For many young people, I think this is a somewhat fair description of things.  I mean, paternalism is an unbecoming position between rational adults, but the word does come from the idea of treating adults like children.  So if I had to use force to stop a 12 year old girl from getting into a sketchy guy's car after he seduced her with talk of how mature she is, and how he understood her so much better than her oppressive parents, I don't know that I'd think myself to be acting wrongly.

But as I also said, there comes a point where we have to let people make their own choices.  If we say our piece, and someone still chooses to do something that we don't think is the right thing to do, we have to take into consideration the fact that others have the right to be free, and to make their own choices.  I think it's a fine line with children, because it's hard to know whether they are actually making good choices, or are just being children.  As G.A. Cohen pointed out, surely we would be hesitant to advocate freedom if we knew that it would systematically lead to people choosing things which would predictably have outcomes that would be catastrophic for them (for example, the freedom for a 5 year old to voluntarily put herself in a situation to be groped by an authority figure who she was too innocent to question).  But as so many libertarians have pointed out, we would also surely be hesitant to advocate coercion if we knew that we might be hampering individuals' ability to live their lives in the way that they wanted to live them. 

I guess my point is that talking about a "right to have sex" sort of misses the point.  The question is whether we would ever be justified in interfering with young people's desire to have sex.  And I think that while the answer is yes, we have to be careful about legitimizing unjust interfence in people's life choices.

Hopefully that helps somehow...

gplauche:

Roderick Long recently made some insightful remarks on this issue:

 This puts me in the unusual position of disagreeing with Dr. Long.  My objection to diminished capacity arguments is that they always rely on external determination of diminished capacity - even when the person in question is screaming at the top of their lungs that they are of full capacity.  I certainly don't trust psychiatry/psychology to make the determination.  I'd rather have a more objective rule for this kind of thing.  Here's my suggestion - children who live with their parents have diminished rights - specifically, they can't give consent for sex.  For parents to give consent for them would be child abuse, so such children can't have sex.  If you're old enough to move out and live on your own, you can realize the full scope of rights.  Yes, there are difficulties - libertarians who live in the basement and are 45...but I'm sure they can be worked out by wording this better.

Well hold on.  Saying that we might not be able to correctly identify diminished capacity in individual cases does not entail that diminished capacity could represent a morally relevant distinction which could justify otherwise impermissible actions.  Think of it this way: it may be that I can't prove that you murdered someone, and would therefore be unjustified in punishing you, even though I would be justified in punishing you if you murdered someone.  The fact that we can't determine whether or not something has a certain property doesn't entail that the property can't exist, or that it is not morally relevant.

JAlanKatz:

 This puts me in the unusual position of disagreeing with Dr. Long.  My objection to diminished capacity arguments is that they always rely on external determination of diminished capacity - even when the person in question is screaming at the top of their lungs that they are of full capacity.  I certainly don't trust psychiatry/psychology to make the determination.  I'd rather have a more objective rule for this kind of thing.

I wonder if maybe you are confusing or conflating 'diminished capacity' with 'diminish ability' or 'low level of skill'. The former is fairly objective, tied as it is to childhood development and other obvious things like severe mental retardation, being comatose, severe brain trauma, going senile or suffering from severe Alzheimer's, etc. Roderick is not talking about simply not exercising your rational capacity well, for whatever reason.

Donny with an A:

Well hold on.  Saying that we might not be able to correctly identify diminished capacity in individual cases does not entail that diminished capacity could represent a morally relevant distinction which could justify otherwise impermissible actions.  Think of it this way: it may be that I can't prove that you murdered someone, and would therefore be unjustified in punishing you, even though I would be justified in punishing you if you murdered someone.  The fact that we can't determine whether or not something has a certain property doesn't entail that the property can't exist, or that it is not morally relevant.

I'm not sure I see that last point.  If it were granted that some property could exist that no one could ever identify, it seems unreasonable for that property to be morally relevant.  Certainly it seems an arbitrary and cruel morality that would be based on such unknowable facts.

A parent has a right to the custodial ownership of the protection of a child's rights. They can discipline their child and enforce the rules of their house within the range of what a reasonable adult would accept. So the question is at what time the child's rights become fully his or her own?

I believe that an agreement between the child and his or her parents would be the best way to answer that question. However, if the child believes he or she is actually an adult and the parents disagree, it would be their responsibility to prove it, basically by running away. If they are breaking their parent's rules against sex or anything else while still living as a child and reaping the benefits of childhood, then their parents would be within their rights to stop that activity and discipline the child for breaking the rule (always within reason, of course).

But if the kid leaves home; that is, refuses any further support and sustenence from their parents, he or she is effectively an adult.

I believe that cases where a child runs away from a good home would be rare, though. Most parents and children love each other, and any good parent provides a great deal of good reason for the child to remain their child.. I would say that a child tends to be ready to become an adult when their parents rules no longer have any relevance to their lives, at which time the child (most likely long into biological adulthood) would prepare to make their own way.

gplauche:

I wonder if maybe you are confusing or conflating 'diminished capacity' with 'diminish ability' or 'low level of skill'. The former is fairly objective, tied as it is to childhood development and other obvious things like severe mental retardation, being comatose, severe brain trauma, going senile or suffering from severe Alzheimer's, etc. Roderick is not talking about simply not exercising your rational capacity well, for whatever reason.

 Well, I'm pretty radical on this question (Szazian.)  Maybe I'll grant you comas, though.  However, youth doesn't seem to work.  If he wants to say that 2 year olds are diminished, and 20 year olds (normally) aren't, and there's no precise age where the change happens, then just how do we decide a particular case?

JAlanKatz:

 Well, I'm pretty radical on this question (Szazian.)  Maybe I'll grant you comas, though.  However, youth doesn't seem to work.  If he wants to say that 2 year olds are diminished, and 20 year olds (normally) aren't, and there's no precise age where the change happens, then just how do we decide a particular case?

Well, I think it is largely context dependent. These things can't be determined a priori. It will depend upon cultural values, the maturity of the particular child/youth in question, who else is involved, the parents, the particular issue (e.g., sex, purchasing something, etc.), the particular situation, etc. This is something for a libertarian legal system to decide. And I do believe that children/youths can challenge their parents in court to gain independence prior to the generally accepted age, in which case they would have to provide evidence of competence.

20 years, btw, is probably far too high an age of consent. The range will probably vary from 12-18, and will probably tend more toward the middle of this range.

gplauche:

Well, I think it is largely context dependent. These things can't be determined a priori. It will depend upon cultural values, the maturity of the particular child/youth in question, who else is involved, the parents, the particular issue (e.g., sex, purchasing something, etc.), the particular situation, etc. This is something for a libertarian legal system to decide. And I do believe that children/youths can challenge their parents in court to gain independence prior to the generally accepted age, in which case they would have to provide evidence of competence.

20 years, btw, is probably far too high an age of consent. The range will probably vary from 12-18, and will probably tend more toward the middle of this range.

 Well, I used 20 because I figured it would be uncontroversial - i.e. no one would claim it was too low, and everyone would agree that by the time 20 was reached, the person was old enough. 

On the first paragraph, that's exactly my objection. There are two problems.  First, a person's rights are now being determined from the outside, on the basis of someone else's judgment of capacity.  Second, it means that until the case goes to court, there's no way to know if the person is or is not entitled to do things.  So the person selling the cigarettes may or may not be doing something wrong, and has no way to know other than to try it and see what the court decides.  Not only does this expose him to to great risk, but even if he's not found to have done something wrong, he still is having to close his store every other day to defend a case like this, if a lot of people buy cigarettes at his store.  I think everyone would prefer to know ahead of time what acts are acceptable.

JAlanKatz, I'm not sure I agree that a morality based on a difficult distinction would be arbitrary or cruel; it could just be that this sort of problem is genuinely difficult to deal with, and it's not going to be clear what's right in every situation.  Given that our initial intuitions about this problem were exactly that, I find that conclusion perfectly satisfying.  It's like you're skeptical of an answer which says "That problem you've been struggling with is a hard one, because it involves two conflicting values which are difficult to separate from each other," and would seemingly rather get an answer saying "Actually, that's an easy problem to deal with. If we apply this simple principle, we'll see that the answer is clearly _________."  Personally, I'd be much more skeptical of the latter, and am glad I've arrived at the former!

JAlanKatz:

I think everyone would prefer to know ahead of time what acts are acceptable.

Well, I'm not sure they wouldn't know ahead of time according to this scheme. General rules of thumb would likely develop. Also, I think a non-statist legal system would obviate many of the difficulties you worry about. People wouldn't have to worry about an arbitrary government cracking down on them. Lawsuits would cost money and the loser would pay, so it seems to me that people would be wary of initiating lawsuits they weren't confident they could win.

If you have a better solution that would meet the objections Roderick already offers, I'm interested in hearing it.