Understanding Consent - Part 2
June 20, 2011
Updated January 2, 2018
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Adapted from Beth Swagman's December 2010 blog "Con-cent: When Your Consent Isn't Worth a Penny"
In Part I, we said that consent means both permission to act and to understand the consequences of those actions. We gave a couple of examples in which age or cognitive ability could cross out consent. In some instances, the law places a restriction on consent—not because of age or cognitive ability—but because there is a higher societal value to uphold. This article will look more closely at that issue.
All the states and provinces have laws which declare sexual acts with minors to be criminal, i.e. criminal sexual conduct. To help us understand the seriousness of these actions, a specific law may refer to first, second, third, or fourth degree offense, the first degree offense being the most serious and fourth degree offense being the least serious. When communities use the "degree of offense", the differences between the categories are usually the age of the victim, whether there was penetration of the victim, and whether force or coercion was used.
In addition to laws which declare sexual acts with minors to be criminal, a related law might specify at what age a minor can give consent to sexual acts. If the child is below the age of consent, the judicial system will likely hold the offender responsible for the criminal sexual conduct. The judicial system will uphold the intent of the legislative community (which makes the laws) that children need to be protected from being sexually assaulted. Those who commit sexual crimes against children below a certain age will almost always face the harsh penalties of the law.
Now we want to hone in on a very specific situation: the age of consent when the person is a minor.
Although it does vary, in most states and provinces, the age of consent is 16. Below age 16, a minor is regarded as unable to give consent; 16 or older and the minor is regarded as able to give consent. A good guess is that everyone reading this blog is able to give consent to sexual acts. That does not mean, however, that everyone who is of age to give consent to sexual acts has given consent to sexual acts.
Prior to 1980, many states and provinces had rape laws on the books which indicated that a person had to demonstrate in some physical way that they did not give consent to the sexual assault. Could the person document they said "no"; did they lash out and strike the assailant; did the victim try to flee; was the assailant harmed, etc. By the 1980s, courts began to rule that for many reasons a victim could not—in fact should not—lash out at an assailant. At the same time, there was a growing body of knowledge that suggested that some victims, because of their relationship with the assailant, could not give consent to sexual acts. Because their assailant was someone they knew and trusted, or because that person held a position of power, the victim could not give consent to the sexual acts. This body of knowledge was gradually making its way into the courts and into the legislatures where laws were beginning to be formulated.
In addition to protecting the minors whom legislators felt society had to protect from sexual predators, legislators also passed consent laws to recognize that minors by the time they obtained age 16 were likely to know about sexual acts and understand the consequences of engaging in sexual acts. The laws weren't intended to approve of sexual acts between teenagers, but rather to protect teenagers who did engage in sexual activity from being labeled criminals. As a further gesture to protect teenagers from sexual predators, legislators created statutory rape laws which were designed to protect teens from sexual predators who were adults (18 and older) who were dating teens. So North American culture for decades has determined that protecting children and teenagers from sexual assault was a priority and placed a high value on protecting these minors—particularly by proscribing harsh penalties for those who assaulted minors.
Now comes the societal priority to meet up with the growing body of knowledge regarding minors and their relationships with adults who have positions of power or trust. Just as legislators were creating laws to criminalize sexual offenses between a physician and a patient, between a therapist and a client, and between a pastor and a parishioner, so, too, legislators began to realize that teenagers were vulnerable to adults who had power or positions of trust over the teens and who could misuse that power and trust to engage in sexual acts with the teens - to the detriment of the teens.
Now we have a convergence of several different concepts. We know that sexual acts committed against minors are criminal acts. We also know that by a defined age, a minor can give consent to sexual acts and thereby engage in sexual acts with another person that are not criminal. Yet, despite the ability to give consent, laws were created that said society needs to protect teens—even when old enough and cognitively capable of giving consent—in situations where the other party to the sexual acts is a person in authority or trust over the teen.
So the law says a teen is old enough to give consent (can give permission and knows the consequences of the acts), but when the other party is a parent, a teacher, a physician, or a pastor, then consent may be crossed out. The teen can't give consent even if the teen is of age and knows the consequences of the act. The person in power or in a position of trust shall always safeguard the relationship and keep the teen protected from harm, or else face the penalty of law.
What's next? The Bible speaks (or does it?) about consent.
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