Among the 130 comments received in response to Negotiating a little girl’s knickers down were a number of excellent ones on “consent”, including the “informed” and “affirmative” varieties. One commentator, Lensman, kindly agreed to my suggestion that his contribution should appear as a guest blog – by no means his first, as regular readers will know. I thought it was fine in its draft form but it now appears below in a more polished and extended version that must have cost its perfectionist author a lot more time to prepare. He has apologized to me (quite unnecessarily!) for its being “heavy going”. I say it is a serious subject that deserves, and indeed demands, the sort of careful analysis he has given; I trust others here will agree.
- What do the words “consent” and “informed”, mean?
According to Collins English Dictionary:
Informed: (adjective) 1. having much knowledge or education 2. based on information
Consent: (verb) to give assent or permission (to do something); (noun) acquiescence to or acceptance of something done or planned by another
From these we can venture that “informed consent” could be “the information-based or knowledge-based acquiescence to, or acceptance of, something done or planned by another”.
This creates a model of sexuality where one party is necessarily active and the other passive which, in my experience, is not realistic. Additionally it should not be assumed that the child must be the passive partner in an interaction (see section 8: “Informed consent” and “intent” – the child).
- In what circumstances is “informed consent” required over and above (what I will call) “simple consent” ?
Generally “simple consent”’ is sufficient provided that whatever being consented to
i/ doesn’t remove the capacity to give, maintain, or withdraw consent,
ii/ doesn’t require specialised knowledge to be able to make a consent decision.
“Informed consent” is commonly solicited in connection with medical procedures and from participants in research. Both require “informed consent” because of
i/ risks to the participants,
ii/ to protect the surgeon, researcher, etc., from having to bear the entire responsibility for any adverse effects on the subject of the surgery/research,
iii/ because the subject will also no longer have the capacity to give or withdraw consent during the actual treatment or research (the subject will either be anaesthetized or will be taking part in some sort of double-blind test where they must not know the exact nature of the tests they are submitting to).
- Is “informed consent” required for sexual relationships between adults?
No. Generally the consent that happens between adults is implied consent which “is not expressly granted by a person, but rather inferred from a person’s actions and the facts and circumstances of a particular situation.”
Consent is essentially expressed by the willingness or eagerness of the actors to engage in the activity in question and assumes prior adequate knowledge. Plus, in such interactions there is the assumption that the participants maintain their capacity to give or withdraw consent as the interaction develops and changes.
- How meaningful is the popular idea of sexual “consent”?
The legal (and popular) conception of “consent” implies prior agreement to the entirety of a sexual episode.
However, in practice, sexual consent works very differently. It is more of an on-going negotiation in which the contract is being constantly re-written.
What does not happen is that a couple, each time prior to initiating sexual activity, discuss in detail what they will do, and draw up a “sex-plan” that will be strictly adhered to and which outlines how they will proceed from hugging to kissing, kissing to groping, groping to undressing, undressing to foreplay…
The only situation in which something like this may happen is with prostitution.
The legal model of consent could be visualised as a house where there is only one single, unnegotiable, step for getting from downstairs to the bedroom upstairs.
In reality, sexual interactions will proceed from the “downstairs to the bedroom” by multiple small steps. Each step consists of one of the partners making a foray into a new activity, which the partner can either accept or reject.
At each stage both partners are implicitly thinking “Do I want what is happening to continue?”, “Do I want to do what s/he is proposing next?” Either actor can give or withdraw their consent to these actions.
This means that there are actually many moments in an intimate encounter where the progression of the interaction can be either halted, or diverted. The law sees “consent” as a unitary kilogram of “macro-consent” – whereas the actual practice of intimacy is more an accumulation of a thousand separate grams of “micro-consent”.
- Children and “simple consent”
A baby is perfectly capable of expressing pleasure or displeasure at something being done to him, and children are very good at knowing what they want and don’t want, like and don’t like. If you’ve ever tried to persuade a reluctant child to eat its broccoli, or suggested a trip to the pool on a hot day, you will see how capable children are of consenting.
But “consent” implies some intellectual evaluation of, and detachment from, the action being performed or proposed.
I suggest four things are required for this intellectual consideration to occur:
a) that the situation is comprehensible for the person,
b) an awareness that acts can have consequences beyond the act itself,
c) a realisation that pleasure (or lack of pain) is not a sufficient justification of itself for consenting to an act (e.g. would the child eat something it knows is poisonous because it tastes good?),
d) knowledge of their own capacity to consent, or withhold or withdraw consent, to acts, or indeed a whole relationship.
According to these criteria a baby can’t give meaningful consent to being suckled. However the fact that this doesn’t place mothers at moral fault for doing so shows that consent is not the be-all-and-end-all of how we should act towards others.
Provided that the criteria listed in section 2 above are met there is no reason to deny children the form of consent which applies to adult sexuality. Just as adults use “negotiated on-going micro-consent” (initiating activities, accepting/encouraging activities that please, rejecting activities and suggestions that don’t…) so can children. (any subsequent references to “simple consent” can be taken as shorthand for “negotiated on-going micro-consent”).
- What information do people need in order to qualify as “informed” with respect to sexual interactions?
Many decisions a child has to make will require additional information: jumping into a lake, learning to ride a bike, having their ears pierced, joining the brownies or going on a school trip. Children can, and are expected, to give, or withhold, “informed consent” to many things in everyday life.
Those inimical to child sexuality often evoke “informed consent” as a magical formula which renders all child-adult sensual interactions wrong. However the exact nature of the required information implied by the word “informed” remains (deliberately?) nebulous and protean.
In compiling the following list I’ve excluded factors which, given a good relationship, are covered by the protection of “simple consent” – most notably “knowledge of sexual acts”: a child does not need comprehensive knowledge of every possible sexual act any more than she needs to know about the “off-side” rule in order to kick a ball round the garden.
i. the risk of pregnancy
ii. the risk of STD
iii. knowledge of the nature and extent of social stigma associated with child/adult sexual/sensual relationships
iv. the possibility that s/he may change his/her mind about what happened at some time after the act is over
Note that all of the items on this list have one thing in common: they are about things that have an effect beyond the time-span of the sexual acts themselves; they are about possible results of the sexual activity.
Also, note that if the children in question are prepubescent the first two factors are much less significant than for adolescents. Non-penetrative sexual acts have in and of themselves no consequences outside of the time-span of the sexual activity itself.
- Can a child qualify as being sufficiently “informed” that their consent becomes acceptable?
At what ages children have the awareness of their own capacity to consent or not to sexual activity is hard to evaluate since it is not something that is touched upon either in education, child rearing, research or an average child’s experience.
WEIRD societies (Western, Educated, Industrialized, Rich, and Democratic) have a poor record when it comes to providing children with a sexual education. Children are repeatedly taught about “bad touch” and exhorted to “just say NO”. This is done in such a way as to avoid the child getting any notion that she herself can decide what she does with her body. No clear idea is given as to what a child must say “no” to and therefore such “education” doesn’t contribute to a child’s capacity to give or withhold consent.
The extrinsic “knowledge of the nature and extent of social stigma associated with child/adult sexual/sensual relationships” is something children may be aware of (“paedo” has become a play-ground insult) but is it likely that a prepubescent can have a proper knowledge of the stigma associated with adult-child sex?
- “Informed consent” and “intent” – the child
An important issue is also whether “informed consent” can be given progressively as a relationship develops. “Informed consent” is often thought of as requiring the child to have a comprehensive knowledge about sex etc. before she can engage in it at even the most basic level. As if a child needed to know about mitosis and meiosis before she can enjoy someone stroking her bottom.
I suspect that “progressively informed micro-consent” is the mechanism by which all activities proceed where the child develops new skills and knowledge in partnership with another person. Think how a child learning gymnastics will concentrate on acquiring the information and skills necessary for the next step. A good teacher will pass on his knowledge in small quantities and help the child assimilate it through practice and experience.
The intent of a child who willingly and proactively engages in a sexual relationship is clearly one of someone who is showing an eagerness to become “informed”, as are all children who are engaged in play and exploration. Such a child is at the same time giving “simple consent”, but is also seeking to become progressively “informed”.
Society normally encourages this progression and calls it “learning” and “education”. However when it comes to “sex and sensuality” society does all it can to maintain children in a condition of being uninformed.
Indeed society prevents children from seeking the knowledge and experience necessary for them to be sexually “informed” by:
- withholding information from the child i.e. lack of sex education and openness on the subject in society at large,
- prosecution and stigmatisation of adults who educate, or wish to educate, a child,
- stigmatisation and even prosecution of children who seek to be so educated.
A lack of openness, of proper sex education and the stifling of children’s capacity to decide what they do with their bodies and emotions, makes it harder for children to be able to give “informed consent”. However, if we accept that a child in a relationship can become “progressively informed” then these are not insuperable obstacles.
But the stigma society loads onto such relationships is an insuperable obstacle.
The trauma often experienced by adults who have participated in non-coercive intimacy with adults occurs not at the time of the sexual activity but when the child/adult grows old enough to experience the stigma such activities provoke, and re-contextualise them as “abusive”. Can a child make an informed decision on how she will react in, say, ten years when this stigma really starts to bite?
This is an extrinsic source of harm imposed on such relationships by society. While this stigma exists there is a significant risk that harm will eventually result from even the best conducted, most loving child/adult intimate interactions. It is unlikely that a child engaged in a relationship with an adult could be made fully aware of this stigma – if she were, and had internalised it, she would be unlikely to wish to engage in the sexual activities.
This very serious risk of trauma is one that neither the child or the adult can reliably forestall.
Children can give “simple consent” (“negotiated on-going micro-consent” ) to sex but society creates conditions which make it impossible for children to give fully “informed consent”.
First, society denies children the concepts and information by which they can think about and make sense of feelings and emotions they experience in their bodies and minds. Society then says children cannot give “informed consent” because they are “innocent” (read “ignorant”). Society use the ignorance it creates to justify the very creation of that ignorance.
Even if a child does adequately fulfill the normal criteria for being “informed” (i.e. those that are assumed in adult-adult sex) there is one criterion that will ensure that the child cannot ever be fully informed: the knowledge of the nature and extent of social stigma associated with child/adult sexual/sensual relationships. If the child is ignorant of this, she clearly is not “informed”; if she is aware of the stigma, faced with such a horrific prospect, she is unlikely to wish to engage in the sexual activities.
In a society where such relationships were not so heavily stigmatised, in which children were given the conceptual tools by which to be aware of their bodily integrity and autonomy, they would be able to give “informed consent”.
But all this is missing the point: society’s talk of “informed consent” is a smoke-screen, a sleight of hand, a boxer’s feint.
When Antis talk of “informed consent” they do not do so out of concern to define the criteria necessary for a child to consent. They do it out of an awareness that evoking “simple consent” doesn’t adequately do the job of shutting down child sexuality. “Informed consent” is their next line of defence.
Present an Anti with a hypothetical child who is sexually experienced, who is knowledgeable, who is independent-minded and autonomous, who lives in a society where adult-child intimacy is licit and who is eager to engage in intimacy with an adult.
Ask him ”Can that child consent to a relationship with an adult?”.
Furnishing us with a prime example of begging the question, his answer will be “No, of course she can’t! She’s a child!”
Last time, in What to do about the Twitter twats? I wrote:
“I have drafted a letter to the police, calling for an investigation into the individuals who have posted incitements to violence and death threats.”
At the end, I asked for advice:
“Should I send that letter I drafted or would it just be a waste of time and effort? Is there anything else that can be done? Your views would be most welcome.”
Thanks for all the comments made. I think I probably will send the letter, but before I go ahead I’ll be consulting a solicitor next week for his professional input.