Raising the age of sexual consent

TOWARDS JUSTICE - Emmeline Aglipay-Villar - The Philippine Star

I believe in the power and potential of the youth. Youth alone is no barrier to capability we have seen young people not old enough to legally drive shake the world for the better.

Yet in spite of the achievements of individuals and their potential as a whole, the youth are still incredibly vulnerable. Neither prodigious talent nor precocious maturity can erase the fact that in interactions between youth and adults, the scales of power tip drastically towards the elders. In the hierarchies of power that gird society, age is much more than just a number.

To be a minor is to vastly limit your capacities in terms of finances, autonomy, knowledge, experience and (for the youngest) physical strength. Youth is many things, but it is also a vulnerability – and there will always be those who prey on the vulnerable. This is particularly true when it comes to sex, where the innocence of the young – actual or assumed – makes them targets.

When it comes to sex, and defining sexual crimes, there has been an international movement towards emphasizing the aspect of consent, rather than focusing on the problematic metric of force. But in the case of minors, as with all situations where there is a clear imbalance of power in the relationship, asking whether there was consent is not enough.

What matters instead is capacity. By this we mean the capacity to comprehend all that is or can be involved in the sexual act – does the party understand what sex is, what it can change in bodies and in the relationships between people? But we also mean whether the party is able to fully exercise their autonomy. Are they of sound mind, or inebriated? Are they in a position where they can actually say no, or one in which the imbalance of power is so great that even if they nominally consent, it is impossible to tell if such consent was impaired?

It is to prevent the latter situation from arising that many nations have enacted laws setting a minimum age a person must be for sex with him or her to be legal. This standard is frequently referred to as the “age of consent”, but what these laws are actually about is capacity. While the age at which a person is deemed legally competent to consent varies around the world, in the Philippines that age is currently set at 12 – one of the lowest in the world and the lowest in Southeast Asia. Long the subject of criticism, two committees of the House of Representatives have recently approved a consolidated bill which, amongst other things, raises the age of consent to 16.

It’s a change that cannot come soon enough. As UNICEF has stated, “the objective of the minimum age of sexual consent is to protect adolescents from sexual abuse and from the consequences of early sexual activity on their rights and development.” Those twin risks are much more present at the age of 12 than at 16, and other regulations already acknowledge this. A 16-year-old is allowed to acquire a student license and sit behind the wheel of a vehicle, entrusted with at least partial responsibility for a machine that can prove dangerous to life and limb. A 12-year-old wouldn’t even be allowed in a cinema to watch a movie with nudity and predominantly sexual themes (which would merit an R rating) – and yet that same 12-year-old can legally consent to sex? That’s a disconnect that this bill has a chance to finally rectify.

Age of consent laws seek to protect the autonomy of the young by proscribing sexual relationships where their consent is inherently impaired. However, the other part of protecting that autonomy is acknowledging that youth – specifically during the teen-age years when puberty arrives – is a time of transition and experimentation. We must be careful to avoid a situation where laws meant to protect the young instead end up punishing them.

This is why it’s fortunate that the approved bill carries a close-in-age exception, otherwise known as a “sweetheart clause” or a “Romeo and Juliet” provision:

“Consensual, non-abusive and non-exploitative sexual activity with a minor below sixteen (16) years of age shall not be considered as statutory rape: provided, that where the parties are fourteen (14) years of age and above, the age difference does not exceed four (4) years: provided, further, that where the sexual activity involves a minor below fourteen (14) years of age,  the age difference does not exceed three (3) years.

For purposes of the immediate preceding paragraph, a party whose consent is vitiated as contemplated in this section by reason of a mental, physical, psychological condition or disability shall be considered in determining the difference of age.”

Undoubtedly there are those amongst the youth that are sexually active, and more often than not this occurs with their peers rather than those who are much older than them. Without close-in-age exceptions, youthful indiscretions between consenting young people will become crimes with penalties that put teenagers behind bars for the rest of their lives. Far from protecting the youth, this type of statute would condemn them. It would also result in youths hiding the fact that they had sex for fear of prosecution, to the detriment of their reproductive health.

Sexual relationships between the young, while potentially dangerous and ruinous, do not possess the inherently exploitative character of that between a youth and a much older partner. Without that imbalance of power, the State loses its justification for drastic interference in the private lives of its citizens. Of course, it is still possible for relationships between those who are close in age to be characterized by coercion, abuse or an imbalance of power, which is why the close-in-age provision is qualified by “consensual, non-abusive and non-exploitative” and why mental, physical and psychological conditions are taken into account.

Raising the age of consent in the manner that this bill does ensures that children are protected against sexual violence. And,with the allowances provided by the close-in-age exception, more young people would be able to navigate the path to adulthood without fear.

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