Are libertarians opposed to any and all “age of consent” laws?
Note: there have been threads on this subject before. The larger point of this thread is to connect your reasoning to the following question:
Are libertarians opposed to any and all restrictions on employing children (child labor laws)?
Here is my current thinking. Your input and guidance would be much appreciated:
“No.” An adult may interact with children, but in my opinion, some interactions should be outlawed. The interactions which a child cannot comprehend should be outlawed.
An adult may make a macaroni picture with a child, but that same adult may not sexually penetrate that child, even if the child and the child’s parents say it’s okay.
Where these two questions merge rather conveniently is with the cases of child prostitution and child pornography. If an adult, let’s say a fifty-year-old man, wants to hire a five-year-old for sex, is it libertarian to allow him to do so? Should it be legal for a five-year-old to be hired by a producer of pornographic material? Walter Block echoes Rothbard in Defending the Undefendable, claiming a child becomes an adult when “he leaves the home, and is able to support himself,” and that “[i]f a person of tender years is effectively prohibited from working…[then] he is excluded from ‘homesteading his own adulthood.’” So what if the child is able to support himself by being a prostitute or being hired by a child pornographer?
If you argue that an exchange between an adult and a child can be an act of aggression even with the child’s “okay” and mom and dad’s blessing (say, they allow their five-year-old to be a prostitute, or if the kid “homesteads his adulthood” and pursues such a career without his parents’ blessing) – and in the case of the fifty- and the five-year-old, constitute rape – then couldn’t an adult employing a child in a dangerous factory constitute slavery?
My current response to the second question is “No, not all child labor laws are unlibertarian.” There is certainly a difference between a child working at a lemonade stand selling lemonade and a child working in an alloy factory. (Note: I realize the owner of such a factory would likely prefer to hire someone with more experience, but my question is not an economic one. I’m also well-aware of the Utilitarian arguments for allowing children to be hired to work in dangerous conditions where they learn important skills; my question has to do with consent.)
The difference between a child working at a lemonade stand and a child working in an industrial factory lies in the child’s understanding of the nature of the two jobs. So my current answer to the first question is “No” because not all children understand the nature of certain jobs, just as not all children understand the nature of certain adult interactions. It’s okay for a five-year-old to sell lemonade for money, but not okay for a five-year-old to work in some other dangerous conditions (if you’re not convinced by my example of an industrial factory, use your imagination. Whatever you think is a dangerous job will work here, since my question pertains to an absolute: no restrictions are justified?)
I actually don’t see the point in distinguishing between “adults” and “children” here. As I see it, the principle is simply one of consent requiring prior understanding.
I think everyone acknowledges that children cannot give consent. The disagreement is about how to determine which children, at what age, can give consent, since “children” is an abstraction, and not all children are alike. Libertarians tend to argue against a blanket age-standard for all children, because certainly people mature at different rates. Some 16 year olds are far more mature than some 30 year olds. In the absence of an arbitrary standard, legal (in)competence would presumably be decided on an ad hoc basis by judges, in the same way as adults can be brought before a judge and determined to be legally (in)competent. I don’t see this posing a special problem. What counts as a competent person, as opposed to an incompetent minor, is hard to define a priori, but we all kind of “know it when we see it.” Like homesteading, it will depend on the norms prevailing in society at the time. For example, in modern America, the idea that one does not reach adulthood until age 18 is absurd by historical standards, but I would argue that indeed people in modern America mature later than people in, say, 18th century America, because a soft life is an easier life, a more sheltered life, etc. So, again, it depends on the norms of society, which presumably will reflect the realities holding at that time.
The real problem re children is custody. Who has it and what does it entail? IMO, there is simply no way to deal with the case of children within the framework of existing libertarian ethics, unless we want to consider children as pure property. In the framework of existing libertarian ethics, there are no such things as semi-persons (can’t give consent but have rights), nor positive non-contractual obligations (caretaking of children). Yet these concepts clearly must be invoked to handle the case of children - unless, again, we want to say they are the pure property of their custodians. So, I think we should feel free to treat children as the special case they are, and design an ethical-legal framework specifically suited to handing them, tabula rasa.
This is an interesting way to look at it; I’ve been thinking about it almost all day. Since we can’t have perfect information, we can’t have perfect understanding. Where is the line drawn?
What is the minimal amount of understanding required for someone to start using methamphetamine, for example.
And in response to gotlucky, first of all, I’m going to completely ignore the first part of the post to which you linked. That’s disgusting.
I guess this point is worth responding to:
The Utilitarian argument is probably the weakest argument you could make here. The question is whether or not it should be legal, based on whether or not a “child” can consent.
I think that’s where a “reasonable person” standard comes in. But I don’t think there’s any way to establish that objectively.
There’s also the issue of risk. I think that, if a person isn’t appraised of the risks of something before he does it, then he could sue for damages. But if he explicitly accepts the risks, then I think such a suit would be invalid.
I haven’t discussed this subject in a while but I have long asserted the only valid evidence of competency to consent is a lack of dependence on charity.
The five-year-old prostitute may well be able to support him or herself with that career, and thus not be dependent on charity. Does that mean the fifty-year-old soliciting the services of the five-year-old is not coercive?
Please explain how the five-year-old transitioned from their dependence on the charity of others [e.g. a guardian] to self sufficiency [e.g. prostitution]. A five-year-old does not magically become a prostitute upon the waiving of some magical wand and I do not know anyone that was born self sufficient.
After reading your above comments, I think you very much need to respond to what I wrote.
EDIT: There were actual points in what I wrote, despite the crude language. You don’t have to quote what I wrote, but you are doing yourself a serious disservice by dismissing my points.
So after you made the kid a better offer because you wanted to help the kid out what is the problem? Did you make the kid a better offer because you wanted to help the kid out or were you only interested forcing other people to take care of a kid that you do not want to take care of?
No. That is not my point. Forget children. Why do adults have sex? There are only three reasons I can think of:
For the pleasure of it.
To have a child.
Using sex to gain something (i.e. prostitution).
So, we can see that two of these don’t apply to preadolescents. As anyone who has had sex before knows, penetration can be painful for the woman if she isn’t, ahem, “prepared”. I can only imagine how painful it must be for a child to have sex with an adult male. What makes you think that a child would consent to a situation of nothing but pain? People choose pain only if they know it will lead to pleasure (or satisfaction) in the future. So, what reason would a child have to choose the pain of sex?
I can think of only two reasons:
They were coerced into having sex. In other words, they were threatened, so they “chose” to have sex because the threat is worse.
Prostitution. Children would choose sex because they know that they need it in order to gain something such as money. (Doesn’t that sentence just sound wrong? Seriously, you need to really think about why this is wrong.)
Now I ask you, what child is going to prostitute him or herself for nothing less than survival? Seriously. Do you know any little children? They burst into tears when they bump themselves. Even 8 year olds still cry over pain that really isn’t that bad. But penetration? Are you fucking kidding me?
Children do not just “consent” to sex in a vacuum. You need to understand context. If a preadolescent is engaging in sex, the only two options are that the child was coerced, in which it is blatantly rape, or the child needs to prostitute themself in order to survive.
Again, one of my points was, IF YOU ARE LIVING IN A SOCIETY IN WHICH A CHILD NEEDS TO RESORT TO PROSTITUTION IN ORDER TO SURVIVE, PASSING A LAW WILL ACCOMPLISH NOTHING.
You dismissed this argument because you felt it was utilitarian, but there is nothing utilitarian about this. The point is that a society that has child prostitution as legal is so fucking degenerate that child prostitution is the least of its concerns.
"IF YOU ARE LIVING IN A SOCIETY IN WHICH A CHILD NEEDS TO RESORT TO PROSTITUTION IN ORDER TO SURVIVE, PASSING A LAW WILL ACCOMPLISH NOTHING."
I think that sums it up well. Maybe one day some of these people so worried about the kiddies will start up “Run Away From Home Shelter.” Maybe one day I will see an ad on TV that says:
“Parents got you down? Are those daily chores making you feel like a slave? If you have been thinking about running away from home lately and finally get up the courage be sure to stop by the Home Away From Home Runaways Shelter located at 1st & Main.”
