Specific thought about pedophilia

Economics Political Theory
1

Hello everyone!

I was flicking through the threads of the forum, and I came upon this particular thread: Pedophilia and sexual slavery in Libertopia

As to the question regarding pedophilia, I thought of something. When a child is at an early state of life (a state where it cannot yet reason) it could, in fact, be a violation of the non-aggression axiom to engage in intercourse.

First of all, we may consider this act to be somewhat rape since not all participants of the trades are consenting. The child, not being able to reason yet, is not able to make a well-founded decision, which is why the adult can be charged.

However, in the aforementioned thread, people are talking about fourteen-year-olds. Now, we may conclude that the fourteen-year-old is capable of making a rational decision based on reason, and thus it cannot be considered rape and therefore not a violation of the non-aggression axiom.

I am not advocating the use of an age of consent; but when someone, e.g. parents to said child, try to sentence the pedophiliac, the bargaining mechanism in relations to the enforcement of law must determine whether the child is capable of reasoning.

Please discuss!

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@Peter: The issue in the other thread was somewhat tangential and had more to do with “what would stop rampant child abuse in Libertopia (aka private law society)?” as if there is some natural tendency within the government to devote a sufficient amount of resources to prevent child abuse. The State doesn’t care about children which cannot better be illustrated than by the documentary on the Franklin Child Abuse scandal I posted in that thread. It’s a full documentary but it’s worth watching to understand just how deeply corrupt the present world order is. The corruption reaches to the highest echelons of power. It is an intrinsic expression of the corruption of power; this corruption is not an alien element in an otherwise uncorrupt power structure. It is inherent to the structure of power itself - watch Kubrick’s Eyes Wide Shut to get an idea of what I mean.

The essential fallacy here is identified by Frederic Bastiat in his booklet, The Law:

The claims of these organizers of humanity raise another question which I have often asked them and which, so far as I know, they have never answered: If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? The organizers maintain that society, when left undirected, rushes headlong to its inevitable destruction because the instincts of the people are so perverse. The legislators claim to stop this suicidal course and to give it a saner direction. Apparently, then, the legislators and the organizers have received from Heaven an intelligence and virtue that place them beyond and above mankind; if so, let them show their titles to this superiority.

They would be the shepherds over us, their sheep. Certainly such an arrangement presupposes that they are naturally superior to the rest of us. And certainly we are fully justified in demanding from the legislators and organizers proof of this natural superiority.

Only if public leaders were actually more pious and decent than the general public should we believe that a private law society would be rife with child abuse and other ills that could be addressed through charitable work. In reality, all the evidence is to the contrary: our leaders are much more despicable than the general public. Which leads to the inevitable conclusion that child abuse and other social ills must actually be much greater under the present order than they would be in a private law society.

Clayton -

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On the issue of age-of-consent (or, perhaps the conditions of consent), I fully agree there has to be a decision procedure as to whether a child is competent to make its own decisions and, if not, who can make decisions in its stead. I see no reason that the common law could not solve all these, admittedly complex, issues.

Clayton -

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Now, we may conclude that the fourteen-year-old is capable of making a rational decision based on reason, and thus it cannot be considered rape and therefore not a violation of the non-aggression axiom.

A 14 year old is also capable of being self-consciously obedient to adults.

And wait till those 14 year olds are 40, then ask them what they think now of the reasoning skills they used to make ‘rational decisions’ back then.

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A 14 year old is also capable of being self-consciously obedient to adults.

Capable but it is likely? There are several factors that would effect this. i.e. in a free society, would cultural attitudes to running away from home would be different? Further more, what is this obedience contingent upon? Is the child being threatened?

And wait till those 14 year olds are 40, then ask them what they think now of the reasoning skills they used to make ‘rational decisions’ back then.

Then do the same thing when they are 80 :wink: . How many times have you heard an old person say something to the effect of “Well that was in my youth see . . . bla bla bla”

FYI I’m not taking sides on this issue however, I do think that several issues which complicate the matter need to be considered before saying that its wrong or illegal.

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Oh I am not trying to say it’s wrong, and certainly not defending such statutory regulations. Merely pointing out that at 14, a lot of them really are “just kids.” Not to mention ‘old age and treachery beats youth and skill,’ or something like that.

I like to think I’m a pretty smart fellow, and always thought I was, but I shudder at some of the choices I made at that age that seemed rational at the time.

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Fair enough. ^^ Forgive me for thinking otherwise.

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I had this same thought myself. I come to find out a friend of my mother’s had sex with my brother when he was 14. My mother found out, and she was very upset. But, my brother was not violated, he was in fact very eager to have sex with her… as I was when I was 14 (but I was not so lucky).

Also, if a 14 year old can commit a crime so heinous as to be tried as an adult, then would it not be proper to give the same benefit in the reverse situation.

This is a moral issue, and I understand that. But that being said, no one is talking about having sex with a 14 year old boy/girl against their will, they are talking about having consensual sex. Does anyone have the right to take a decision from someone else, even in this situation?

I am not interested in such things, but I find the issue interesting, none the less.

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The real debate is not about the particular conditions under which minors can decide to have sex with adults. Rather, the real debate is: what are the conditions under which the minor is recognized by the law to be competent to speak on his or her own behalf and, until then, who gets to speak on the minor’s behalf? If the minor is not recognized by law to be competent to speak on his or her own behalf, then the decision to pursue a tort claim is up to whoever is recognized by the law to be the individual who speaks on the minor’s behalf.

This is in dire contradiction to modern practice where the State is the primary decision-maker in whether a tort has occurred with respect to sex with a minor. We are expected to believe that the State truly cares about children. Nothing could be further from the truth. The politicization of this subject is an ill of society and the consequences are terrible. I can’t enumerate here all the ways that the State contributes to the systematic abuse of children but I will note that the entire body of family law (particularly divorce law) is in a terrible state of affairs and anyone who has been put through the meat grinder of family law knows what I’m talking about.

Clayton -

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@Clayton

I know that you don’t try to predict what the law would be if it were private, but I’m curious if you have an opinion as to what would constitute an adult in your mind. I like the way Rothbard put it:

Source

It’s interesting the wide variety in what other cultures/states one is considered an adult. Just a quick check on wikipedia shows that the age of majority has a range of 15-21, and of course in Judaism adulthood was 13 (in the past). Interestingly, from the wikipedia article Age of Consent:

It seems that it is only within the last 150 years that the age of consent has risen to where it is. As the state got stronger, the age of consent rose. I’m certain there is a connection.

/end rambling

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I really don’t know why Rothbard says that. I don’t see why that is the one, true test. I really think it would vary by locale. The one thing I’ve learned about law from personal experience is that it is highly localized. Statutory law gives the impression that vast swathes of area can have legal uniformity but the fact is that there can be huge variations in what the law in effect is even from county to county. When you look to the past and find issues - such as the age of consent - that were apparently “unregulated”, I take that as a hint that it was likely an issue that varied considerably from locale to locale and that’s why it seems to us, today, to have been completely unregulated. I’m not sure if there’s scholarly historical work on the subject but I think it’s unlikely that, say 200 or 300 years ago, anybody could have sex with any minor without consequences or irrespective of the consent of the guardian. I think it’s more of a situation where there was wide variation and most common law was unwritten at the time, so you just had to know the rules of the road for a particular locale.

Clayton -

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Also, it’s important to note the role that the weakening of property rights has played in this, particularly the rise of welfare. To put it as bluntly as possible: welfare subsidizes bastardy. This means that parents are much less concerned with the chastity of their daughters since an illegitimate child is of little financial consequence to the grand-parents. This, in turn, has undermined the natural means by which sex with minors had previously been controlled… through constant parental monitoring of the child’s whereabouts and associates. Instead, letting your daughter roam around town and visit people’s house you never heard of is considered perfectly natural parenting today. To suggest that there might be something wrong with this is to be backward… almost bigoted.

As always, the State is the root of all evil.

Clayton -

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If you take away the freedom of consensual sex because the child is “not able to make choices for him/herself”, then the child is not capable of any interaction with strangers, including buying in stores and riding on buses.

Remember - the act can end at any time either party says “stop.” If the minor indeed is not ready, then he/she may end it. If they are alright with it (no scarring of youth), then it will go through.

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I disagree. Think of it like this: If a man (or woman) were to ask a woman (or a man) about having sex. Now, if the woman just laughed and continued the talk with some friends, she did not indeed say no. Is it okay for the man to rape her given that she’s not screaming stop or something similar? No, it is not.

I think comparing said pedophilia example with shopping trips and what not cannot be done properly. I am specifically relating to minors not being able to talk or reason because of their (low) age.

If we conclude that the minor is not ready then he/she may not be able to stop it due to the fact that the minor cannot speak yet.

15

I’m sure it’s only “pedophilia” in regards to pre-pubsescent children. No one thinks it unnatural for teenagers to be sexually active, surely… They just don’t like the idea of a huge age gap in a relationship. Does a 15yro dating a 40yro seem any weirder to you than a 25yro dating a 50yro?

Anyway, you have to be a bit nuanced with this sort of thing. Even in the country where I’m studying to practice law today, the courts take a nuanced approach with certain age-related matters. Admittedly not sexual matters, where the age of consent is set rigidly by statute at 16 - that’s obviously too important to allow for nuance and the consideration of individuals as individuals. /s The same principles could and should apply.

In terms of basic Roman-Dutch common-law, someone is considered an “infans” from the age of 0-7. They have no capacity to contract at all, and they do not incur liablity of any kind for their own actions. They cannot give consent to anything in a legally significant sense. Then from the age of 8 up to age 12, they are a “pupillus”, and there is a rebuttable presumption in favour of the position that they don’t have the relevant capacity, but evidence may be led to prove otherwise on an individual basis. Generally speaking, a contract with a “pupillus” will not be valid unless he was assisted in entering into it by his parent/guardian (i.e they sign it too). From age 13 up to the age of majority (adolescens), the presumption works the other way around - that they do have the relevant capacity for consent or liability, as the case may be, but evidence may be led to prove that they don’t on the basis of their youth. You can imagine that it could relate to the particular type of consent or liability in question… It would be more likely that a 14yro would be considered liable for buying a $100 iPod, but perhaps not for co-signing a $3 000 000 mortgage or joining the army.

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Remember - the act can end at any time either party says “stop.” If the minor indeed is not ready, then he/she may end it.

Even a child who is paralyzed by fear from the onset, and cannot so much as utter a sound, let alone manifest a hint of protest?

This reminds me of dialogue from the movie Ghandi, where an inquest took place in India following General Dyer’s infamous Jallianwala Bagh massacre. At one point General Dyer was asked what provisions he had made to help the wounded. General Dyer responded curtly that he was ready to help anyone who had applied. He was then asked, “General, how does a child, shot with a 303 Lee-Enfield rifle, ‘apply’ for help?”

Likewise, how does a child, who is completely fearful, and intimidated into a kind of submissive paralysis, to the point of not being able to utter a sound of protest, end it, let alone say “stop”? Advantage molestor, who, absent an explicit refusal, may presume consent.

And what about explicit consent that is obtained by the same sort of fear or intimidation - only far more subtle? For example, a very kindly, very large, Bubba enters your cell, gives you a pack of cigarettes, and proceeds to put himself on you at will. Very gently, very “lovingly”. He has not threatened you, he is not physically forcing you to do anything. And if you say no, he will honor that, and leave. But you know full well that isn’t the end of it, and that it is not the whole story. There are repercussions to everything you say and do. Including say “stop” to a guy like Bubba.

Now, for the sake of further discussion, let’s say that you did give Bubba your explicit consent. No problem then? One question that remains, in a world where choices are based on risks and rewards: Had you had been all-powerful, unaffected by the prospect of risks or rewards, would you have really desired (not just consented, but actually desired) that Bubba be on top of you in the first place? That seems to me, between two people who are otherwise deemed capable of giving consent, to be a fairly reliable test of the “quality of your consent”, whatever that might have been.

I am not saying I have the answers, but I can state with some confidence that what you wrote, about a child simply saying “stop”, does not even begin to be the answer.

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Thanks for this contribution! I think this just goes to underline my point that some of the armchair legal theory that Rothbard et. al. engage in from time to time is less than satisfactory for application to the real world. I don’t think Rothbard’s “run away test” is sufficient… my guess is that he got the idea from reading about common law to begin with which shows that the root source of innovation in legal ideas is not philosophers but legal practice. Legal theory is a further specialization of legal practice but I don’t think enough respect is given to this discipline by some libertarian legal theorists, Rothbard among them. For sure, the discipline has been almost hopelessly corrupted by the State but that doesn’t mean that it ought not to be a discipline in its own right.

Clayton -

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Under the Misesian definition of “rational”, you were acting rationally. To make choices is to be rational.

Fun Fact: in Catholicism, the age of accountability traditionally begins at completion of the seventh year.

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This is akin to a person being raped at knifepoint. Where’s the consent? I agree though that Wheylous’ wording is ambiguous, since the phrase “end it” is typically used in a telic sense.

If being all-powerful and unaffected by the prospect of risks and rewards is your standard for consent, then it seems that none of us ever really truly consents to anything, and the concept removes itself from discourse altogether.

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There certainly is, I’d say. The movements to prohibit child labor and establish mandatory child education came about at the same time. I’m willing to bet that most jurisdictions have very similar, if not identical, legal ages for dropping out of school and being able to work without restriction.