To Anarcho-Capitalists: In a society like the one you advocate, what should be the age of consent and how should that be determined?

Economics Political Theory
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1

The question is bascially just that simple. This was prompted by my viewing another post on child pornography in a libertarian society, and whether the making and sale of it should be permited. One poster basically said that parents own their children until those children reach the age of consent (thus implying that coercively forcing children to participate in sexual acts for the production of child porn, so long as it’s the parents that do the coercing or otherwise allow it to happen, is OK). However, how is the age of consent to be determined? Since any libertarian that supports any sort of state apparatus can easily answer this question by saying that the state can deterimine the age of consent by way of a statute, this question is mainly directed to Anarcho-Capitalists, since possible solutions to this ethico-legal dilemma interest me. However, anyone who wants to put in their two cents to this is free to do so.

Also, as a supplementary question, should there be different ages of consent for different acts, or should there just be one in which you attain total self-ownership and are allowed to do all things for which the idea of an age of consent may possibly be applicable? For example, should you legally be allowed to have sex and drive at, say, 16, but not be allowed drink and smoke untill age 18? What about individual differences in intelligence and maturity levels among children? The examples in the question, by the way, are just that - examples. They do not necessarily reflect my own views on this question.

I’ll be sure to provide my own view on this later on as the discussion progresses.

2
  1. Anything lawful at any age is lawful at every age.
3

Many An-Caps have different ideas regarding “children” and their relationship with their guardians. I do think that you misunderstood part of the argument as indicated by the following:

thus implying that coercively forcing children to participate in sexual acts for the production of child porn, so long as it’s the parents that do the coercing or otherwise allow it to happen, is OK

This view that you seem to be responding to is one that follows the Rothbardian concept of childhood. (that a person become an adult when he/she leaves the parent or guardian) The important concept that you seemed to have missed is that this idea does not allow for a parent to force the children to do anything. The child must be allowed to leave at any point in time to try life without the parent.

For more on the Rothbardian concept of adulthood, I recommend chapter 32 of Walter Block’s Defending the Undefendable:

http://mises.org/media/3536

I don’t agree with all of what Murray said about the distinction between children and adults, but I do believe that his proposal is far superior to the current arbitrary system that is imposed by the state. I actually reject the whole concept of age of consent and think that much of the uproar over it has to do with society’s ridiculous taboos in regards to sex.

4

In my ideal community or city or whatever (not that I thought it out yet) there would be no age of consent. It would be up to the parents to decide what their kids get to do. And if the kids don’t like it, they can leave.

If the parents are awful parents, people in the community to do something to take away the kids or set the parents straight. Just like in the village back in the old day. :wink:

5

I agree with what has already been said. My main objection in that thread has to do with that 50 year old pedophile suggesting to a 7 year old that, “just try it, it’ll be fun I promise” could qualify as “consent” to some of the posters. That is what I do not understand. And if they walk away emotionally scarred, “oh well, they learned from a new experience!” I’m sorry, I find that to be utterly absurd.

I guess what the OP is asking is what determines age of consent. I have no clue. Whenever a kid appears to be mature enough to make decisions like that, I guess. Drug use with little kids I think could be a little different because ultimately the kid/user would still be in control of his body. I wouldn’t concern a defense agency with drug enforcement, but protecting children in some fashion has to be a must.

6

“This view that you seem to be responding to is one that follows the Rothbardian concept of childhood. (that a person become an adult when he/she leaves the parent or guardian) The important concept that you seemed to have missed is that this idea does not allow for a parent to force the children to do anything. The child must be allowed to leave at any point in time to try life without the parent.”

You misunderstand me. I’m not responding to anything Rothbard himself has put forward, but merely the suggestion of someone I saw leave a comment on another thread on this site concerning child pornography. I actually largely agree with the Rothbardian view as you’ve expressed it. I wasn’t stating my own beliefs; I was merely taking a statement made by someone else to its logical conclusion.

"For more on the Rothbardian concept of adulthood, I recommend chapter 32 of Walter Block’s Defending the Undefendable:"

I read Block’s book and found it to be an absolute gem! I would recommend not just the 32nd chapter, but all of it, to everyone as something that, if you’re not already familiar with the ideas expressed in it, will certainly change you way of thinking.

“I actually reject the whole concept of age of consent and think that much of the uproar over it has to do with society’s ridiculous taboos in regards to sex.”

As far as sex is concerned, I agree with you. But just to play Devil’s Advocate, there are other things to consider here besides sex. Just for the sake of argument, let’s say a 10 year-old gets it into his head that he wants to try heroin. Obviously, I think the child’s parents will attempt to prevent him from satisfying this desire of his (assuming they know about it, and the child does not lie or keep this a secret) and will say that, because the child is so young, he doesn’t understand the danger of what he’s doing. Now, yes, this is condescending and it does deny freedom to the child, but I think you’ll agree that a 10 year-old does not possess as much worldly knowledge and sense, generally speaking, as his 35 year-old parents. You may say in response that though this is true, it doesn’t matter because liberty comes before all else, and that if the child finds the regime of his parents oppressive, he has the right to run away to his own little corner of the world and shoot up to his prepubescent heart’s content. Though I’m inclined, however reluctantly, to agree with this, I don’t see the parents in our hypothetical example going along smoothly and peacefully with this, simply acquiescing and saying with resignation, “Oh, well. It’s his body. He can do what he wants to it.” Far more likely, they will actively attempt to prevent the child from not just shooting up and using heroin, but running away from them in general - by force if necessary. Should the parents be allowed to do so, in your opinion?

To be clear, by bringing this up, I am not stating my own position in any way, but simply bringing up points for discussion. I have no children myself (I’m 18 years-old) but I have a pretty good idea of how parents are likely to act if they believe their child is endangering himself.

7

Well for starters the idea of an ‘age of concent’ would be effectively meaningless in a truely anarcho-capatalist society.

However I think in a truly free society, people would be considered and treated as adults with the onset of puberty…historicaly thats how most people would be treated…the idea of ‘adult-hood’ starting in the late-teens/early-20s is a uniquely modern western one…

8

2. Anything lawful at any age is lawful at every age.

Why is there a number 2 before that satement? Is that some sort of list of “Anarcho-Capitalistic Commandments” that you’ve devised? If so, what are the others?

9

There are plenty of things that a parent can do to coax a child into obeying without violating the child’s rights. I think that ultimately, the child can realize that it is not in its best interest to run away at a young age. (think of the classic tv scenario when the child runs plans to run away and then realizes what they’re doing or comes back shortly after) Parents have their ways of controlling kids. They can take away certain privileges which are considered almost sacred to some children. A child that is willing to run away a young age to freely use heroin may have an addiction, which is a serious issue that requires serious attention.

Despite all parental pressure, there are certainly some youngsters that are capable of leaving a parent that doesn’t approve of such behavior. While rare there are children that understand the gravity of their situation. They probably could not support themselves on their own but they definitely could find another guardian. (IIRC Murray may have covered something like this in either Ethics of Liberty or For a New Liberty but it has been a while) In a free market, I’m sure there will be some fairly radical “alternative” foster homes and orphanages.

In conclusion, I believe that parents have a tremendous amount of pressure that they can put on a child without violating any rights, but some children will chose to leave their parents if the situation is serious enough. If a child understands this decision fully and takes responsible action enjoyment of drugs can be compatible with adult care or ,in some situations, full independence. A parent cannot, however, aggress against a child’s private property rights.

I hope this answers your question.

10

The 2 meant I was responding to the second question.

To the first question I only have this to say. I favour circumstantial “parenticide”. Children whose parents hold them captive, such as locked in the basement, and that have a better alternative, such as moving in with an extended family member, may (and should) kill their parents. This applies to a child of any age. The above is an example of the use of the following. A child as property has every right to kill his parents, in addition to a right to do anything else to them and their other property, under any circumstance. It’s the other side of the coin of owning your kids and setting the rules of the house as you see fit.

11

I’m not sure what I think regarding all these issues, but I do wonder if parents have a certain inherent responsibility toward their children. Walter Block, for one, has argued in passing against the idea that procreating is a type of aggression toward the resulting child since the child has involuntarily been placed into a position of helplessness, but I’ve never seen him expand on this objection. If his objection is flawed somehow, I could see a child suing his/her parents, after reaching a clear age of self-responsibiity, for letting the child engage in sexual behavior, hard drug use, etc., which the child later regretted and felt duped into. This possibility would provide an incentive for parents to be certain that a child is acting volitionally and with adequate knowledge regarding any impactful decisions. Such certainty would have to be objective enough to be evident to a later judge.

Such “localized” and customized accountability would solve many of the problems inherent in legislated consent concepts. There would effectively be no “age of consent”, just a bevy of parents strongly incentivized to smoothly guide their children into self-responsibility.

12

I think its very important to keep in mind just how fucked up our current system is with 13 year old kids being labeled ‘sex offenders’ for sending sext messages. The current laws do way more harm than good in my opinion. How much child molestation is currently being prevented from happening right now anyway? I think that a situation with absolutely no laws might actually even be an improvement over what we currently have. Starting from there, I think that its clear that whatever ‘rules’ or standards come into existence in an AnCap society in terms of age of consent (well and every thing else too ;D ), that those rules will be better that what we currently have.

This brings up something that I hate about arguing for Anarcho-capitalism. Even though we don’t claim it to be a utopia, people try and put us on the back foot by pointing out in any way that the result wouldn’t be the complete elimination of human problems. Instead of what should be the standard, ‘is it better that the crap we have now?’ ‘is it better than all the other possibilities?’

13

The idea of an “age” of consent is laughable. There is no age at which an individual suddenly becomes capable of reasoning. It is a gradual process. It would be decided of a case-by-case basis. Once an individual has reason they are subject to the same rights and restrictions as everyone else. This same thought process also grants certain rights to some animals. For example, the average newborn infant possess next too no rights. Whereas a three year old could reason and should posses most rights. On the issue of driving, it would be pointless for us to consider it. If I recall correctly it is technically legal to “operate” a vehicle in California at any age according to the state statute. So long as it’s not done for hire that is. In theory firms or communities could restrict access to roads and other such means of transport, and it would probably be set around 13 or 14. If I recall correctly the age in Alaska is 12, and they seem to be doing fine. As far as sex goes, if the children are in any way mislead then it would constitute fraud, and that would deal with nearly all cases. Drinking and smoking are an interesting point of discussion. I suppose if people were strongly opposed to people of a certain age drinking they could organize boycotts on the suppliers. However, as a teenager I can vouch for the fact that most of my peers had already ingested alcohol and smoked some sort of substance by the age of 15. Even if restriction could be managed, children would still drink and smoke.

14

“If his objection is flawed somehow, I could see a child suing his/her parents, after reaching a clear age of self-responsibiity, for letting the child engage in sexual behavior, hard drug use, etc., which the child later regretted and felt duped into.”

I see the point you’re trying to make, but on the other hand, the idea of what constitutes being ‘duped’ can be stretched quite a bit. At what point is malevolent intent and willful desire to fool someone responsible for their misfortune, and at what point is their own stupidity and lack of foresight or sense to blame? I’m not necessarily sure we shold have laws drawn up to protect people from their own stupidity. The line between genuine fraud and simply the foolishness of the “victim” can sometimes be quite a fine one.

" This possibility would provide an incentive for parents to be certain that a child is acting volitionally and with adequate knowledge regarding any impactful decisions. Such certainty would have to be objective enough to be evident to a later judge.

Such “localized” and customized accountability would solve many of the problems inherent in legislated consent concepts. There would effectively be no “age of consent”, just a bevy of parents strongly incentivized to smoothly guide their children into self-responsibility."

Now you’re speaking my language. I think that is a very good idea, beautiful mainly because of its simplicity. Just have parents TEACH their children right from wrong! Who would of thought something like that actually needed to be said? Well apparently, and sadly, it did. There is often, in parents, a desire to dominate their children and keep them dependent on them by withholding information in an effort to “protect” their kids because “they wouldn’t understand.” Deincentivizing such behavior is a very good idea, in my opinion.

15

A child is a person who has not grown into his rational capacity, and is therefore not competent to exercise his rights. When that condition no longer obtains, the person becomes an adult. He may be a “young adult” but he is an adult nonetheless. Until that time, his parents or guardians have custodianship of his rights; they exercise his rights for him. As long as a person of any age lives in his parent’s house, the parents have the right to enforce whatever rules they make. And as long as a person with a fully developed rational capacity is considered to have the right to leave that house at any time, he has voluntarily consented to those rules. But after that point has been reached, the just limit of parents’ power over their offspring is to kick them out of the house.

The point at which a child becomes an adult differs from one person to another. Therefore, there cannot be a single age of consent; each case must be evaluated differently. What could exist is a default age of “presumed adulthood”. Anyone who wished to challenge the competency of a person of that age would have the burden of proof. However, anyone younger than that age must still be permitted to prove his competency and be declared an adult before the default age. I do not know when that age should be, but I think we can be sure that it should be much younger than the legal age of majority in most (perhaps all) places.

Furthermore, “competency” should refer only to a person’s ability to give consent. The idea that people should be regarded as children until they are as wise as their elders is not consistent with a system based upon consensual relationships, because people always have more to learn. People will - in fact SHOULD - make mistakes. A parent would have no just power to, for example, prevent his 14-year-old daughter from going skydiving merely because he thinks it is a reckless hobby (I am assuming here that the age of presumed adulthood would be at or before 14 years). He would rather have to prove that she is actually incapable of understanding the risks associated with it before he could justly be considered to have the right to restrain her. In other words, after the age of presumed adulthood, the parents of a person would need to prove that their son or daughter is mentally retarded or insane in order for that person to be considered a child in spite of his or her age.

16

I think attempting to centrally plan legislation is a foolish endeavor.

17

We don’t and cannot know. “Age of consent” really wouldn’t mean the same thing at all in a natural order law society that it means in our centrally-planned socialist “law” society. Today, it means “an age below which the State will prosecute an adult for sexually contacting a person” or something along those lines. In a natural order society, it would mean, “an age below which a child cannot meaningfully assert his or her consent to sexual contact, granting the child’s guardian the right to use force to prohibit other adults from attempting to solicit such consent” or something along those lines. It might not even be an age, it might be a standard set of questions or some accepted test which arbitrators customarily administer to assess a child’s emotional competency. It might vary from place to place, culture to culture, race to race. There would certainly be no such thing as “statutory rape” and the wide assortment of hyperbolic punishments for “crimes” which exist only in the over-stimulated imaginations of post-menopausal, CSI-watching obsessives generally called “the American public.” Like other victimless “crimes”, it is not likely that solicitation of sex with minors would itself be a punishable offense. This might hurt ABC News’s Nightline revenues but I don’t think it would make our children any less safe. In fact, we can expect that the norms that would emerge in a customary law system would be far more efficient at exposing and ostracizing the right people and leaving innocents alone (because of the potential to sue false accusers and win punitive damages against them).

Clayton -

18

“It might vary from place to place, culture to culture, race to race.”

It will, in fact, vary from person to person. Whether other people will recognize that fact is another matter.

19

he was referring to the test to see if someone was capable of consenting, not when anyone would reach that point. Of which there would need to be some sort of standardization. A test wouldn’t mean anything if every person had their own test.

It could be that in certain communities they would go the the Mckillen test, which focuses more on x type of questions, and in other communities, the standard would be the Sharpe-Thorton test would focus on Y techniques. (and yes I just made those test names up)

But I don’t think there would be just one adult determining test, or that just because a young adult is capable of making 1 type of adult type decision, that doesn’t necessarily mean that same person is capable of making all types of adult decisions.

Even when considering when these would even be relevant is an improvement on the current system. Currently, if police come across information of so called statutory ‘rape’ they try and crush those people’s lives, regardless of wether or not that was the point of what they were snooping around for or not. In a free society, the only reasons I can see this coming up would be if a parent learns about their child engaging in sexual behavior, the child claiming that it was consensual and the parent suing the person who had sex with their child saying that the claim that the child said it was consensual is invalid, because the child is incapable of making such a decision. The other being if years after engaging in sexual behavior a young adult realizes that he was not capable of making that decision then, which is probably something that is going to be very hard to prove. MIght require old medical records, or analysis of a diary from the time, etc.

20

Good points.

Touching on the theory that the insurance sector would have a lot to do with the production of law in a free society, I will point out that insurers would be interested in determining the capacity for informed consent in all cases, because a person who can give consent can waive liability. Thus they may endorse certain tests of competency in the evaluation of choices and the giving of consent, just as they would do for tests of competency in driving ability, emergency preparedness, gun safety, etc.