Child Molestation, Child Porn, and Jurisprudence
Controversy versus Taboo
"Controversial" is insufficiently descriptive of the issues which this article raises and attempts to dispose of. Libertarians are no strangers to contention and dispute, nor do we shrink from supporting a minority position if that position passes the litmus test of principle.
The problem with issues of child molestation and child pornography is not that they engender controversy, but that they don't engender controversy. These issues long ago exited the realm of public discussion. They are taboo ("excluded from use or mention," emphasis mine), except when their alleged practitioners are dragged out to the literal or figurative pillory, at which time it is permissible for one to beat one's chest and loudly declaim one's renewed dedication to that taboo. Or, of course, to remain silent (if that -- silence may engender suspicion).
For lack of public debate, the parameters of taboo remain blurry. There's no consensus of definition to balance a consensus of condemnation. This vagueness reacts in deadly combination with the tendency of the state to translate social norms into enforced law.
A consensus that condemns theft, murder or any other number of ills can form around a hard nucleus of debate as the meaning and scope of those terms and the appropriate punishment for violation of them. The debate itself -- influenced by the wax and wane of various advocacy factions taking part in it -- creates the parameters within which legislation will operate. The "right" side may not always win, but all sides are free to argue their cases.
Taboo puts an end to debate; an end to debate throws an undefined social consensus at the state and that definitional vacuum is then stuffed full of the arbitrary and the artificial. The consequences of this fiat will, almost certainly, eventually extend far beyond the parameters that the original taboo encompassed.
Nowhere is this effect more obvious than in the cases of child molestation and child pornography.
That these issues are taboo is clear, and should be made more clear by the fact that, at this point in the article, I find it necessary to issue a disclaimer. I am not, nor have I ever been, a child molester or child pornographer; I've never been accused of being a child molester or child pornographer; I've never in any way, as best I can tell, conducted myself in a manner that would place me within, or close to, either the arbitrary and artificial parameters set by the state, or the "fuzzy" parameters which the taboo itself represents.
That these latter parameters are, indeed, fuzzy should be made clear by the fact that, having read my disclaimer above, I find it necessary to partially disclaim the disclaimer. As a minor, I engaged in several sexual acts with other minors. While this is not uncommon, in some jurisdictions (and, no doubt, according to the reasoning of some factions which would exist within the debate, if there was a debate), those activities might, have indeed, placed me in the class which the main disclaimer attempts to exclude me from, or in the class of victim to such a class.
Within what we tend to think of as "the civilized world," child molestation is a nearly universally condemned activity, generally defined as occurring when an "adult" engages in sexual acts with a "child." I regard this condemnation as right and proper. So, I think, will most of those who read this article. The condemnation is of sufficient universality that it certainly constitutes a social norm.
There is, however, considerable (if generally unexpressed due to the prevailing climate of taboo on the subject) variance of opinion on the matter of how "child" and "adult" are defined. This variance of opinion is important, not because all such opinions are correct or because one must be chosen, but because it is the missing element in the parameters of the taboo, and the element which has been substituted for by legislative fiat.
Dictionaries abound with definitions of "child" and "adult" and cultures, historically and at present, are rife both with standards, rituals and ceremonies for marking the dividing line between them and for prescribing or proscribing particular behaviors of, and interactions between, the two classes.
It's tempting, given the diversity of definitions and standards available, to abandon any attempt to define "child" and "adult" and leave the state to its arbitrary postulates. There is, however, a common thread that seems to cut across cultures and that will, I think, serve us well in examining the whole issue.
In most cultures, "adulthood" implies that one is recognized as both free to exercise all prerogatives available to a member of the society in question and as bound by all restrictions (as well as covered by all punishments) for exceeding those bounds.
And, in most cultures, "childhood" is defined in terms of not having yet achieved a state which entitles and obligates one in those ways. It's a dependent definition. A child is "not an adult."
The means of determining when an individual has crossed the line from "childhood" to "adulthood" may be as arbitrary as those of the state, or they may consist of some test or demonstration, or some combination thereof; this latter is properly exampled by the Jewish customs of bar-mitzvah and bat-mitzvah, which take place at an arbitrary age (13) but which follow an extensive period of instruction and testing in the Torah and the obligations of a Jew and culminate in a demonstrative recitation and speech at a "coming of age" ceremony.
I believe that the difference between "childhood" and "adulthood" is best described as an individual having crossed the line between being unable to exercise the prerogatives of, and be held accountable for violations of the restrictions imposed upon members of, the society in which he or she lives and being able to do so.
As an individualist, and as one who lives in a multi-cultural society with all that that signifies, I further hold that the proper dividing line, for legal purposes, between "childhood" and "adulthood" is marked by the question of competence.
There is, in fact, a basis in American jurisprudence for handling evaluations of "childhood" versus "adulthood" on that basis:
- Persons over the arbitrary statutory age marking "adulthood" are, routinely, held by courts to be incompetent and relegated to the care of guardians. These rulings may stem from a determination that a person is inherently developmentally disabled, or that he or she has become incompetent due to mental illness or age- induced mental infirmity.
- Persons below the arbitrary statutory age marking "adulthood" are, routinely, extended adult entitlements ("emancipated minors" who take control of their own financial affairs on the claim that their parents or guardians are administering those affairs incompetently or for their own benefit) and adult consequences (juveniles "tried as adults" for crimes of which they are accused) by the courts as well.
It seems clear to me that American (and, presumably, European and other "civilized") jurisprudence recognizes, in some ways, that the distinction between "childhood" and "adulthood" does not subsist in naming and enforcing an arbitrary age marker, but in evaluating the competence of the individual in question in any particular matter.
This logic, however, is not generally applied to "age of consent." The arbitrary age marker is sacrosanct; if a statutory "adult" is accused of engaging in sexual acts with a statutory "child," the defense that the "child" in question is, for all practical purposes, an "adult" may not be presented to a jury for consideration.
Time for another disclaimer: I have not thoroughly researched arbitrary statutory ages and practices of jurisprudence in countries outside the United States. There are, apparently, some countries which have no "age of consent" laws at all. The countries seem, for the most part, to also be countries which have a large measure of extra-legal application of religious writ to sex outside of marriage, however. I am limiting the scope of this article primarily to the United States both because I suspect that I am addressing a largely American audience and because it is not within my current ability to cover the comprehensive, worldwide picture with the thorough research that it deserves.
Data on "age of consent" laws is available for your perusal at ageofconsent.com. I am using those statistics, although I am told that some of them are rapidly being superseded, because they represent a starting point which has, at one time or another, been verified as accurate. That some of the particular numbers may have changed is irrelevant to the general case.
Within the United States, "age of consent" laws vary from state to state, with a low of 14 (Iowa, Missouri, South Carolina) and a high of 18. This is quite a spread (pun not intended), and underpins the case I am attempting to make.
Is there any particular reason to believe that a 14-year-old Iowan is inherently more competent than a 17-year old North Dakotan to consent, or not consent, to sexual relations with another person?
Is there something in the water that stunts the mental development of Oregonians, leaving them incompetent to make such choices until they are 18? Something that is absent from South Carolina's water? South Carolinians are considered fully competent to do so at 14 and 16, depending on their gender.
I don't agree that any of these arbitrary age designations have anything more than a tangential relation to reality. They exist because child molestation is, properly, regarded as a criminal act. They exist as arbitrary designations because child molestation has taken on the characteristics of taboo -- since the issue can't be openly discussed, drawing a number out of a hat has been substituted for crafting a rational system of differentiation between "child" and "adult" where it is concerned.
This substitution of random fiat for rational differentiation carries with it several side effects -- none of them good.
- Irrational laws are not generally uniformly enforced by the police. The Baton Rouge police are not likely to haul in a 19-year-old female for having sex with her 16-year-old boyfriend. That's a good short-term outcome, of course ... but do we want our law enforcement agencies selectively ignoring the law? And to what extent might a Baton Rouge police officer be corrupted by the knowledge that he has an "offense" that he can hold over this 19-year-old to get, for example, sexual favors for himself?
- It's difficult to get convictions on the marginal cases of offenses against irrational laws. If that 19-year-old does find herself in court, the jury is not likely to see her as a "child molester." They're likely to acquit, having judged not only the facts, but the law. This, again, is a good short-term outcome. But jury nullification, while a sound doctrine, is best kept to a minimum by not having stupid laws that juries feel compelled to nullify. And what about the prosecutor who just got his head handed to him? Having spent a portion of his budget on this case, and lost, isn't he less likely to bring future cases of its kind to court? Will a real molester -- a 21-year-old who gets caught having sex with an 11-year-old, perhaps -- walk free because of prosecutorial "gun-shyness?"
- And there are, of course, the actual convictions. While I submit that a 25-year- old who has "consensual" sex with a 3-year-old indeed belongs in jail, I am not at all convinced that an 18-year-old high school senior who is found in the back of his car with his 16-year-old sophomore girlfriend, both sans culottes, deserves a stay in the gray-bar hotel. We have enough criminals without manufacturing more.
My thesis, thus far, has depended on a conflation of society and the state as we know it, or at the very least an assumption that the latter's rules and actions will be largely dependent upon the former's norms. I regard this as a defensible construct, but it is, nonetheless, a construct. A momentary digression, for the purpose of applying my thesis to minimal states and free societies, is called for.
All but the most nihilistic among us recognize that any foreseeable future society will incorporate, as one of its basic features, institutions of "law." The form and content of these institutions may vary. Law and jurisprudence may be centralized monopolies of the state, or decentralized, competitive sets of market offerings, but they will both exist. All society results in dispute; therefore, all society requires means of dispute resolution.
Further, it seems likely that law and jurisprudence will incorporate, and evolve along with, the norms, assumptions and taboos of the societies which they serve.
Finally, any foreseeable future set of societal norms, whether enforced by a centralized, decentralized or competitive market apparatus, is likely to include a proscription on the activity I've herein referred to as "child molestation." Any future institution of law or "jurisprudence" is likely to be called upon to dispose of cases involving allegations of that activity.
In other words, the offense of "child molestation" does not go away with the disappearance of the state as we know it, or with the disappearance of "age of consent" laws as we know them.
Even in the most extreme alternative scenarios -- for example, one in which all law becomes tort law and non-adults are considered property of their parents or guardians rather than "people" -- the issue will continue to exist. Was a particular act a consensual act between two people, or was it the act of a tortfeasor (the "adult") against the property (the "child") of another? Some person or institution will be called upon to render a verdict.
It is my argument -- or at least my hope -- that the modification in current thinking which I propose below will serve future institutions of law and jurisprudence and in varying environments as well as it would serve were it adopted by current institutions in the current environment.
Imagine, if you will, a rope with two anchors. One of these anchors is the arbitrary language of statute. The other is the institution of the jury. The rope itself is what we might think of as the barrier of justice, held taut against particular actions when tension is maintained between the institutions at either end, and occasionally raised or lowered when one of those institutions acts to move it.
Arbitrary statutory language remains, to a large degree, fixed and immutable, at least with respect to a particular defendant accused of a particular action at a particular time. The legislature may change the law, but in most even nominally civil societies it does not do so ex post facto or in response to the plight of a particular defendant. Its movements are slow; their pace is dictated by the slow osmosis of changing societal norms, across the barrier of elections and into the composition of the legislature itself. This process might be more immediately responsive to such changes in a market-driven system, but it would still not be instant.
A jury, on the other hand, operates with
respect to particular cases and is free to raise or lower the barrier of justice when it perceives that the unique aspects of a particular case require it to so act. The jury is even free to effectively nullify the will of the legislature (and when juries do so on a regular basis, they act as agents of the aforementioned osmosis).
Naturally the state, ever jealous of its status as the promulgator of arbitrary statutory language, attempts to minimize the ability of juries to nullify that status. It does so in many ways, among which are attempts to deprive jurors of knowledge of their authority to nullify and, more importantly to this thesis, by creating an ever more tangled web of arbitrary statutory language which juries do, naturally, at least take into account in any given case.
In cases of alleged child molestation, the state attempts to bind juries with arbitrary statutory language. "Your role," the state, in the person of a prosecutor or judge, says, "is not to determine whether the law is right or wrong in this particular instance. Your role is only to ascertain whether the arbitrary statutory language has, or has not, been violated." The taboo is thus preserved: discussion of the real issue has been avoided. The jury evaluates only the facts, leaving the law itself untouched and unquestioned.
My proposal, crafted by way of abrogating the line of taboo, is simple: there should be, as there are in many other areas of law, rebuttable presumptions which the prosecution and defendant are permitted to address and which the jury is entitled to evaluate.
Let us examine the multiple bases involved in a complaint of child molestation. There are several elements.
- Did sexual intercourse, or some other sort of sexual contact, occur? This is a question of fact. If the jury finds that no such intercourse or contact occurred, that's generally the end of the issue. Acquittal is nearly certain, for the good reason that the allegations are baseless in their entirety.
- If sexual intercourse, or some other sort of sexual contact, occurred, did both or all parties to said intercourse or contact consent? If one party plainly did not consent, then the other parties are prima facie guilty of rape, sexual assault, child molestation.
It is on point two that the state intervenes on behalf of the taboo. Using arbitrary statutory language, the state holds that persons below a given age x are inherently unable to meaningfully consent to intercourse or other sexual contact. The state, in the persons of the prosecutor and the judge, attempts to prevent the jury from evaluating the issue of consent in cases involving alleged victims below the age of x.
My proposal, of course, goes to the abrogation of this arbitrary statutory admonition. In cases where the alleged victim claims to have consented to sexual intercourse or other sexual contact, determining that alleged victim's ability or inability to meaningfully do so is a process properly falling within the purview of the jury's deliberations.
There should, in other words, be a factor of rebuttable presumption which prosecutor and defendant are free to address.
In what direction -- for or against the ability of the alleged victim to meaningfully consent -- should such a presumption be tilted?
Traditional American jurisprudence would put the presumption squarely in the defendant's corner. It is the affirmative burden of the prosecution to prove that consent did not and could not have taken place, not the defendant's to prove that it did or could have.
I confess, however, to a certain arbitrary bent of my own.
I regard it as obvious that a two-year-old cannot meaningfully consent to intercourse or other sexual contact and unlikely, in decreasing measure, that four-, six-, eight- or ten- year olds could do so. Somewhere around the age of twelve, my personal arbitrary presumption begins to shift from doubt of ability to doubt of inability -- that is to say that I consider it likely that some 12-year-olds might be able to meaningfully consent to intercourse, and more likely, in increasing measure, that 14- and 16-year-olds are able to do so. I regard it as obvious that an 18-year-old, unless he or she is in some way mentally or emotionally incapacitated, is capable of rendering meaningful consent to intercourse or other sexual contact.
Aren't my prejudices in this regard just as arbitrary as the state's edicts on the matter? Probably. However, I don't think it's especially arbitrary to posit some sort of continuum which might be used as a referent for how the burden of proof and tilts and for how the rebuttable presmuption equation changes.
In the case of a 20-year-old accused of molesting a two-year-old, I'd favor a rebuttable presumption toward the prosecution's argument that said two-year-old could not have consented. The burden of proof would be upon the defendant to prove, to the jury's satisfaction, that said two-year-old not only did, but could, meaningfully consent to the activity for which the 20-year-old is on trial (assuming that the activity did, in fact, take place -- if it didn't, acquittal is called for in any case).
In the case of a 35-year-old accused of molesting a 16-year-old. I'd favor a rebuttable presumption toward the defense's argument that said 16-year-old was capable of rendering meaningful consent. The burden of proof would be upon the prosecution to prove otherwise (assuming that the activity did, in fact, take place and that said 16-year- old did attest to having, or was established to have to have formally, consented).
As I've pointed out above, such presumptions are not alien to current jurisprudence. When a juvenile is arrested for a crime, a presumption exists that said juvenile is a "child," and not responsible for his or her actions. Prosecutors, however, may attempt to rebut that presumption by going to court and asking that said juvenile be "tried as an adult." In such cases, what the prosecutor is arguing is that, contra the arbitrary statutory definitions, the person in question was capable of meaningfully judging the effect and legality or illegality of his or her actions and is therefore fit to be held liable for those actions.
The same presumption exists in cases of juvenile emancipation. While a person below the arbitrary statutory age of "majority" is presumed a "child," said "child" may approach the court with a claim that he or she is fit to assume control of his or her life and economic affairs -- that, contra the arbitrary statutory language, he or she is, in reality, an adult.
If a judge is competent to rule on such arguments, is not a jury competent to evaluate the same arguments as applied in the cases it hears? What, other than the suppression of discussion that accompanies taboo, militates against allowing a jury, rather than the legislature, to exercise that power of judgment?
Not a damn thing.
Issues of child pornography fall outside of, or at least closer to the borders of, taboo than child molestation per se. I can't say with any certainty why that might be -- unless perhaps it is attributable to the robust nature of debate on freedom of the press/freedom of "expression" -- but there exists at least some minimal basis of public discussion which might serve as an effective basis for rational jurisprudence.
The current debate centers largely around "virtual" child pornography -- depictions which are created digitally or artistically and in which no real children participate in any way. This debate obviously -- or at least it should be obvious -- is a tempest in a teapot. The advocates of suppression of "virtual" child pornography cannot produce a victim; therefore they are going to face extreme difficulty in attempting to create a crime. Equally obvious, from the standpoint of utility, is the fact that "virtual" child pornography potentially reduces the incidence of child molestation involved in producing "the real thing."
Let's turn our attention to the "real" child pornography: depictions of actual children (defined either under arbitrary statutory language or under the argument against it which I present above) engaged in sexual acts and purveyed for the purpose of catering to a customer's prurient interest in same.
There are two fundamental distinctions -- one of offense and one of property -- which the state fails to make in its handling of child pornography.
The first distinction -- the distinction of offense -- is this: the offense involved in child pornography is the act itself, not the depiction thereof. Child pornography is, by definition, documentary evidence of rape, molestation or other sexual assault. A person possessing it is a rapist, child molester or other kind of sexual assailant ... or an accessory after the fact to rape, child molestation or other sexual assault. It is for these offenses, not for the depictions per se, that their creators and possessors deserve to be prosecuted. And, in the case of the possessor, possibly not even for that.
My last point should become more clear with the second distinction -- the distinction of property. It seems eminently reasonable to me to hold that a victim of rape, molestation or other sexual assault is entitled, as a matter of course, to such restitution as is possible. One form that this restitution could take would be ownership of, and rights in, such depictions as might have been produced of the rape, molestation or other sexual assault.
In the case of minors or children, a court might place them under seal and in trust until such time as said children become adults and choose to take custody of their property. It might further enforce the copyright laws against anyone purveying reproductions of that property.
But, when the victim reaches majority (whether according to arbitrary statutory language or some proceeding for establishing "adulthood"), he or she would be entitled to take possession of their property and use it any way he or she deems desirable.
Any way? Yes. He or she might choose to have it destroyed, or to keep it private, or to reproduce and sell it to those whose prurient interests run to depictions of sexual acts involving children. The child, now an adult, might finally realize real, bankable restitution of at least one sort for the horrors of childhood.
But what about the people with said prurient interests? My argument on their behalf is based in both principle and utility.
There is no argument of principle which would justify forbidding a person to view such depictions as he or she finds satisfying unless, in doing so, he or she victimizes someone. On the contrary, principle would dictate both that the former victim be allowed to pursue such profit as is possible using the property gained as restitution, and that the pruriently interested be permitted to purchase that property from its rightful owner.
In terms of utility, the case is even more clear: For as long as the prurient interest in question exists, a market for material which caters to that interest will exist. Do we prefer that that market be served by further rape, molestation and other sexual assault, to the benefit of rapists, molesters and other sexual assailants, or that it be served by former victims who profit thereby?
There are some, of course, who will hold that not suppressing said market will encourage those with the prurient interest in question to act on that interest by committing rape, molestation or other sexual assault themselves. Proponents of this argument have, for several decades, attempted to establish a causal link between pornography and crime. Their efforts have been signally unsuccessful; and even giving those arguments the benefit of the doubt, is it not likely that those with a tendency to view pornography and commit crime will view pornography and commit crime whether viewing pornography is itself a crime or not?
Here, of course, taboo plays a role as well. One cannot advocate on behalf of the property rights of the victim, or on behalf of the prurient interest of the consumer, without laying one's self open to accusations of weakness toward the perpetrator of the crimes incident to production of "real" child pornography. With that in mind, I'll refer the reader to my disclaimer above, and add to it that I have never engaged in the production of, nor do I indulge in the possession of, child pornography of any sort.
The legitimate purposes of law are open to interpretation.
At the libertarian extreme, law is regarded as proper only to the defense of innocence against aggression, and to retaliation/seizure of restitution where such aggression occurs. It is clear that arbitrary statutory "ages of consent" and an across-the-board prohibition of "virtual" or "real" child pornography militate against the libertarian conception of law's purpose.
In the political "mainstream," law is often regarded as a legitimate instrument for enforcing societal norms. Such norms, however, can only be coherently translated into law when open discussion of the norms themselves is possible. When taboo becomes involved, there is an inherent distortion of societal norms, and that distortion in turn results in laws which not only set off a cascading set of unintended consequences but which militate against the effective enforcement of the norms themselves.
It is only at the authoritarian extreme, where the imposition of law for the sole purpose of extending political power prevails, that the current paradigm of "age of consent" or the current regime of prohibitions on child pornography are congruent with either principle or utility.