Archive | April, 2008

I see that on the basis of some rather vague passing comments in her book Short Answers to the Tough Questions, Mary Ruwart is being accused (see here and here) of defending pedophilia and child pornography.

Well, she’s clearly not doing that. But her position is vague enough to be ambiguous among several different positions. (She does begin the section with the disclaimer that determining the correct libertarian position on children’s rights is a “hotly-debated issue” where libertarian theorists “need more definition.”)

Let me first say what I take to be the correct libertarian position on these issues, and then take a look at what Ruwart says.

Consider the following three facts:

Fact 1: Consent is not genuine when a person’s capacity for meaningful consent (not just to sex but more broadly – e.g., to commercial contracts) is impaired, as it is in the case of immature mental/psychological development. (Thus some superficially consensual transactions are not genuinely consensual and so receive no protection from libertarian rights theory.)

Fact 2: Not everyone reaches maturity at precisely the same age. (Thus there’s no reasonable point at which to set an absolute universal cut-off without condemning some who are innocent and protecting some who are guilty.)

Fact 3: Nobody passes from immaturity to maturity overnight; the transition is always a gradual one. (The capacity to give meaningful consent to the sale of a pack of chewing gum surely emerges earlier than the capacity to give meaningful consent to a mortgage contract; likewise, given the asymmetries of power involved, the ability to give genuine consent to sex with someone a few years older arguably emerges earlier than the capacity to give genuine consent to sex with someone many years older.)

Fact 1 gives us a reason to favour some form of age-of-consent restrictions. Facts 2 and 3 give us a reason to make those restrictions sensitive to details of context rather than imposing a uniform limit across the board. For example, one way of dealing with Fact 2 is to establish an age limit below which the burden of proof shifts from the party claiming that the person’s consent was not consensual to the party claiming that it was. And one way of dealing with Fact 3 is to make the shift in burden of proof sensitive to age difference between the parties.

With regard to child pornography, I think criminalising the mere ownership or possession of it is legally incoherent, not just for the usual libertarian reasons (though those too) but on the grounds that the prosecutors of the crime would have to violate the very law they’re enforcing in order to maintain possession of the evidence needed to prosecute – unless of course prosecutors are exempted from the laws that apply to everybody else, but that would be hard to square with impartial justice. Moreover, if it were illegal to own photographic depictions of real-life rights-violations then all the news footage from wars, police beatings, etc. would have to be banned as well.

The real issue concerns the production of child pornography. If such production involves actual sex acts (as opposed to, say, digitally simulated imagery) by children below the age of consent (as defined above), then it’s rape and should be banned. If not, then there’s no direct victim, and so the production cannot legitimately be combated by legal force (though vigorous and systematic boycotts, protests, and shaming would be quite appropriate). (The argument that its production should be banned to protect indirect victims, on the theory that child pornography makes its readers more likely to commit child rape, would have no grounds for resisting the demand that all literature advocating and/or glamourising rights-violations be banned – which would deprive us of most of world literature.)

Okay, with those distinctions in hand, let’s turn to Ruwart. Here are some of the relevant passages, with my comments interspersed. (If you want to see more of the context and don’t own the book, go to its Amazon page and use the “Search inside” function; the section begins on page 41.)

Children have the same rights (and responsibilities) as adults, but normally exercise them with the help of a loving parent or guardian because they are physically incapable of assuming them at birth.

This passage recognises, properly, that children can have rights and yet, owing to immaturity, be unready to exercise those rights. Ruwart mentions only physical incapacity here; I would want to add psychological incapacity, but Ruwart here does not commit herself either to affirming or to denying this addendum.

A libertarian society would not have laws that discriminate on the basis of age.

In this section she’s talking not about sex but about things like the ban on selling alcohol or cigarettes to minors. I agree that those laws are silly. (My mother, when she was a child, regularly bought cigarettes and alcohol for her father; I don’t think anyone would claim the problems of underage drinking and smoking were more severe in the 1930s-40s than today.) And as Ruwart goes on to point out, if concerned parents wanted to organise a boycott against stores that made such sales to children they would probably be effective, since “parents are generally better customers than the children.”

But do the age-of-consent restrictions I favour “discriminate on the basis of age”? Well, sort of; but the real basis for the “discrimination” is not age per se but diminished capacity, of which immaturity is one but not the only cause; so I don’t know whether Ruwart is ruling out enforcement of age-of-consent restrictions as such. If she is, I definitely disagree with her (though I don’t regard such disagreement, if it be one, as being as fundamental as I would if I had greater confidence in coercive methods and less confidence in voluntary methods).

In practice, children’s rights are limited by their inability to take responsibility for their choices.

This is another passage that might look as though Ruwart is granting psychological as opposed to merely physical barriers to genuine consent. But the example she goes on to give is that “a child who wishes to work, but can’t convince his or her parents to provide the necessary transportation, will be unable to exercise that right,” which is a completely different issue; so the matter remains unclear.

Children forced to participate in sexual acts have the same rights and recourse as a rape victim. We can, and should, prosecute their oppressors.

Children who willingly participate in sexual acts have the right to make that decision as well, even if it’s distasteful to us personally. Some children will make poor choices just as some adults do in smoking and drinking to excess; this is part of life.

Ruwart’s critics seem to be assuming that she is attributing to children generally a capacity for meaningful consent to sex. In fact she doesn’t say that, though of course she doesn’t deny it either. Her reference to “children who willingly participate in sexual acts” says nothing about what the conditions for willing participation are, and her aforementioned disclaimer suggests she may not have a fully worked-out position on the matter. She clearly assumes that some children are capable of meaningfully consenting to sex under some circumstances, but hardly anybody denies that; see Fact 2. (No ages are mentioned, but given the legal context, “child” presumably means anyone currently regarded as below the age of majority, and so would include, say, a 17-year-old’s having sex with an 18-year-old, which surely can be consensual.)

When we outlaw child pornography, the prices paid for child performers rise, increasing the incentives for parents to use children against their will.

This is somewhat confusing. Does the phrase “outlaw child pornography” refer to outlawing possession or production? It seems to me that Ruwart is committed to banning (the typical case of) production by her earlier statement that when children are “forced to participate in sexual acts” (which is surely the typical case of production), they should be treated as “rape victims” and we should “prosecute their oppressors.”  So I presume that the phrase refers to outlawing possession. In that case, I agree with her conclusion – that possession shouldn’t be banned – but the argument is one which, if it’s good, would seem to tell against the banning of production as well. Now there may well be cases in which attempts to ban a genuine rights-violation can actually make matters worse (Spencer maintains, for example, that British attempts to ban the slave-trade made the conditions of slaves worse by motivating slavers to pack their victims into ships in greater numbers, and to dump them into the sea at the appearance of the British navy); but we should be very hesitant, I think, before deciding that no means of banning such rights-violation is viable.

The age of majority for marriage, work, etc. is most often established by custom of the society and will vary with the individual’s circumstances rather than being dictated by law.

Notably, Ruwart is evidently here endorsing, rather than rejecting, the concept of an “age of majority” – something one would never guess from what the critics have been saying. But it’s unclear whether Ruwart is rejecting legal enforcement of any and all age-of-consent restrictions in favour of custom-based pressure alone (in which case I disagree, as per Fact 1 above), or whether she is rejecting legal enforcement only of those age-of-consent restrictions that fail to “vary with the individual’s circumstances” (in which case I agree, as per Facts 2 and 3 above).

In any case, while Ruwart’s comments are certainly not fairly described as “defending” pedophilia or child pornography, they are admittedly ambiguous as to exactly what she thinks should or should not be banned by force of law. In particular, her position (if she even has a fully settled one) is ambiguous between the correct position (mine, of course) and various incorrect (un-Longian!) positions. Here’s hoping that the reportedly forthcoming revised edition will be less confusing on this issue.

(Note: No Agorist Demerits on this post because it’s about Ruwart’s political philosophy, not her campaign.)

[Clarification, since some are misunderstanding (or pretending to misunderstand) my Fact #2: When I say there “there’s no reasonable point at which to set an absolute universal cut-off,” I don’t mean there’s no age below which sexual consent is impossible for anyone. I’m saying that setting the age of consent at that point will be setting it too low in many cases.]