[THIS IS A BIG WARNING: The site I am about to link to is thought-provoking and unabashedly pornographic. Yes, I said pornographic. Be expected to be treated to pictures of naked women. Lots of them. And body parts. Lots of them. If you are under the age of 18, click here.
But on the flip side, you will be treated to articles on philosophy and morality. And in this particular case, law.
If you are sensitive to pornographic images, I would recommend using "Readability", which strips all images from pages and makes the text larger and more readable. That is how I read this page, despite no antagonism toward pornography. It just is easier to read.
It is undoubtedly, without reservation, NSFW. I will repeat: NSFW.]
Have you installed “Readability“? Why not? Go install it now. I’ll wait.
Done? You promise? Okay:
Roman Polanski and the Bounty of Childhood Sex is the article I am linking to here. It uses the case of Roman Polanski (both in its anecdotal and criminal case sense) as a springboard for a discussion and exploration of the immorality of child sex laws. Some excerpts:
So-called child molestation, which is actually just an abusive term for childhood sex is not a crime. The reason is simple. The act can be divided into two parts potentially. One is the sex, the other is physical (or excessive psychological – a vague and dubious concept) coercion. It is true that physical coercion can be criminal especially if it involves inflicting physical pain. However, coercion by itself is indifferent to the age of the victim. Coercing anyone to do anything against their will is at the very least immoral. Doing so at the point of a gun is often criminal (Coercing the perpetrator of a holdup to desist at the point of a gun is not considered criminal, but coercing a soldier into battle at the point of a gun may be considered criminal). However, proponents of so-called child molestation make clear that coercion is irrelevant to the supposed criminality of the act since even consensual sex with children is criminalized.
If coercion and age are irrelevant in the spurious criminalization of childhood sex, that leaves the sex. The reason childhood sex is a criminal act must be the sex. But, if sex were the critical element, if sex were in itself damaging or evil, then all sex should be illegal. Apart from a few hysterics and other illiterates, no one would find this to be an acceptable conclusion. Sex is a pleasurable act and an enjoyable experience that, absent external and irrelevant disapproval, need have no deleterious consequences. This principle is as true for children as it is for adults. There is nothing identifiably specific in the child’s mental make-up that accounts for any special harm caused by this pleasurable experience. Of course, any physical activity runs some risk of physical harm, however small. Sexual activity in particular could result in vaginal or anal tearing, especially in a smaller body. But, if that were an applicable principle, the prohibition of sex should apply to dwarves but not to children above a certain physical stature. Indeed the potential for physical damage is an argument not to ban the activity, but to ensure is safe pursuit. Pee wee football is susceptible to far greater damage than mere fucking. But the potential for damage is no reason to ban the sport but rather to make sure the players wear safety equipment.
The case for psychological damage is even weaker because there is a good argument that only a very small portion of psychologically damaging activity (such as torture) merits criminalization. Otherwise every nag would end up in the Big House. (The idea that judges could be counted on in their wisdom to apply a bad law such that Polanski would be sent up but nags given a pass is not relevant here, partly because there are untrustworthy judges just as there are bad laws, but primarily because our focus is to determine the moral grounds which could be used by a “wise” judge can make an exception in some unhappy situation. But if that is the case, why not just determine the moral grounds for good law and leave out the arbitrariness of the judiciary?) There is in fact abundant lack of reliable statistical evidence (pp. 24 ff.) that shows any psychological damage from childhood sex, even granting a highly prejudicial definition of psychological well-being. The anecdotal evidence compiled from interviews with children has been found to have been manipulated and in some cases invented (a genuine criminal act). Moreover, thanks to Melanie Griffith and the admirable Richard Dawkins (and indeed Samantha Geimer, Polanski’s own “victim”), we do have dependable anecdotal evidence that childhood sex has no effect whatsoever. Although Dawkins does deplore the fact of his own “victimization,” he quite simply states that the experience itself was “embarrassing but otherwise harmless (p. 316).” He obviously seems to have suffered no ill effects in later life, unless one perhaps plausibly maintains that an Oxford professorship is a sure sign of a mental trauma. Indeed some of those baby beauty contests strike me as a lot more creepy than a passing blow job. Most tellingly, the legal age for marriage in many states and countries before the child abuse fad hit should have resulted in a long history of psychotic brides. Which it didn’t.
So the elements of so-called child molestation – coercion, age and sex – are in themselves not criminal. Perhaps it is some lethal combination of the three that provides a basis for criminalization. Yet it is hard to see what combination would work. Coercion, except in cases where the coercion is directed against a potential criminal act, should stand alone as an immoral and possibly criminal act. If coercion is involved, it makes no difference what the victim was coerced to do. And, as we saw, coercion is not even a necessary element in sexual criminalization. Arguments for the supposed harmfulness of sex turn out to be arguments for instruction in practicing sex properly. Arguments for the harmful combination of sex and age turn out to imply to prohibition of any number of activities that children are now allowed to do or to restrict procreation to artificial insemination.
There is a lot more in the piece and it raises some interesting questions. We are already all mostly in agreement that some specific instances of “statutory rape” and not offensive and should not be criminalized; hence the so-called “Romeo and Juliet” laws. But on the other hand, most of us would identify a certain moral repugnance as we continue to increase the age gap between the participants: 16 and 18 is okay, but what of 20 and 15? 20 and 16? Why the dividing line at 16 or 17? And how is 20 and 15 that different from 36 and 15 or 16 for that matter?
I would certainly not recommend this line of philosophical thought as a “defense” to child sex allegations in Court. Taking such a tact is bound to lead to a sudden decrease in credibility and perhaps an involuntary “transfer” to the basement without a stapler.
But for a Saturday, which is today, this might serve as the perfect springboard for a mental excursion. This is what I hope to do. Let me know if you do and what you find. Thus far, I think I already have problems with his summary dismissal of “coercion” despite the assertion that consent is “irrelevant”.
Specifically, I am interested in these theories and any studies that may exist out there on the question of “moral harm” inflicted on victims, in the context of the ambiguous “risk of injury” statutes.
I suspect I may lose a few readers because of this post. That’s fine.
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