The following article is the 2nd winning entry for IIM Indore’s fest Retorica 2015, written by Sayan Sanyal from National Law School of India University.
It was the spring of 1993 when some of teenage boys who called themselves the “Spur Posse” combined adolescent competitiveness and sexual bravado to develop a “game” in which members of the group sought to have sex with as many females as possible. Members scored one point for each sexual “conquest”.
The gang first made the headlines when eight of its members were arrested on charges ranging from lewd conduct with a minor under the age of 14 to rape by intimidation.
The significance of this case was not the fact that the gang members wanted to have sex with more than one partner, nor even that they actually had so many partners. Rather, it was that after weeks of investigation, the Los Angeles County District Attorney’s Office dropped nearly all charges on the grounds that its “policy [is] not to file criminal charges where there is consensual sex between teenagers.”
Although the criminal justice system labeled the sex “consensual,” there was no evidence that the girls considered their experiences pleasant or recreational. Quite the contrary image seems to emerge from the media accounts, which describe rather violent encounters, rife with ambivalence and coercion, and seemingly void of mutual affection.
The central point is that establishing consent in sexual relations involving minors is truly difficult, especially in relations involving an older and emotionally more intelligent partner and a relatively younger partner, who is incapable of giving consent. To give consent, some basic minimum cognitive development regarding sexual interaction must have already occurred, which, in this case, will be very difficult to establish. Also, legalization of consensual minor sex will only ensure that more Spur Posse’s come up, and the next time, there won’t even be any arrests as legalization protects these fraternities.
At its core, this debate is about the validity of an individual’s consent to sex, and the conditions under which that consent will insulate someone who engages in sex with that individual from later criminal liability for that act of rape.
A multiplicity of factors induce minors to consent to sex; to feel liked or loved, to feel closer to someone, and/or to become popular. Desire often is not the motivating force in minors involving themselves in sexual exploration. That is, researchers consistently have found that for teenagers, adolescence is a time of acute crisis, in which self-esteem, body image, academic confidence, and the willingness to speak out decline precipitously. It is an established fact that a sexual relationship requires a marked emotional maturity and understanding that such a relationship is far more nuanced than the act per se.
The issue at hand is not about chastity being perceived as “purity” or protecting minors from the inherent “vice” of promiscuity. It is about finer issues, like agency of consent of minors, pre-empting unsafe sexual interaction of unaware 12 and 13 year old children (who are in no position to fully comprehend the use of contraceptives, or the potential fallout of not using one), with older teenagers, who are primarily driven not by desire or lust, but by peer pressure and/or societal expectations. In such a scenario, informed consent is almost always likely to be missing. Also, sex is often presented “as a goal in and of itself, with little discussion of its risks or of responsible contraceptive behavior…… Adolescents remain subject to a double standard that makes spontaneous intercourse seem acceptable but suggests that adequate preparation is evidence of promiscuity.” Further, the option of sexual abstinence is not necessarily viable. Girls and boys who resist sex are often stigmatized and called names by their peers.
Teens express longing for emotional attachment, romance, and respect. At the same time, they suffer enormous insecurity and diminished self-image. These two factors are clearly interrelated: the worse they feel about themselves, the more they look to the other gender for ratification of the person that they are becoming. The importance of being attractive to males takes on a central role in many girls’ lives. The same goes for teenage boys.
Teens want boyfriends or girlfriends, relationships, or more generally, somebody who will hold them and tell them that they are wanted. They negotiate access to the fulfillment of these emotional needs by way of sex. A girl who wants males to find her attractive, who wants acceptance and popularity, might reasonably consent to sex with a popular boy. Males recognize, and occasionally exploit, girls’ insecurity. The same goes if we reverse the roles of the genders.
Evidence that teens consent to sex for foolish and mistaken reasons (e.g., that sex will earn them approval and acceptance) should lead to the conclusion that minors lack the capacity for meaningful consent, which is a non-sequitur for any sexual relationship.
The focus should be on improving sex education levels worldwide. We are still living in a world that puts sex education on the back-burner, that too, adopting a distinct “biological” approach toward the act of sex, when explaining it to teenagers. To effectively combat teenage pregnancies, laws need to implemented, but more importantly, there should be a great deal of stress on the emotional requirements for a sexual relationship, and also, the emotional toll of an unwanted teenage pregnancy. In the absence of conclusive research and data on teenagers becoming biologically more equipped for bearing children at younger ages, it should be safe to say that sex between minors should remain outlawed for the foreseeable future.