Tuesday, 10 February 2009

No sex please, we're Scottish

The news today that the Scottish government is considering making its law cracking down on consensual teenage sex even tougher is worrying on several levels.

Firstly, there is a very strong whiff of authoritarian moralising about the whole business. It seeks to bring girls aged 13-15 on to the same legal footing as teenage boys and open them up to prosecution should they indulge in consensual sex.

On one level, this is entirely fair. If boys are to be prosecuted for having under-age sex, then it does seem equitable that girls should be liable to the same penalties.

But can anyone tell me exactly what the purpose is of criminalising teenagers in this way? Teenagers have sex - always have, always will. Putting them through the criminal justice system for indulging in entirely consensual acts seems like madness to me. To brand a 14-year-old as a sex offender for shagging another 14-year-old seems somewhat daft.

Yes, there is an age of consent, so what those teens are doing is illegal. And yes, the earlier that people have sex the more likely they are to suffer from sexually transmitted diseases or teenage pregnancies.

But that doesn't mean that putting them through the criminal justice system is the appropriate way of dealing with the issue. Indeed, it seems like one of the worst ways of dealing with it. It is a health, education and moral issue - not a legal one. The more you make it a legal matter, the less likely you are to have teenagers coming forward asking for help - with obvious implications for STDs and teenage pregnancy.

And things get worse if you consider the idea that oral sex is to be included in the legislation. If oral sex, why not masturbation? Or any other activity which might in any way lead to teenagers having any kind of sexual thought whatsoever? This sounds to me like a legal minefield and the perfect recipe for a bad law. Defining the various practices which are to be considered illegal for teenagers seems nightmarish and there will also be significant difficulties in enforcing it.

This is legislation motivated more by moral unease about the thought of teenagers having sex than by a serious attempt to address an issue. This is something the Scottish government needs to rethink - unless it really wants to criminalise a whole generation of teenagers for doing nothing more than what comes naturally to them.


James Kelly said...

Bernard, I'm an SNP supporter and I tend to agree with you. The fact that the liberal Netherlands has such a low teenage pregnancy rate compared to ours speaks volumes. On one point I would agree with the government proposals - it's only right that laws of this type should apply equally to both girls and boys, because both are equally responsible for their own actions. But new-found equality before the law won't be much consolation if the law is a bad one in the first place.

Stephen B said...

Indeed a difficult area but I'm not sure that calling the proposals the result of either authoritarian moralising or moral unease (I’m assuming you are using these terms in a disapproving way) is really helpful as it implies a motive and reasoning that is either irrational or born of the desire to subjugate for the purposes of subjugation. I appreciate that having a moral code is nowadays shorthand for being preachy, but I think it would be wrong to dismiss a reaction as wrong on moral grounds simply as morals are often a distillation of learned societal behaviour and, as such, contain still-relevant accumulated knowledge.

Let me illustrate by use of a literary example. Samuel Richardson’s Pamela is probably seen today as hopelessly moralistic as the basic story is that the lowly servant girl really ought not give herself to the master of the house. resisting his advances is presented in terms of ‘virtue’ and other such old-fashioned concepts. In reality, this morality was saying, ‘don’t give yourself to him without some guarantee of suitable compensation (and in the 18th century we are talking marriage, not a promise of child support payments) or you will find yourself (almost literally) on the scrap heap with a child to support’ – a perfectly understandable reaction to the situation of the time.

Likewise, unease about children having sex can be seen in the same way as being concerned about a child driving a fast car – they don’t really know what they’re handling and the consequences can be messy and life-changing (in a bad way). I don’t think we particularly disagree on this point.

Nor do we disagree that making criminals of children serves much purpose (although I would hope that there is the possibility of real repercussions beyond finger-wagging in the more exceptional cases where intentionally cruel behaviour could be discerned) but I think it does illustrate how, when ‘traditional’ arbiters of morality lose their power (eg the Church), the modern state is only too happy to step in and fill that void.

Bernard Salmon said...

Stephen, I agree that this is a moral issue, but where I disagree is that I don't think the state has the right or the ability to impose its own narrow morality on everyone else, which is why I referred to authoritarian moralising. And I agree that teenagers may not be fully aware of the consequences of having sex early, but that's not something that can be addressed by legislation. As I said, this should be seen as a health, education and moral issue - not a legal one.

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