Helmut Graupner The Age of Sex International Interdisciplinary

Helmut Graupner The Age of Sex International Interdisciplinary Conference on Child and Adolescent Sexualities Monash University Prato Centre, Prato, Italy Organized in co-operation with Monash University, Australia & the Graduate Research and Education Programme in Gender, Culture and Identity (GREP), University College Dublin, Ireland 05. 2010 www. graupner. at

I. Sexuality & Human Rights II. European Court of Human Rights III. Sexual Consent in Europe IV. A Fair Balance V. Sexual Consent & Criminal Responsibility VI. Conclusion www. graupner. at

I. Sexuality & Human Rights • Human Rights → central idea: human dignity → human dignity = uniqueness and autonomy of the individual → German Constitutional Court: human being must never be a means to an end, but always the end in itself (Kant) → Jewish saying: if you are destroying a single person you are destroying a whole world, if you are saving a single person you are saving a whole world → exactly what human rights are about: uniqueness, autonomy & self-determination of the individual www. graupner. at

Human Sexual Rights → fundamental rights in the area of sexuality → should protect human dignity → manifestation of a basic principle of sexual autonomy and sexual self-determination → Correctly understood: two sides → right to wanted sexuality → right to be free and protected from unwanted sexuality (sexual abuse, sexual violence) → both sides of the coin must be given due weight, neither neglected → only then: human sexual dignity fully respected → overemphasis of one side to the detriment of the other: violation of human rights

• Task of Lawmakers → find a reasonable balance → between both sides of the coin „sexual autonomy“ → noble task & overhelmingly important → i. e. in respect of young people → to whom we should pass on our ideals & values → respect for dignity & individual autonomy

II. European Court of Human Rights: • Very essence of the convention is respect for human dignity and freedom • Notion of personal autonomy is an important principle underlying the interpretation of the right to respect for private life • Sexuality and sexual life are at the core of the fundamental right to protection of private life. State intervention interferes with this right; and such interferences are justified only if demonstrably necessary to avert damage from others (pressing social need, proportionality) • Attitudes and moral convictions of a majority cannot justify interferences into the right to private life (or into other human rights) (Dudgeon vs. UK 1981, Norris vs. Ireland 1988, Modinos vs. Cyprus 1993, Laskey, Brown & Jaggard vs. UK 1997, Lustig-Prean & Beckett vs. UK 1999; Smith & Grady vs. UK 1999; A. D. T. vs. UK 2000, Christine Goodwin vs. UK 2002, I. vs. UK 2002, Fretté vs. France 2002, L. & V. v. Austria 2003, S. L. v. Austria 2003) www. graupner. at

• Discrimination on the basis of sexual orientation – is unacceptable – is as serious as discrimination on the ground of race, ethnic origin, religion and sex – differentiation requires particularly serious reasons (Lustig-Prean & Beckett vs. UK 1999; Smith & Grady vs. UK 1999; Salgueiro da Silva Mouta vs. Portugal 1999; L. & V. v. Austria 2003, S. L. v. Austria 2003, E. B. vs. France 2008) www. graupner. at

• not just negative rights to freedom from state intervention but also • positive rights to (active) protection of these rights in relation to the state as well as in relation to other individuals • obligation of the state to act in case of interference with the right to personal development and the right to establish and maintain relations with other human beings (Zehnalová & Zehnal vs. CZ 2002) www. graupner. at

Member States obligated → to effective protection against sexual violence and abuse → to employ the criminal law (strongest weapon of the state), if necessary for effective deterrence → to guarantee that state agencies intervene whenever necessary for the protection of vulnerable persons (Z. & Others vs. UK 2001, E. & Others vs. UK 2002, M. G. vs. UK 2002; X. & Y. vs. NL 1985) as well as → to effectively secure the freedom to wanted sexuality (L. & V. vs. Austria 2003, S. L. vs. Austria 2003; A. D. T. vs. UK 2000) → not restricted to adults S. L. vs. A: EUR 5. 000, -- compensation (plus costs and expenses) to an adolescent, who (between 14 and 18) was barred from entering into self-determined sexual relations with adult men (par. 49, 52) www. graupner. at

III. Sexual Consent in Europe → Striving for the best balance → European states: → minimum age limit („age of consent“) for sexual relations → between 12 and 16 years (only exception: Northern Ireland; MBA critique) → most jurisdictions: 14 or 15 www. graupner. at

Consensual Sexual Contact (out of a relationship of authority) legal at the age of 14: 48% (28 out of 59) 15: 70% (41 out of 59) 16: 98% (58 out of 59) Europe

→ States with 16: more flexible system with ample opportunities for screening out (love relationships & other non-harmful consensual contacts) → States with 12 -14: more stringent law enforcement policy (limited powers of discretion for law enforcement agencies, little attention to the will of the victim) www. graupner. at

IV. A Fair Balance → European Convention of Human Rights: interferences with private life (incl. sexual life) only, if necessary in a democratic society → European consensus: strong indicator for necessity → certain amount of discretion → margin generally between 12 and 16 years www. graupner. at

→ no age limit or under 12: human-rights violation (lack of protection against abuse and unwanted sex) → minimum age 16: seems only compatible with human rights if effective screening is guaranteed → German Constitutional Court: the right to self-determined sexual decisions of young people corresponds to the extent that their selfdetermination supersedes their need for education (BVerf. GE 47, 46 (74) = NJW 1978, 807) → UN Convention on the Rights of the Child“(Art. 12): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

→ age limit higher than 16: seems excessive, as not necessary in a democratic society (see European consensus) → to be clear: this refers only to general minimum age limits (total prohibition) not to contacts in relationships of authority, and not to pornography and prostitution

V. Sexual Consent & Criminal Liability → essential requirement of justice: sound and consistent laws (ECt. HR: X. & Y. vs. NL 1985; B. & L. vs. UK 2005) → applied to minimum age for sex → should be the same as the age of criminal responsibility www. graupner. at

→ if you punish an adolescent boy for raping a woman, you cannot on the other hand claim that he is too immature to consent to wanted sex with the same woman → if you consider an adolescent boy incapable of making mature and informed sexual decisions, and you consider a woman to abuse him if she engages in consensual sex with him, you cannot hold that same adolescent boy liable for raping the woman if she does not consent to sex with him www. graupner. at

→ age for criminal responsibility 14 & minimum age limit for sexual contacts (“age of consent”) 15 (or even higher): consensual sex between two 14 -year-olds -> both sex offenders, both victims both perpetrators & victims vis a vis each other (!) at the same time. → no fair balance (unreasonable, absurd, and unjust) serious violation of human rights a rejection of the principles of individual autonomy and self-determination → vast majority of European jurisdictions: age of consent for sexual relations no higher than the age of criminal responsibility, and most set the same age for both www. graupner. at

V. Conclusion → efforts for a fair balance must always keep in mind dignity, uniqueness & autonomy of the individual → moral convictions alone no reason for restricting the sex lives of others no legitimate ground for state intervention no matter how great the majority → obligation to protect people 1. from being degraded into objects of abuse and violence, 2. from being degraded into objects of the moral convictions of others → achieving both objectives important contribution to the pursuit of happiness in our sexual lives for all of us – children, adolescents, and adults www. graupner. at

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