Up Front by Emma Hart


It's Complicated

One of the ways I can tell I'm getting old is that sometimes, when my Social Media Posse are raising hell on an issue, I find myself thinking, "Man, it's way more complicated than that." The case of Kaitlyn Hunt is one of those times. 

You might think I'd be utterly unambivalent about this. Here's an eighteen year old girl facing a felony prosecution for 'lewd and lascivious battery' for having sex with her fourteen year old girlfriend. Isn't this clearly homophobia? 

No. Kaitlyn's girlfriend's parents might have pushed the prosecution because they're homophobic, or they might have done exactly the same thing if their kid had been sleeping with an eighteen year old boy. We don't know. The prosecution would still have been taken if the older teenager had been male. We know this, because it happens. There have been many cases in the States of boys facing felony prosecution, and the rest of their lives on Sex Offender Registers, for having consensual sex with their younger girlfriends. Homophobia is probably a factor, but it's way more complicated than that. 

There are also clearly people who find this relationship less problematic because it's not heterosexual, not more. Some people have a much easier time thinking of a theoretical eighteen year old boy as a manipulative abusive predator than they do a girl. That's problematic too, because it's based on a sexist assumption that the male is always the one pushing for sex. 

Here's the question that should be really hard to answer: is it wrong for an eighteen year old to have sex with a fourteen year old? Mulling this question led me to an even curlier one: should there be an age of consent? 

Our age of consent is about right, yeah? Sixteen; seems about right. Not fifteen, that's too young – unless you're Swedish. And fourteen is definitely too young. Germany and Italy have that dead wrong. Thirteen is ridiculous. That's only for creepy third-world countries, like Spain. 

There are countries, and states in the States, where it's only legal to have sex with someone under eighteen if you're married to them. A fifteen or sixteen year old can't possibly consent to something as significant and life-altering as casual sex, but marriage? No problem. In the Cook Islands and Samoa there is no age of consent for boys. In Canada – Canada! – the age of consent is orifice-dependent. 

Any age of consent is deeply problematic. It's a bright line. It says that today someone cannot possibly consent to sex, but tomorrow they can. It creates a situation where two people can have sex they both want, and both be guilty of a crime. 

One of the ways some jurisdictions have tried to deal with the injustice this can cause is the "Romeo and Juliet" exception that might have saved Kaitlyn Hunt had she been a little younger. This offers mitigation, or negates the offence, if the couple are 'close in age'. How close is close enough varies. 

What Romeo and Juliet laws try to convey is that a relationship is okay if the couple are peers. When I was fourteen, my boyfriend was seventeen. Nobody who knew us thought that was a problem. We were clearly peers. Equals. The fact that our age difference crossed the age of consent did not create an unhealthy power dynamic. 

So Romeo and Juliet laws are clearly a good idea, right? I mean, as long as you don't do it like Kansas. There's still a bright line, though. To quote from Connecticut's law: 

A 15-year-old born on 1 January can consent to a 18-year-old born on 1 February. This is just under a 3-year age difference. A 15-year-old born on 1 February cannot consent to an 18-year-old born on 1 January.

Can age of consent law be done well at all, when age is the only signifier of maturity and power dynamic we can use? What's its purpose? A hundred and fifty years ago or so, the age of consent was about three years below the average age of menarche. Now, it's about three years above that. Is it about protecting children from paedophiles, or teenagers from mistakes? Can we have an informed debate about it in a society that's still scared of teenage girls having protected consensual sex in ongoing relationships? 

Kaitlyn Hunt's girlfriend's parents say they had no choice but to involve the police. They'd asked their daughter not to see her. They'd told Kaitlyn to stay away from their daughter. Anyone who's had, met or been a teenager will be gob-smacked to hear that didn't work. They had no choice. What I can't fathom is what they thought they were protecting their daughter from that would be worse than what they're putting her through.

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