Sex and Children

December 11, 2010, last update



This may be the chapter people turn to first because of the title, but the only thing to say about sex is that there is nothing to say. The role of government is to enforce rights, to stop people from stepping on each other. Nothing about consensual sex is the business of government.

On the other hand, marriage has to do with sex, or is supposed to, and the powers-that-be have always had much to say about it. That relates partly to the joy of messing about in other people’s business, but partly it also has to do with something real. Families are the irreducible unit in the social mix, and all societies recognize that by giving them legal rights. Hence the role of government in what could be construed as a private matter. The few societies that have tried to ignore those bonds, such as the early Communists, have failed. Families aren’t called “nuclear” for nothing.

In fairness, though, the recognition of the strength of the bond between people who love each other has to apply to everyone equally. It shouldn’t be limited to biological or sexual relationships. The germ of that idea lies behind the right to adopt, but there’s no reason why voluntary lifelong commitment should be limited to the parent-child relationship. (Well, it’s voluntary for the parent(s). Children’s rights are discussed later.) Any pair or group of people who have a lifelong commitment to support each other should have the legal rights of families. And the same legal obligations if they decide to part ways.

Last, there is the nasty topic of sex crimes. Let’s be clear from the start: these are not an unfortunate form of sex. They are crimes that use sex. Like any other crime, they are completely the business of government. I’d maintain that since they affect people at a point of maximum vulnerability and can poison much of life’s joy, they should be dealt with much more severely than nonsexual crimes. Other crimes that attack vulnerable people are penalized more severely, or at least are supposed to be, such as profiteering in time of disaster or violence against toddlers.

The hallmark of a sex crime is the lack of consent, which of course implies that if consent can’t be given, a crime has been perpetrated regardless of any other factor. So, for mentally competent adults to have sex with the mentally incompetent or with children is, ipso facto, criminal. Sex among young but sexually mature adolescents is a much grayer area. If no abuse of any kind of power is involved, then it’s hard to see how it could be called criminal, although each case would need to be considered on its own merits. As with gray areas in other aspects of life, the fact that they exist does not change the clarity of the obvious cases. It’s simply another situation where the rules are the same — in this case that sex must be consensual — which means that the remedies may vary.

Another favorite bugbear of the restrictive sexuality proponents is that any freedom will lead to no limits at all. What, they worry, will stop people from marrying dogs? The answer is so blazingly obvious, the question wouldn’t even occur to a normal human being, but since there seem to be some very odd people around, I’ll be explicit. An animal can’t consent, so bestiality comes under the category of cruelty to animals.



The current concept of parenting goes right back to the one provided by Nature: it’s something for everyone to do to the maximum extent compatible with survival. This works well in Nature’s merciless biological context. It produces lots of extra offspring, who are selected against if they’re less adaptable than their peers, and over time the species gets better and better. To put it in plain English, the system works if enough children die young.

As human beings, we’re having none of that, and we’ve been quite successful at the not-dying-young part. But we’re still determined to follow Nature’s program as far as maximum parenting goes. This has not been working out well for us. We’re an ecological disaster, all by ourselves.

It’s important to fully absorb the fact that Nature always wins. There is no way to continue overpopulating the planet and to also get off scotfree. It isn’t going to happen. We may be able to put many more people on the planet than we once thought possible, but space on the earth is finite and reproduction is not. There is no way, no way at all, to avoid Nature’s death control if we humans don’t practice birth control first. One way or the other, our numbers will get controlled. We don’t get to choose to reproduce without limits. We only get to choose whether the limits are easy or lethal.

The limits themselves are a matter of biological fact within the bounds set by what one sees as an acceptable lifestyle. The earth can hold more people who have one mat and one meal a day than people who want two cars and a summer house. That’s why estimates of the Earth’s carrying capacity for human beings can vary all the way from 40 billion down to two billion.

However, it’s academic at this point what a desirable carrying capacity might be because under any comfortable lifestyle scenario we’re already either above that level or very close to it. (AAAS, 2000) It’s becoming more critical by the day to at least stabilize population, and preferably to reduce it to a less borderline level. On the other hand, without totalitarian controls and a good deal of human suffering, it seems impractical to try to limit people to fewer than two children per couple. So the answer to our current reproductive limits is rather clear, even without extensive studies.

The good news is that two children per couple is actually slightly below replacement levels because not everyone reproduces, and of those who do, some have only one child. That limit would allow for a very gradual reduction of our over-population until some previously agreed, sustainable level was achieved. At that point, an egalitarian system — a raffle of sorts, perhaps — could be applied to fairly distribute the occasional third child permit.

In the real world, it’s not always couples who raise children, although I’ve been discussing it that way because it takes a pair to produce them. (Yes, I’m aware that with new genetic engineering methods it can get more complicated than that. However, it’s still about people producing children, and the number of children per person doesn’t change based on the means of production. Only the method of doing the math changes.) The right to have children should, obviously, apply to everyone equally, but there’s the usual stumbling block that although the number of children women have is not subject to doubt, the number of children men have can be much harder to guess. A fair method requires some way to determine who is the male parent, and in this technological age that’s easy. All that remains is to apply the methods we already have.

And, no, that would not be a DNA test one could refuse. The socially essential function of fairly distributing the right to have children takes precedence over the right to refuse to pass a toothpick over the inner cheek cells to provide a sample. It’s a parallel case to the requirement for vaccinations in the face of an epidemic.

I know that I’ve used the dreaded word “permit.” It leads to the difficult question: How are these desirable limits to be achieved?

There are a number of non-punitive measures that limit the number of children in families to smallish numbers, and all those measures would already operate in a fair society. First, people must have enough security in old age that they don’t need a small army of offspring as their own personal social security program. Second, women must have their rights to self-determination, education, and other occupations besides motherhood. Judging by the experience of countries where women have acquired some rights and where there is retirement security, those two things by themselves bring the rate of reproduction close to replacement level. Maybe with the addition of strong cultural support for families with no more than one or two children, other measures might only rarely need to be applied. Advertising, mass media, and social networks would all have to send the same message, in a similar way as they do now, for instance, about the undesirability of smokers.

However, limits laid down in law would still be necessary if for no other reason than to stress their importance and to provide recourse against the occasional social irresponsibles who we will always have with us. The punishments for exceeding those limits would have to be rather different than for other anti-environmental excesses. After all, nobody on earth would want to, how should I say this?, “remove” the children. Incarcerating the parents also wouldn’t be helpful. It would create problems and solve none.

What’s really at stake is a special case of environmental mitigation. Just as an industrialist would be required to pay for cleanup, likewise parents would be required to pay the excess costs brought on by the overpopulation they’re facilitating. But that doesn’t really help to put a price on it. The immediate actual cost of just one extra child in a whole country is nothing. If the actual cost of everyone having extra children were visited on just one pair of parents, the richest people on the planet would be ruined.

So actual costs unfortunately don’t provide actionable information. One would have to fall back to the merely practical and set the level high enough to be a deterrent, but not so high as to be ruinous. Just as with incarceration, ruining the parents creates more problems than it solves. A deterrent is necessarily a proportion of income and assets, not an absolute amount, and the higher the level of discretionary funds available, the higher that proportion needs to be. For the poorest, one percent of income might be enough of a motivation, whereas for the richest the level might have to be fifty percent. Time and experience would tell. Furthermore, like unpaid taxes, this overpopulation mitigation cost could not be avoided by bankruptcy, and if it were not paid, it could be taken straight from the individual’s pay or assets. And the amount would be owed for the rest of one’s life. There’s nothing naturally self-limiting about the effects of overpopulation, and neither should there be for the deterrent implemented to prevent it.

There’s one technical aspect to replacement levels that has a big effect but that people sometimes ignore. Aside from absolute number of children, the age at which those children themselves reproduce changes population numbers. Just to make that clear, let me give an example. Consider a sixty year span of time. If a couple produces two children at thirty, and those children each have a child apiece when they are thirty, then the total number of people after sixty years, including all three generations, is six. If, instead, everybody reproduces at fifteen, there are five generations after sixty years and the total number is ten. Everybody has only one child each, but age at reproduction has a big effect on total numbers. The longer lifespan becomes, the more critical this effect is. If lifespan increases very gradually, that might not matter, but should there suddenly be a medical advance that has us all living to 400, it would again become important to adjust reproductive rates downward or suffer the consequences of reduced quality of life. I wouldn’t be hugely surprised — maybe just a bit surprised — to see noticeably lengthened life spans, say to 120 or so, as a consequence of stem cell therapies, so even in the near future this discussion is not completely theoretical.

Producing children has always been socially as well as personally important. But fairness requires changes to its significance. Who has sex with whom has zero public significance, and the sooner that’s universally recognized, the sooner we can stop generating massive suffering by unfairly, unethically, and immorally interfering in each others’ lives. On the other hand, parenting has huge environmental consequences which are ignored at this point. We’re used to that privilege, but that doesn’t make it right.



[This section benefited a great deal from comments by Caroljean Rodesch, MSW and child therapist. Errors and bizarre ideas are, of course, mine.]

The first thing that has to be said about children is that they have rights. They have none now, at least not in law. Where children are involved, the discussion is about how much damage parents can do before their rights are revoked in favor of the state. It’s the same level of ignorance men once had (and in some places still have) about women, when they argued about how much husbands could beat their wives.

Any mention of actual children’s rights is written off as impractical, just as every other expansion of rights to former chattel has been, and with about as much actual merit. I’ll discuss below (and in the chapter on Care) some examples of how children’s rights could be implemented.

Another class of objections is variations on the theme that any rights will result in a dictatorship of rude, free range children. That’s nothing but a false dichotomy between absolute parental rights and absolute children’s rights. Those are not our only choices. Children’s rights are yet one more case, perhaps the most difficult case of all, where many different rights have to be balanced. An issue that depends on balance cannot be solved by saying balance is too difficult. With echoes of other similar excuses, it’s amazing how consistently the corollary is that all power has to stay in statu quo.

All that said, there are major differences between children’s rights and those of any other class of people because of children’s lack of experience. Rights for children does not imply that they should suddenly dictate how schools or families are run. Their usual ideas on those topics would prove neither sustainable nor effective. Under normal circumstances, parents need to be the final authorities on what children do for the sake of the children themselves. That is the criterion: the good of the children. The parents’ needs or wants are secondary. Under normal circumstances, parents are famous for applying that principle, sometimes at the cost of their own lives. But that’s as it should be. It’s when things are not as they should be that the problems arise, and it’s those situations that children’s rights must help rectify.

There are other differences based on the lack of experience. It’s plain that children would not do well as voters, soldiers, drug takers, or drivers. It’s plain that they have much to learn and need teachers. However, the fact of their different needs is a reason to satisfy those needs, not to deprive them of all rights. Parents don’t own their children.

Parental rights, as distinct from children’s rights, have next to no limits at this point. We’re only one step away from those ancient Roman fathers who were at least consistent and claimed the right to kill any of their household chattel, including children. The lack of boundaries to parental rights leads to the usual damaging consequences. Children are astonishingly resilient, so the human race hasn’t died out (yet), but a minority become dysfunctionally damaged and grow up to impose an incalculable social price. Every adult needs more limits than we have now with respect to children, not less. Limits are never a welcome message, not for polluters, and not for you and me. But it’s true nonetheless. In a fair world, children have rights.

The primary and most important right is the fundamental one to be safe from harm. The exercise of all other rights depends on that one in adults, and the same is true of children. Therefore, when parental rights are balanced against physical harm, the child’s rights take precedence.

That has consequences for how abuse cases are handled. The well-being of the child is a higher priority than preventing family break-up. The current assumption is that it’s always best for the child to stay with their family, even when they’ve been harmed by it. It takes huge damage to the child, such as imminent danger of death or permanent disability, before the legal system moves to revoke parental rights. (Disrespected minority parents may lose their rights more easily, but that’s a symptom of discrimination against minorities, not of respect for the rights of the child.) The adult right to freedom from harm would be meaningless if it wasn’t enforced until death was imminent. That’s not an acceptable standard for adults, and it is not acceptable for children.

Parenthetically, I want to comment up front on the cost issue. I get the sense that the primacy currently given to parental rights is at least partly due to a rather broad-based horror at otherwise having to care for strange kids. It’s true and it’s unavoidable that the right to escape an abusive situation is going to be more expensive for society than ignoring the problem. But the fact that it’s cheaper is not an adequate reason for allowing some people to suffer at the hands of others. It’s not adequate when everyone is the same age, and it’s not adequate among different ages. Furthermore, just as a practical footnote, I’m not at all sure that the overall cost of enabling children to escape abuse really would be more expensive. Abused children go on to become some of the most expensive adults in society, and this may be yet one more instance where prevention turns out to be cheaper than cure.

Given that children have the right to be free of abuse, it’s important to define what abuse is. The definition is a prickly issue because socialization sometimes requires physical measures. However, the issue of occasional physical restraint is not unique to children. Adults sometimes have to be physically restrained as well. We have models for what is appropriate corrective action, and it does not involve beating people up. Also, in a child’s case, the motivation has to be teaching, not simply a removal from society of an offending element. In other words, the good of the child is the priority, and not the convenience of adults. So there are two criteria. One is that physical corrective measures should be of the same general type for children as for adults. Two is that for children the teaching or rehabilitative component is of primary importance. Using those two criteria, it’s possible to delimit physical restraint as opposed to abuse, and to distinguish a wholesome upbringing that creates options as opposed to one that shuts them down.

Medical treatments are one area where the rights of children have to differ from those of adults. Given children’s lack of experience, that probably goes without saying. Again, the criterion is the benefit to the child and keeping their future options more open, not less. Making sure a child gets necessary medical treatment for health is an essential parental function. That doesn’t mean all medical treatments are at the discretion of adults. When benefit to the child is the criterion, then, just as one example, it is arguably child abuse to subject him or her to body-altering treatments for the sake of a beauty pageant.

There are many gaps in the current systems of child abuse prevention. Each new case of abuse underscores that. Some of it is not due to faulty rules, but to understaffing due to meager resources. In all the cases I’ve heard about, that’s due to the low priority of children and not to the literal lack of money in a country. Protecting children is not wildly expensive, but governments would rather spend money on other things. Those priorities reflect power, not justice, and wouldn’t be legal in a fair society. Enforcement of rights is not optional, for children no less than for others, so an adequate system of protection for them must be funded through taxes just as the other essential functions of government are.

Deficient resources are not the only problem, unfortunately. The legal system is geared to adults, who can deal with small problems on their own and need help only in exceptional cases. That model does not work for children at all, and never could work no matter how well funded the system was. The younger and therefore the more vulnerable the child, the less likely they are to know they’re being abused or that there’s anything they could do about it.

There are two points that need realignment. The first is that for children, the most meaningful and practical means of exercising the basic right to live free of abuse would be the right to leave it. They should be able to get a divorce, as it were, from a bad situation. The second is that the adults in the community need a great deal more encouragement to interfere when they see a bad situation developing. Both of those require good judgment on the part of many different people, which make them both very hard to implement.

I see the child’s right to leave as critical to the prevention of abuse. And prevention, after all, is the essential point. Punishment after the fact doesn’t undo any of the damage. But the right to leave is complicated not only by children’s own lack of perspective, but also by the existence of stupid, selfish, or even criminal adults. Parents shouldn’t have to contend with abuse allegations because they made their kids eat peas for dinner. A vengeful ex-partner shouldn’t be able to waste everyone’s time by bribing Junior away from the custody parent with promises of never having to do homework. Worst of all would be if children’s rights didn’t help children but hurt them by giving the world’s vilest criminals more opportunity.

Given those issues, children’s right to leave has to involve responsible adults. I can’t see any other way to implement the right without inviting more trouble than it solves. That doesn’t mean there necessarily is none. The more control over that decision that can be put in the hands of the child concerned, and that is consistent with beneficial outcomes, the better. Any adult who comes in contact with the child is in that position, and should fill it. (More on the duty of reporting in a moment.) But in order for children to have consistently effective advocates there also need to be people whose job is nothing else.

In the chapter on Care, I discuss the role of child advocates at greater length. The point I want to stress here is that professionals who advocate for children are an essential component of enforceable children’s rights. Another essential component is the existence of places where the child can actually go. I’ve called these facilities “children’s villages” (after the orphanages set up by the Tibetans in exile), and they’re also discussed in Care. Additionally, the process of adoption needs to be facilitated so that it happens quickly enough to be relevant.

As with divorce between adults, separation of children from their families involves a host of financial and practical issues that have to be resolved individually. I see that as an important function of child advocates. The general principles to go by are that the child has rights, so their preferences — not just needs, preferences — are an important and valid factor. And that the biological parents, by creating the situation in question, are responsible for it and will be assessed child support to be paid to the new caregivers. (Again, more in the Care chapter.)

That brings me to the second point: reporting abuse or neglect. The older the child, the likelier that a separation initiated by them would be feasible. The younger, the more important it is for other adults to be willing to interfere in bad situations. That issue, like all the others in this field, is a delicate balancing act. Creating a situation in which neighbors spy on each other and everyone lives in fear would be atrocious, but letting children suffer because adults would rather be inoffensive is appalling.

Two lines of approach should mitigate that dilemma. One is that all adults who come in contact with children professionally: day care center workers, teachers, pediatricians, nurses, journalists, clergy, and so on, would be trained to recognize signs of maltreatment as a condition of their license and would be obligated to report it to a child advocate. The advocate would be legally obliged to look into the situation within days, not months. This is enforcement of a basic right. It’s not optional.

Mandated reporting is a feature of child abuse prevention laws in some places now, but it suffers from insufficient compensation for the asymmetry of power between children and adults. Professionals fear repercussions from parents, their employers, or just from mere general unpleasantness, and the reporting too often doesn’t happen as it should. Even full confidentiality doesn’t always help matters.

So, as with power asymmetries generally, the solution is to strengthen the feedback loop. Retention of the license to practice one’s profession needs to depend on fulfilling the duty to report just as much as it does on adequately performing the other duties. Further, the child needs to have the right to take any professional who should have reported, but didn’t, to court for dereliction of duty. The need to do that may only be evident in hindsight, so the person involved could bring that suit as an adult.

If those measures were still not sufficient to enforce mandated reporting, additional ways of making it easier to fulfill that duty have to be implemented. The result has to be that all professionals in a community put children ahead of their own desire for a quiet life.

The same should be true of all adults in the community. Relatives and neighbors are generally the first to know when there’s a problem. But they’re not necessarily trained, and they’re not necessarily even trying to be objective. Therefore, for the general population, unlike for professionals, reporting can’t be mandated without creating more problems than it solves. There should be “encouraged” reporting instead. The signs of abuse or neglect need to be part of the curriculum in school, and public health messages need to encourage people to report when they’re sure there’s a problem.

That would create an atmosphere where children know they can ask any adult for help. That, and the specific professionals whom they should approach, ought to be a clear and present part of the curriculum from the earliest days of day care up through grade school.

Funding will obviously be necessary when there have to be adequate numbers of workers specialized in advocating for children. That is not a sufficient reason to give up on children’s rights. Nobody complains that police are a luxury and that we should just learn to deal with crime on our own because it’s cheaper. I’ve said it before and I’ll say it again: the same is true of children. Their inalienable rights must be enforced, and the expense of doing so is simply part of being a fair society. Besides, the fewer abusive adults there are, the smaller the child advocacy offices can be. People who want to reduce the money spent on abused children need to figure out how to reduce the number of adults causing the problem, not how to ignore the children suffering it.

In addition to freedom from harm, children have other basic rights, too. They have a right to a living and the right to basic freedoms as they grow into the ability to use them. These, too, need adaptations if they’re to be useful to children.

The right to a living, in particular, has different and more facets than it does for adults. In the case of children, it means a right to support rather than the right to earn a living. The right to support also includes the mental and emotional support necessary for the child’s development. And it means acquiring the tools to earn a living eventually, in other words, a right to education.

That, of course, has been more or less standard practice since before the dawn of humankind. The difference, though, is that having an explicit right means there can be no “less” about it. A defined level of care and education has to be provided, and if it’s lacking the child has the right to get it elsewhere and the state has the obligation to make that financially possible by exacting support from the parents and supplying any shortfall. That is not standard practice, but it should be.

Given that a child’s main task is acquiring the ability and tools to be a competent adult, which is a full time occupation, the corollary is that children have the right not to work. Therefore, if their parents cannot support them, it becomes the responsibility of society at large, i. e. of the state, to do so. That’s also always been generally understood. In the past, extended families more or less fulfilled the function of distributing care of children among many people, but extended families are rarely extended enough these days. I discuss possible methods of state assistance in the Care chapter. Whichever solutions a society uses, the point remains the same. Children have a right to have their physical needs met in an emotionally kindly environment that gives them enough knowledge to earn a living when the time comes.

Children do, also, have the same rights as others to the extent they can use them. So the right not to work is not the same as a prohibition against working. If children are citizens with rights, within the limits of their lack of experience, it makes no sense to deny them the choice to work if they want it. I realize that at the current levels of accepted exploitativeness — accepted, not even egregious exploitativeness — any suggestion that children could work if they wanted to is likely to be met with scorn. However, as a matter of simple fairness, if children were reliably free agents in the decision, there’s nothing bad about children working, in and of itself. Such work has two limiting characteristics: it is not physically taxing and allows enough time for the child to stay healthy, to learn, and to play. There’s a difference between occasional babysitting or gardening for the neighbors, and stunting growth by working twelve hours a day in a factory. Or (now that I live near Los Angeles and have heard of the situation) having proud parents push children into being full time actors at the expense of the rest of their lives.

The right to education gives children the skills needed to live on their own and to become the well-informed voters on whom the whole system depends. The only universally and equally accessible way to fulfill that right is with free public education. It should enable the graduate to enter work that pays a modal income. That was once the idea behind free schooling in the US. At the time, a high school diploma was enough to get good work. In Europe that principle carried forward into modern times when university education became freely available. (At least until the Eurozone started following the US example and trying to water that down.) In the US, sadly, the original idea has been almost lost, but it was a good one. It is a hallmark of a fair society that it gives all its citizens equal tools when starting the business of life.

Children also have rights to the freedoms of speech, thought, and religion as they grow to feel the need for them. They’re all rather meaningless to a toddler, but they acquire meaning gradually, without any strict on-off switch to make things easy. It makes sense to have target dates for the application of various rights, adjusted for individual children if they exercise a right earlier than most. The validity of doing so should be decided on a case by case basis. For instance, there have been several high school free speech cases recently which have involved political speech issues, such as criticism of school policy. (One example from the Student Press Law Center site, where there are dozens of others.) Sometimes the “free speech” of high schoolers is regrettable rather than an expression of ideas, but that wasn’t the situation in these cases. These were about the schools shutting down dissent, and using the children’s status as non-persons to get away with it. The cases were decided in favor of the powers-that-be simply, as far as I can tell, because to decide otherwise would be to admit that minors have rights. That’s the kind of thing explicit children’s rights should prevent.

The whole issue of applying children’s rights is a moving target because the children themselves are growing. That means their rights and responsibilities should be proportional. It’s silly to insist a person is old enough to support her- or himself, old enough to enlist in the military and kill people, but not old enough to vote or to decide which drugs to take. It also means the acquisition of rights and responsibilities should be gradual. For instance, the right to vote could start with municipal elections. (In the US situation, that includes school boards, which could turn into a true exercise in democracy.) A couple of years later, county, province or state elections would be included, and finally national and then, when the world has reached that stage, international ones. The right to support shouldn’t go from 100% to 0% at the stroke of midnight on a given birthday. It could decrease by 20% a year between 16 and 21. Legal responsibility for criminal activity, likewise, doesn’t have to go from nothing to total. The requirement to get schooling could be transformed into the availability of free schooling and ultimately, depending on the country’s resources, the need to pay some fees. Drug-taking could be allowed first for “low-voltage” substances like beer, marijuana, or coca leaves. As the age of greater and greater discretion is achieved, the limits would be fewer.

I’ve stressed repeatedly that children’s lack of experience affects which rights are useful to them. It also affects whether they can exercise them. Saying that children have rights, but then not providing any means to compensate for their huge inequality in any struggle with adults is to render those rights meaningless. So the question is really a specific and acute instance of the more general problem of how to give weaker parties the tools to deal with stronger ones.

In many way, the rights stipulated here would change nothing about normal family life and upbringing. What they (try to) do is codify that situation so that it can be made to apply to all. Normal family and school life aren’t nearly as far off the mark as many of our other deviations from fairness and justice. That may not be too surprising given that most normal people care about children, certainly more than they do about any other class of human beings. There aren’t that many changes needed in normal situations. Where society fails badly is in the abnormal cases, the ones where children are neglected, abused, or preyed upon. And the core reason for that failure is that children have no rights. The optimum balance will be enough rights for the child to avoid, escape, or stop bad situations without interfering in benign families that require no interference.