Academic journal article Thymos

Sexual Consent and Human Rights

Academic journal article Thymos

Sexual Consent and Human Rights

Article excerpt

The basic human right to sexual autonomy and self-determination encompasses two sides: it enshrines both the right to engage in wanted sexuality on the one hand, and the right to be free and protected from unwanted sexuality, from sexual abuse and sexual violence on the other. This concept elaborated by the European Court of Human Rights, in the light of European legal consensus, suggests that the age of consent for sexual relations (outside of relationships of authority and outside of pornography and prostitution) should be set between 12 and 16 years. In any event the age of criminal responsibility should be the same as the age of sexual consent.

Keywords: sexuality, human rights, age-of-consent, adolescence, sexual abuse

The central idea of human rights is uniqueness and autonomy of the individual. Or, as the German Constitutional Court (BVerfGE 7, 198; 48, 127 [163]; 49, 286 [298]) put it in the words of the German philosopher Immanuel Kant: a human being must never be used as a means to an end, but always has to be the end in itself! An old Jewish saying is: if you are destroying a single person you are destroying a whole world and if you are saving a single person you are saving a whole world. That is exactly what human rights are about: human dignity, consisting in uniqueness, autonomy and self-determination of the individual.

It follows that human sexual rights, being fundamental rights in the area of sexuality, should be manifestations of a basic principle of sexual autonomy and sexual self-determination, and should work for the preservation of human dignity. Correctly understood, this basic right to sexual autonomy and self-determination encompasses two sides: it enshrines both the right to engage in wanted sexuality on the one hand, and the right to be free and protected from unwanted sexuality, from sexual abuse and sexual violence on the other. Both sides of the "coin" must be given due weight and neither one neglected if human sexual dignity is ever to be fully respected. Anybody who favors one side over the other- the right to wanted sexuality on the one hand or to freedom from unwanted sexuality on the other- or who respects neither, should be considered in violation of human rights.

It is the task of lawmakers and legal practitioners to find a reasonable balance between these two sides of the coin "sexual autonomy". This task is both necessary and difficult. It is as noble as it is overwhelmingly important, especially with respect to young people to whom we shall pass on our ideals and values of respect for dignity and individual autonomy.

I am not the only one who holds this view. It has also been proposed by the European Court of Human Rights (ECtHR) (http://www.echr.coe.int), and it is exactly the conception of sexual rights which appears in the case-law of the ECtHR. It requires legislatures to employ criminal law as the strongest weapon a state has, whenever necessary for the effective deterrence of violence and abuse (X. & Y. vs. NL 1985; Stubbings & Others vs. UK 1996). Furthermore, it requires state agencies to protect against violations of sexual integrity (Z. & Others vs. UK 2001; E. & Others vs. UK 2002; M.G. vs. UK 2002). At the same time, the Court makes it clear that the individual has a fundamental right to autonomy and sexual self-determination (L. & V. vs. Austria 2003; S.L. vs. Austria 2003; 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; Frette vs. France 2002). This right is not restricted to adults. The Court awarded an adolescent compensation for having been prevented, between the ages of 14 and 18, from entering into relations corresponding to his disposition for homosexual contact with older, adult men. (S. L. vs. Austria 2003, par. 52).

In striving for the best balance between the two sides of sexual autonomy, European states set the minimum age limit ("age of consent") for sexual relations between 12 and 16 years of age (the only exception being Northern Ireland with an age limit of 17, which the British Medical Association repeatedly has asked to reduce to 16), most of them establishing an age of 14 or 15 (Graupner, 2004). …

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