Taking liberties

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The problem of consent

Another obviously gender specific issue is the campaign for an age of consent which applies equally to heterosexuals and homo­sexual men. What is not widely recognised, and is not mentioned in Liberty's coverage of the issue, is that the age of consent is a gendered concept - it applies only to heterosexual women. There is no age of consent for hetero­sexual men, but rather an age of assumed sexual capability - and therefore of criminal culpa­bility for such acts as rape. In other words the law encodes a model of heterosexual acts as something men do and women merely consent to (or not). Femi­nists have long been aware that this derives from a history in which male sexual access to a women's body was an act of appropriation whereby a man gained rights over a woman's person, property and labour. This history should not be ignored, for we do not yet live beyond its influence.

The extension of the concept of the age of consent to gay men has been a result of the partial decriminalisation of homosexuality. The only model available for the enforcement of age-limits was one developed through heterosexist assumptions of sexual activity and passivity, effectively positioning (sic) gay men in an analogous situation to straight women: consent­ing to have 'it' done to them. This model of sexual relations is clearly absurd since in practice both active and passive partners are equally liable to prosecution for sex with someone under the age of consent. Yet the assumption of an active older man and a passive younger man certainly shapes the thinking of some of those who oppose lowering the age of consent, who see it as a license for men to bugger young boys. I am not suggesting that the age of consent campaign is misguided, merely that it should be recognised that it does not render gay men formally equal to heterosexual men but rather to heterosexual women. This holds true whether one regards the age of consent for women as repressive discriminatory legislation or a necessary protection against male sexual exploitation.

The lack of attention given to these issues is surprising since the NCCL (now Liberty), argued in the early 1980s for the removal of the age on consent on the grounds of sex discrimi­nation - an argument controversial at the time since many feminists felt (and still feel) that it was necessary to protect young women from sexual violence and exploitation. The history of heterosexual age of consent legislation has also been much debated among feminists, particu­larly in terms of whether its protective intent was progressive for women or repressive of their sexuality. This has been ignored despite the fact that it was the same piece of legislation - the Criminal Law Amendment Act of 1885 - which both raised the heterosexual age of consent to 16 and outlawed 'acts of gross indecency between men'.

source: Article 'Taking liberties' by Stevi Jackson; www.troubleandstrife.org/articles/issue-34/taking-liberties/; Trouble & Strife, Issue 34; Winter 1996/97