Censors, sex and the age of consent

imagesSouth African readers have most likely heard that Jahmil X.T. Qubeka’s “Of Good Report” could not be screened at the Durban International Film Festival, after the Film & Publication Board’s (FPB) refusal to classify it. Not giving the film an age-restriction means that the FPB has made it a criminal offence to show or watch the film, so a refusal to classify has the same effect as a ban. Their stated reason for this is that they believe the film to contain child pornography, in that it contains a scene of a woman receiving oral sex, closely followed by that woman being revealed as a 16 year-old schoolgirl.

I mentioned on Twitter that it was odd for us to have 16 as the legal age of consent, while sex acts could not be recorded or screened unless the participants were both 18. There are no doubt a lot of criminal 16 and 17 year-olds out there, thanks to the ubiquity of cellphone cameras and sexting. And this commend led to a rather fruitless exchange of views with the cartoonist Jerm (or, Jeremy Nell), on the appropriateness of age restrictions. You can read more about the movie ‘banning’ on Daily Maverick or Africa is a country. The rest of this post will focus on the general issue of age restrictions.


In response to the Tweet posted above, I agreed that any particular age of consent was arbitrary, just as age limits on driving or drinking are, but said that there was no efficient and also principled way to do it without imposing an arbitrary age. In a future world where we can track capacity for factors like reason and consent in real-time, we’d perhaps not need these arbitrary limits, and particularly co-ordinated, willing and fearless 13 year-olds could get emancipated and go fight wars if they like.

But in the meanwhile, we need to work on expected or probable capacity to perform the function in question, whether it be drinking, driving, voting or consenting to sex. And yes, while it’s true that sex used to be legal at an earlier age (as Jerm points out), it’s partly because of predation that it was increased. An age of consent makes it easier to prosecute sex offenders, on the assumption that in general, people either aren’t consenting, or aren’t sure what they are consenting to (so, not consenting) below the age stipulated.


While we can get these various ages wrong, and various jurisdictions disagree on where to set them (or so do inconsistently), I can’t see any merit in the suggestion that this should be a family matter, rather than a state matter. In fact, I find the suggestion even less principled than a state-imposed limit, because we have no reason to trust the family’s entirely subjective judgement in these matters more than we should trust the aggregate gaze that a state could apply.


As I said above, the precise age is always going to be arbitrary, because there is no age that guarantees “full” maturity or competence. What we’re aiming for is “adequate” maturity or competence, such that we limit as little freedom as possible while protecting the largest proportion of various vulnerable populations that we can. And here’s the thing: it is possible to triangulate on the appropriate age in general, even if individuals might not fit the norm. But as I’ve previously argued, the exceptional cases should not be the basis for policy:

laws or insurance premiums can’t be tailored to individuals. As much as we are individuals to ourselves, interventions intended to work on aggregate have to treat us as belonging to a category – and the question then becomes how those categories are defined. And here, we need to start thinking about the least wrong way of doing this, and perhaps being more willing to tolerate principled ways of treating us simply as a number.

If we can find the approximately appropriate age, then we know that we’d be making fewer mistakes (in terms of restricting freedom) the closer someone is to that age, and doing more good (in terms of protecting more people from harm) the further away (younger) someone is from that age. Jerm seems to think that the law shouldn’t be about morality at all, though,


which seems rather odd, seeing as we couldn’t have any laws against theft or torture if that were the case. But let’s assume he’s talking about only sexual morality – even then, I’d not be comfortable with the absence of a legal prohibition against incest with toddlers. The point is that laws shouldn’t impose arbitrary morality – that I agree with. Again, if we know that in general, consent is likely to be absent, we’re taking pragmatic steps to protect people from harm rather than imposing a moral standard when we say that it’s illegal to have sex with a 15 year-old.

So while we can debate what an appropriate age is, I don’t see room for discarding the concept of establishing and maintaining a guideline. And, as for how to set these guidelines in the least arbitrary way possible, we do have relevant knowledge. It would be a simple matter to track road accidents, for example, and do some analysis of factors like the age of drivers, and their levels of intoxication. (One might even suggest that insurance companies have cottoned on to these arcana.)

If it turns out that 16 year-old drivers look to be as safe as 20 year-old drivers, we know that we should either a) let 16 year-olds apply for licensing or b) not let 20 year-olds do so. And if a blood alcohol level of X gives you the same risk profile as a level of 0, we know that X is safe, etc. The fact that states might take shortcuts in figuring this stuff out and making the laws doesn’t mean there aren’t sound principles by which to do so, if we had the time and desire to.

Then, more generally – we know that it’s only at age 25 or so (for men) and 23 or so (for women) that the prefrontal cortex (PFC) reaches maturity. The PFC is the last part of the brain to develop, and (unfortunately for parents) is the part of the brain that governs impulse control, risk-seeking/aversion, and that encourages hyperbolic discounting (in short, we need a developed PFC to balance short-term rewards against long term goals). Putting that together, what we have is a brain that conduces to driving too fast, on too many drugs or too much booze, to get to a place where you’ll enjoy lots of sex with too many strangers and too few condoms.

In other words, it wouldn’t be at all arbitrary to say that 24 (to pick the mid-point) would be an efficient and justified way to limit all sorts of activities. But asking people to wait a third of their lives before driving or having a drink seems excessive, so we pick a younger age (exactly how young can vary, depending on the severity of risk in question) where most people are likely to be competent, even if some mistakes will be made. It’s a question of pragmatism, not of morality.

By Jacques Rousseau

Jacques Rousseau teaches critical thinking and ethics at the University of Cape Town, South Africa, and is the founder and director of the Free Society Institute, a non-profit organisation promoting secular humanism and scientific reasoning.