II. Sexuality Between Children and Adults
l. The Rights of Pedosexually-Acting or Pedophilic Adults
Adults have no right of possession over children. But thereis a right of each person to his or her sexuality. Thequestion as to where the boundaries of this right lie must beanswered in a new, yet to be formulated sexual ethic. At thesame time, the rights of the weaker party - of thechild - must serve as our standard.
2. Children's Right to the Undisturbed Development of Their Sexuality
Arising from the fundamental human right to sexual enjoymentis the child's right to the development of his or hersexuality. Therefore, every imposition of sexual contact, and every act carried out via force or violence, must be rejectedas a serious interference. On the other hand, anything whichimpedes a child from uninhibitedly and enjoyable experiencinghis or her sexuality, and bringing it into harmony with his/her own self and environment, also constitutes interference. It is, above all, interference when an adult categorically fights against a child's sexual curiosity ordesire for (self-focused) sexual experience via authoritarianprohibitions. Bringing up a child with prohibitions which canonly be maintained via the exploitation of dependencyrelationships and the setting up of groundless fears hasdisastrous consequences, particularly in the area ofsexuality. Such an upbringing plunges the child into serious conflict between his or her own conscious or unconscious needsand external demands, which can be enforced via the might of authority. Such an upbringing may well betraumatizing not only in terms of associating the sexual withwhat is bad, guilt feelings, insecurity, or even fear anddisgust, but also by instilling an inclination to either actagainst prohibitions, or do harm to others who do what is forbidden.
3. Children's Right to Sexual Self Determination
Selfdetermination presumes the existence of a will of one'sown. Frequently, children's difficulties in intelligiblyexpressing their will to adults gets misinterpreted as anabsence of will. The question as to whether one mayeven speak of a child already having his or her own will can only beanswered in the affirmative, based on what we know about "children's stubbornness." Admittedly, depending on the child's age and personality, as well as the conduct of thosearound him or her, this initial obstinacy- arising fromspontaneous feelings of pleasure of displeasure - can be moreor less influenced by upbringing and environment. Even a thus overformed (i.e. outside-determined) will can be subjectivelyexperienced by the child as being his or her own (i.e. self-determined) will, and is thus to be respected as such. .
Whenever two or more people gather, however, there is alwaysthe possibility - and should the situation arise, the1 necessity - of one's will being influenced. The question of whether the exertion of influence on the child's will is - inthe self determination sense - justifiable or not has todepend on the needs of the child, as well as on the nature andways in which these exertions of influence take place. Whatis not justifiable, and is characterized and rejected as anabuse of power in the sexual realm, is the employment of dishonest means. As such must be deemed: misleading someone or withholding necessary information from them, thepromise of extraordinary advantages or the threat ofdisadvantages, the generation of groundless fears, suggestive urging, and self-evident compulsion and physical encroachments (see No. 4).
It is certainly necessary to prevent acts whose scope is notdiscernible to the child, but which would harm them; thus,acts which would be a violation of the child's integrity (see No. 5).
On the other hand, just as in other spheres of life, in thearena of sexuality as well it is wrong to influence a child'swill for the sole purpose of condemning the child, because heor she turned what had been unfamiliar into knowledge, or was open to new realms of experience. Fundamentally, childrenneed, in order to practice self-determination and socialresponsibility, the freedom to have new experiences; in no waydoes increasing knowledge conflict with this - quite the contrary.
The child's right to sexual selfdetermination must beuniversally recognized as the supreme principle: The expression of the child's will - the spectrum ranging fromthe spontaneous turning away or turning towards, on up to theexpress yes or no - is to be given space, and the will itselfis - in all fairness to the prevailing debate - to be respected. Moreover, children's decisions, which to a greatextent follow the pleasure principle, are by no means ofpoor quality as such, but are based on a deliberate weighingof factors. The too must count as full-fledged acts of self determination.
4. On Equal Rights and Consensuality in PedosexualContacts
There is a power and influence gradient between adults andchildren, just as there is no such thing as complete equalityand independence in any human relationship. Despite thisinequality between people, equal and consensual acts areprobably quite possible, if the standard is the weaker party's desire to engage in the act, and thus, if the stronger partydoes not take advantage of his power in order to carry out hisown, one-sided wishes. Pedosexual contacts also fall into thecategory of such acts, which, in spite of the partners'inequality, can be structured equally and consensually. Thosewho treat the child with openness and sensitivity allow,promote, understand, and take seriously the child'sexpressions of his or her own will.
We cannot, however, speak of equality and consensuality whenan adult goes against the child's will. Moreover, this is notmerely a matter of coercion and physical encroachments; thelatter are only the most extreme forms of flouting the child's will. Equality and consensuality are also violated when thechild him/herself doesn't dare express his/her refusal, or doesn't know how to go about doing so. Because of theirsuperiority, adults bear the burden of recognizing andif respecting the child's will. When children sense sincerity,the risk that they will simply acquiesce is small; on the other hand, when unfair methods are employed to influence thechild's will (see No. 3), the risk is great. Moreover, withinthe family, or under conditions similar to those of a family,the risk that power will be abused is particularly great,because there, the child must turn to others for the meetingof such primary needs as lodging, food, and clothing.
5. On the Special Responsibility of Adults Regarding theSafeguarding of Equality and Consensuality
Even consensuality does not guarantee - in every case of asexual act - protection from each and every potential, partial, indirect, or direct violation of a child's integritythrough the contact itself.
Therefore, such a violation is present, even in consensually arranged sexual acts, when:
- force or violence plays a role in the sexual acts,
- as a result of the sexual acts, harm is done to the child's well-being, or his or her life is thoughtlessly ordeliberately put at risk,
- the sexual act leads to pregnancy, thereby making thechild's later life-journey more difficult.
In the case of such concomitant or direct effects of sexual acts, we may proceed based on the assumption that the adulthas not properly borne his or her special responsibility(his/her obligation to look after the child's welfare): thatis why those types of behaviors would also constitute the "abuse of power."
6. On Protecting Children from the Abuse of Power in Sex
Fundamentally, it holds true that only agreed-to and enjoyedsexuality can help a person develop and flower. Decisive forpositive development, however, is the anxiety-free enjoymentof sexuality - without any feelings of guilt - right fromthe beginning.
Protecting children from the abuse of power in thesexual arena should not equate to a prohibition on sexuality.A blanket prohibition on sexualbehavior in no way protectschildren against inhumane sexual experiences; to the contrary:it only makes them much more likely. Protection lies,instead, in affording and guaranteeing both the right to sexual self determination, including, and especially, vis-à-vis children, as well as the ability to exercise that right, through experience, and through the strengthening of their self confidence. When children take to heart statements such as "Trust your own feelings" or "You have the right to want or not want to," the necessary and first prerequisite for their protection from abuse of power is a given. This is not thecase when one prevents them from having sexual experiences orinstills fear in them.
7. Potential Consequences of Sexual Contacts
The consequences which sexual contacts have depend criticallyon the structure of the contacts, as well as the environmentin which they take place.
Scientific studies and expert court psychologists haveestablished again and again that there is no detectable harmfrom sexual contacts in which the child's sexual self determination and integrity are preserved. In these cases, bycontrast, neutral to positive consequences were reported. Positively experienced sexual contacts are enriching, and are,therefore, worthy of protecting.
Even the assertion of many behavioral psychologists thatparticular sexual contacts lay the groundwork for laterhomosexuality or pedosexuality has been proven false by sex research in recent decades.
Unlike sexual experiences per se, violent experiences inthe sexual arena do have negative consequences.These, like violent experiences in general, always cause harm.
8. Possible Consequences of Normative and Statutory Rules
To the extent that it protects the child from the abuse ofpower, the criminal law does have legitimacy. But certainly,when even consensual and harmless acts are threatened with punishment, the criminal law is unjust. It then fundamentallyviolates personal rights, and constitutes an indefensibleinterference by the state, into the personal sphere. With the criminal law currently in effect, this is indisputably thecase. That is why attention must be drawn to these negative consequences.
To the extent that it categorically suppresses thesatisfaction of basic needs, constricts the experientialhorizon, and curtails the right to self determination in critical ways, the sexual criminal law is both violent andinhumane. It causes more conflicts and problems than it prevents.
Children who are not harmed as a result of the sexual actitself, but only really become victims and suffer harm becauseof a report and ensuing legal proceedings, are not theexception. Both the fact as well as the methods of policequestioning, as well as the carrying out of court proceedings,violate the intimate sphere in the most irresponsible of ways.Positive experiences with sexuality are, thereby, turned into quite the opposite. Children often emerge from suchproceedings seriously emotionally wounded, and with profoundfeelings of guilt: feeling guilty both because they have allegedly done something bad, and because they betrayed the "perpetrator" they had been friends with. Even when the authorities try to act with discretion, history shows thatthey always let something slip, thereby leaving the "victims" permanently stigmatized. In such cases the criminal law -which professes to protect children - harms them.
Also suffering from this kind of criminal law is the adult who - whether he did indeed have sexual contact with a child orwas merely accused of having done so - often suffers aprofound contradiction between his or her own sense of what isright and good, and the rebukes of the state's attorney.Through the intervention of the justice system, his/herexistence - as well as that of his/her family - can bepointlessly put at risk, if not actually destroyed. What ismore, in the face of such a threat, he may not be in a position to act objectively and carefully with the child.
Moreover, because of the existing laws and social prejudice,which regards every - even the most positive – sexualcontact with a child as abuse, thereby requiring that it bekept secret, it can be readily used for the purposes ofexploitation, defamation, extortion, or coercion. Theobligation to conceal leads the adult and child intoisolation, and thus, into relationship problems as well.Thus, neither positive experiences, nor difficulties, can bediscussed with either parents or friends.
As in any relationship, problems can arise in pedophilicrelationships as well. In the courtroom, though, they areripped from their social contact and artificially delimited tothe sexual sphere. This hardly contributes to a solution, or the prevention of difficulties, instead, it typically causesor exacerbates them.
Those who outlaw gentle interactions with childsexuality drive erotic contacts between adults and children underground, and could even - instead of stemming childprostitution - be promoting it. Prostitution, sex tourism,and pornography are the result of unmet human needs; what thisshows - among other things - is how unreservedly sexuality,in our society, can be placed at the service of powerstructures, and trivialized as merchandise. Conditions underwhich persons or their situations are arbitrarily at thedisposal of others are to be rejected and combated. On theother hand, such conditions cannot be seen, understood,criticized, and changed without calling into question bothcurrent sexual morality, as well as the prevailing social conception of morality.
9. Conclusions and Proposals
Physical and psychological violence does exist, including in the area of sexuality. However, sexuality - even betweenchildren and adults - is not automatically accompanied by violence. Sexuality and violence must, therefore, be clearly delineated from one another.
Sexuality must not only be recognized as a means ofprocreation, but also an instrument of communication and self realization, as a source of joie de vivre.
The suppression of child sexuality via medically, psychologically, or religiouslymotivated prejudices does notstand up to scientific examination, and, in a pluralistic
society, should not serve as a guiding principle forlegislation.
Because people of every age have - and can express - sexual feelings, children's right to sexual self determination, and therefore also to sexual activity, must be acknowledged and respected. Children must be allowed todecide - and give voice to - whether, and with whom, theywant to experience sexuality. In the sexual sphere as well,just like in other arenas, adults should not - from the outset - exploit their superior position to the detriment of the child.
Because the right to sexual selfdetermination applies equallyto adults, the right of pedophiles to their sexuality must be acknowledged as well. The boundaries of this right are wherethe abuse of power begins. Accordingly, the criminal lawshould be revised in such a way that it is not sexual actsthat will be punishable, but rather, the abuse of power in thesexual arena. Moreover, the following factors and values should be taken into account:
- the (in principle) guaranteed (but in practice notattained) legal equality of women and men;
- a fundamental philosophy of openness vis-à-vis sexuality;
- the current status of knowledge of psychology, sexualscience, and social science regarding sexuality and sexual contacts;
- the need to avoid (secondary) harm to children which canresult from criminalization and criminal prosecution; and,
- the appropriateness of the means.
What is to be demanded of legislators, is that they beaware of the normative effects of their work. Because of their special social responsibility, they have the obligationto first become fully informed themselves and then put together new majorities by educating their peers, instead of short—sightedly adding to existing majorities.