Informed Consent and Children

by bjmuirhead

For months, I have been sitting around thinking, neither writing nor photographing or doing anything else at all.

Over the past two days, however, the following has burst out of me. It was intended to be a small post, but turned into a rather large essay instead.

IT IS A FIRST DRAFT!!! I may or may not revise and refine, but in the meantime, here is the draft.


informed consent and children


Sexual consent, what it is, and who is capable of giving it, is a huge issue in contemporary life and thought. In so many public discussions the idea of consent is rendered into nonsense simply because there is great disagreement about almost every aspect.

Outside of the arena of sex, there are many areas of human life where consent is necessary, the most important and paradigmatic area being medical treatment.

The demand for free and informed consent first arose, as I understand it (though I may be wrong), out of biomedical ethics, and the need for a patient to provide consent to medical procedures and treatment in an informed manner. Hence the onus was on the physician to fully inform the patient of the nature and potential outcomes, both positive and adverse, of a surgical procedure, and of the nature of any non-surgical treatment and it’s potential outcomes, both positive and adverse. It was not envisaged that the patient would be taught medicine in any way, but that they would be provided with sufficient information that it would be possible for them to provide consent based on some degree of knowledge of the effects of the procedure and/or treatment.

This model of consent has been transferred to the moral realm, with a specific emphasis on sex, and, more specifically, children and sex.

The obvious, and necessary emphasis in the biomedical model of informed consent is knowledge, as it is in the sexual model. In respect of sex, Kershnar (2001 113–114) says

Informed consent occurs where the consentor has a sufficient level of knowledge about the nature of her choice and its consequences. Free consent occurs where the consentor is sufficiently independent from subordination to others. These two dimensions admit of degrees and are independent of one another.

Both medically and sexually, the level of knowledge of the consentor, and their freedom from subordination are relevant, though, perhaps, only the question of knowledge is easily answered: there are facts concerning what will happen which are easily answered both medically and sexually, and if we leave out of consideration unforeseen complications, i.e., reactions which are unusual and specific to the consentor, these facts are given easily, although the depth of information provided in respect of sexual consent seems to me to be difficult to establish. Should we, e.g., be required to admit to any physical oddities (extremely large labia, a bend in the penis, and so on), sexual quirks, or the seriousness with which we regard sexual activity in terms of love, relationships, pleasure, and so on. It would seem to me that thoroughly informed consent, freely given, requires a great deal of personal information prior to consent to sex, or it cannot be regarded as fully or adequately informed or at least this is the case if we believe that sex has significance over and above physical pleasure.

It is not at all clear, however, that a patient can be anything other than subordinate to their physician. Indeed, the requirement that the physician provide relevant medical information is an attempt to reduce the subordination of the patient to the physician, with varying degrees of success depending on the physician’s willingness and ability to provide the information. Similarly, in sexual terms, it is likely that one person always will be subordinate to the other in, say, an emotional sense, and that relevant sexual knowledge and/or experience will not alter this. Simplistically, one always will be the “leader”, the one with the power, and the other subordinate, and this will be the case even if they change roles at different times.

In terms of criminal law, much of what I have said is reflected in legislation. For example, the following is currently the case in Queensland, Australia:

QUEENSLAND CRIMINAL CODE ACT 1899 (Current as at 5 May 2016)

Chapter 32     Rape and sexual assaults

348     Meaning of consent

(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Without limiting subsection (1), a persons consent to an act is not freely and voluntarily given if it is obtained

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the persons sexual partner.

349     Rape

(2) A person rapes another person if

(a) the person has carnal knowledge with or of the other person without the other persons consent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the persons body that is not a penis without the other persons consent; or

(c) the person penetrates the mouth of the other person to any extent with the persons penis without the other persons consent.

(3) For this section, a child under the age of 12 years is incapable of giving consent.

What is important in this is that the relevant legislation reflects our general consensus about the nature of sexual consent and the manner in which it renders the majority of sexual acts illegal.

It needs to be kept in mind, however, that although this section of the Queensland Criminal Code recognises that a twelve year old is able to give consent to sexual acts, it none the less is the case that the prescribed age for sex (age of consent) is 16 years. Moreover, Section 210 (C) states that any person “unlawfully permits himself or herself to be indecently dealt with by a child under the age of 16 years” is guilty of an indictable offence. Consent, this is to say, is irrelevant, as is knowledge and subordination; as is whether or not the person under 16 wanted sex and actively seduced the other. The question of whether someone under the age of 12 can give consent is not addressed; by fiat, they are denied this ability in law.

Bearing the above in mind, what I am interested in in this thought experiment is: can a child can ever give informed consent to sexual activity?

That children can consent is not under question; we know that children can and do give or refuse consent to a variety of activities. We do not, however, demand that this be “informed consent”, e.g., we do not require “informed consent” in respect of a child wanting to play rugby or hockey. We can and do change the rules of play in order to minimise the possibility of harm (injury), but we don’t require a full disclosure of the possible injuries and their potential effect later in life. That the child wants to play a game in which they may be injured, possibly seriously, is irrelevant—some children want sexual experience, and the possibility of injury from sexual experience, even with an adult, has been shown to be very small,(Clancy 2009; Mirkin 2000; Rind, Tromovitch, and Bauserman 1999; Wakefield 2006) perhaps smaller than the possibility of serious and life altering injury from participation in a sport.

That we do not require “informed consent” for the majority of behaviours we permit, and even encourage children to engage in, makes a great deal of sense if Joseph Fulda (2013) is correct in his observation “that consent is and only is a political criterion for determining criminality”. This is to say that we do not require “informed consent” where there is no question of criminality and/or criminal liability. Hence, statutory definitions of consent and their applications, as provided in the above quote from the Queensland Criminal Code.

One last point which needs to be noted before continuing is that I am not, in this essay, interested in the ethics or morality of adult-child sex. All that I am interested in here is whether or not a child is capable of providing “informed consent.”


With the foregoing in mind, let’s enter the experiment, and think about John and Joan:

(a) John, a 30 year old man, is staying at his sisters house, as he frequently does. His sister has a daughter, Joan, who is 11 years old, on the cusp of puberty.

One morning when John is sleeping late, Mum sends Joan into his room with instructions to wake him up. As a part of the process of waking John from a heavy sleep, Joan jumps onto the bed, straddles his body and tickles him.

John and Joan have a close familial relationship, but he has never considered her, or any other child in sexual terms, nor has he ever desired sexual encounters with children. None the less, when he wakes and responds with tickling, he is surprised to experience an erection which he tries to hide by raising his knees. He also tries to get Joan off the bed with an excuse (Go ask your Mum to make me a coffee please.), but Joan is enjoying the game and continues wriggling about and tickling him. She has, in any case, already felt the erection, and knows what it is from sex education at school, and from talking to friends.

The question of sex education is incredibly interesting, if only because many people believe either that children don’t understand what they are learning, or, because they believe it encourages sexual exploration. In respect of the former, Martinson, (1976 258) mentions a 1970 study which it was noted that “cognitive sex education given to children at a very young age is not successful. Young children tend to ‘forget’ what has been told them and are equally surprised each time they are told.” In terms of the fear of sexual exploration, it needs only be mentioned that contemporary sex education tends to focus on the dangers of sex, and preach abstinence (see, e.g. Martinson 1976).1 In any event, irrespective of sex education, it seems reasonable to me to assume that Joan, at age 11, would know that boys have erections, and that she would know that this pertains to sex.

Another point worth making here refers to “cognitive sex education”sex education, as an abstract, as something presented “cognitively,” surely must fail. Sex is a matter of praxis, or, more suggestively, sex is an embodied presence which we enact with ourselves and with others; we engage in and apply our sexual feelings and ideas in ongoing practice, or, more amusingly, of ongoing rehearsal of and within the continuum of human life.

Without thinking about what it may mean, or what she is doing, Joan tries to rub her genitals against it—it’s the first erection she has felt—in spite of his efforts to hide it and get her off the bed and out of the room. Besides, she is enjoying herself.

Of course, there could be many reasons for Joan’s enjoyment, not least of which could be her pleasure at John’s evident discomfort. But, and more importantly, children are, “certainly by the age of five, […] capable of being autoerotically awake and capable of autoerotic experience, including self-stimulation to the point of orgasm.”(Martinson 1976 253) Furthermore, male babies are capable of penile erections, and female babies of vaginal lubrication, (Martinson 1976 251) and orgasm. (Ajlouni et al. 2010; Zhu et al. 2011) On these counts alone, it is entirely probable that rubbing her clothed genitals against John and his erection would be both pleasant (sic) and something Joan would wish to continue to explore.

John is disturbed and worried about what happened, especially by his erection and Joan’s apparent sexual pleasure, and he decides to avoid further occurrences by getting out of bed early, and similar strategies such as no longer permitting her to sit on his lap.

But this does not stop Joan from sitting close to him, hugging, and talking. Almost immediately she begins asking about sex, masturbation, and talks about how the sensations she experienced that morning. She also asks entertainingly innocent questions: Does sex hurt? Is it fun? And so on.

In other words, she asks all the questions one would expect of someone trying to gain knowledge which they do not possess; she does so with the underlying goal of seeking/gaining experience. Of course, she is surprised when some of her questions receive answers about disease, and the need to be careful, but she takes it all in, or seems to do so. She also is surprised that he both seems unwilling to explain everything to her, and that he says that they can never be in bed together again.

Why would Joan do this? There are at least three immediate reasons. Firstly she likes and trusts her Uncle John. Secondly, she enjoyed the sensations she experienced and, thirdly, she wants to experience them again, and as a result she asks questions which will help this goal.

After many days of talking about sex, Joan tells John that she has been practising, with her fingers and, say, carrots, inserted into her vagina. and with more simple masturbation. Although the insertion of fingers and objects into the vagina and/or anus is common in very young children, (Hornor 2004 60) John knows nothing about this and is quite shocked.

He is even more shocked when Joan comes to him one morning. As before, Joan straddles Johns body, tickles him and wriggles about. John experiences another unwanted erection and, again, tries to hide it, but Joan has felt it and, before he can succeed in hiding it, she takes hold of it through the bed clothes, places it between her legs and begins to hump it through the bedclothes.

Joan enjoys this immensely: it feels good to press herself against his erect penis. John, however, knowing how society and law regard this type of sexual activity, stops her, and reminds her that it is both wrong and illegal. Joan’s response is to stop, and tell him that she knows what she’s doing because now she knows what sex is.

John doesn’t believe her, and they talk about sex some more, and he reminds her of all the reasons she shouldn’t want or have sex with him, but, in the end, she convinces him that she has made a genuine decision, based on all the information he has given her, to have sex.

In doing this, Joan has fulfilled the criteria for “informed consent” to sex with John, irrespective of whether or not any further sexual activity occurs between them. (Nor would John have raped her on the basis of the definitions offered by the Queensland Criminal Code, although he would be indictable under Section 210(C) because he permitted a child to engage in sexual activity to which she gave informed consent.)2


The immediate response to the claim that Joan has given informed consent will be to say that John was “grooming” Joan. Indeed, if he had no sexual interest in Joan, he wouldn’t have talked to her about sex, nor explained it sufficiently that Joan believed she wanted sex (with John). This assumes, firstly, that he had no close relationship with Joan in the first instance, and, secondly, that he would have been happy to refuse to answer her questions. In the example as given, neither of these conditions apply. Moreover, in order for what John said to be “grooming” Joan for sex with him, it is necessary for him to have talked to her with that intention. (Elliott 2015) But that was not John’s intention, and he stopped what was happening on both occasions. What he was doing was providing her with accurate information which he did not believe she would act on until much later in her life. More importantly, in terms of my aim in this essay: Joan has the required knowledge, and she does not feel subordinate, if only because she knows she can cause John trouble by telling what has happened. Arguments to the effect that Joan actually is subordinate because of her age do not seem to me to adequately counter the power she actually has, should she choose to exercise it.3

I am inclined, in any case, to the view that grooming, in and of itself, does not entail that a child cannot give informed consent. As Elliott (2015) discusses, it is extremely difficult to distinguish non-sexually motivated behaviour from sexually motivated behaviour directed from an adult to a child. Essentially, grooming behaviour is the same as friendly behaviour, externally, and I see no reason to believe that informed consent cannot be given by a child who is being groomed by an adult. That an adult’s aim is sex with a child, and that an adult is grooming a particular child, does not in itself mean that the child cannot give informed consent. Grooming becomes an issue in respect of informed consent if and only if the adult forces, intimidates, blackmails, or physically assaults the child: “When there is no physical injury, no humiliation, no coercion, and no deceit, it has not been obvious to a great many people that anything is wrong.” (Card 2002 171) The objection that Joan was being groomed for sex, therefore, does not succeed.

A more important objection is that there was physical contact from the beginning, and a sexual response from John, which renders informed consent at a later date impossible because she already has been “sexualised.”

Just as important, however, is that Joan responded with physical pleasure, which in itself is an erotic (sexual) response: We enjoy touching and being touched by people we desire sexually, but we also enjoy being touched by and touching people we love, and what we so often fail to appreciate is the depth of physicality and desire which exists as an erotic presence in all of our relationships (especially family and mother-child relationships), and which does so from birth. (Marin 1994)4

In order to avoid the all too realistic complications of the example, consider the following:

(b) As in the previous version, John is living with his sister, and he and Joan often watch television together. One night Joan asks John a question about sex. He says You should ask your mother about that, but Joan replies that Mum wouldn’t answer, she just got upset. John is surprised by this, but believes that an honest answer is best, and that knowledge is better gained than not. He sees himself as contributing to the sex education classes at school which gave rise to the question in the first place. He answers Joan’s question, and all those that it leads to, as honestly and truthfully as possible, which leads to many discussions about sex, its pleasures, problems, diseases and legalities.

One morning sometime after, Joan goes into John’s bedroom while he is asleep, straddles and cuddles, caresses and fondles him until he wakes. When challenged by John, she states clearly that she wants sex, and would like to have it with him. She tells him about her masturbation, and her desire to go further. On talking to her, John is convinced that Joan knows exactly what she is doing, and why she is doing it, and that she in fact desires and consents to sex with him, and that she will do so with others, irrespective of what they may or may not do together.

This version of the experiment is significantly less loaded than the first—there is minimal physical contact, and no sexual reaction from John, and it is, perhaps for that reason, less believable than version (a). But, if it is less believable, it is so because Joan acted on her own agency: she decided that she wanted the experience that is sex; she decided that she was ready for that experience, and for her choice of sexual partner (it is irrelevant that John may have been the only partner available).

Rather than discussing agency, the more interesting question concerns when children begin to seek sexual experience. Commonly, this is believed to occur at or during puberty, which is regarded as “a physical preparation for adulthood that, along with bodily changes, promotes interest in sexual activity”. (Bellis, Downing, and Ashton 2006 910) Always disguised in views such as this is that puberty is a preparation for reproduction, and that children are capable of sexual function long before puberty. Indeed, in other, more primitive cultures, Clellan S. Ford and Frank A. Beach (in Angelides 2004)

concluded that as long as the adult members of a society permit them to do so, immature males and females engage in practically every type of sexual behaviour found in grown men and women.

Anthropological research has provided many examples of cultures in which children are sexually active, (e.g. Bullough 2004; Fishman 1982) and Milton Diamond (2004) notes that one researcher

cited many cases of full heterosexual intercourse in public between adults and pre-pubertal individuals in Polynesia. The crews of the visiting ships showed no compunction against the activities, and the natives assisted in the efforts. Cunnilingus with young females was recorded without accompanying remarks that this kind of behaviour was unusual or disapproved of for the participants. Occasions were recorded of elders assisting youngsters in having sex with other elders. Among the Marquesas Islanders in particular, Suggs […] reported, extramarital relations were frequent and often involved older males with young virginal females and older females with young virginal males.

The relevance of this to informed consent is not immediately obvious, but it is worth considering, firstly, that “[i]n other societies today as well as in many societies in the past, such [adult-child sexual] behaviour is and was normal” (Fulda 2013), and, secondly, that

It appears reasonable to assume that the child old enough to be aware of himself will awaken sexually in relation to another person as early and to the extent that the opportunity to experience and learn is given or encouraged. (Martinson 1976 255–256)

It is clear from this that when a child seeks sexual experience depends entirely upon the circumstances and opportunities which present themselves within their culture and life. It is entirely reasonable, therefore, that Joan could see what she believes, correctly or incorrectly, to be an opportunity for sex, and act upon this opportunity by providing informed consent via her actions and words when challenged by John.

What is not clear, is whether or not Joan understands what she is doing, what sex “is.” It is to this that I now turn.


In his talks with Joan, John provided explicit (verbal, “book”) knowledge about sex, and she has not yet experienced the acts which correlate with that knowledge, and so does not possess tacit knowledge of sex.

Explicit knowledge can be stated explicitly and even proven or disproven by objective, scientific means, and is the core product of scientific and biomedical research.

Tacit knowledge, on the other hand, is knowledge which cannot be stated explicitly, and which cannot be proven or disproven by objective, scientific means.

In its purest form, tacit knowledge is unformulated knowledge; one example of this is the knowledge we have of what we are in the act of doing at any particular time. That this is so makes us aware that an intermediate area of knowledge also exists, namely understanding, which is the comprehension of experience. Understanding not only bridges the gap between the tacit and the explicit, it also encompasses both types of knowledge. (Michael Polanyi 1958; M. Polanyi 1958)

Another way to talk about this is to say that Joan has learnt the map, but has not yet walked through the territory the map refers to. (Hayakawa 1947 15–18) In order to comprehend (understand) what she knows about sex, Joan has to do sex, i.e., she has to bring her explicit knowledge into contact with the tacit knowledge of experience. Then, and only then, can she be said to understand her knowledge in any deep sense.

But: informed consent does not ask for this type of deep understanding; all that is required is explicit knowledge which a person can show they understand in a non-practical, theoretical sense. If this was not the case, then all occasions of first sex would be instances of rape because there would be explicit knowledge alone, and therefore no ability to provide appropriate consent. In terms of informed consent, therefore, it has to be maintained that she understands if she knows and can talk about what sex is, the potential dangers of sex, and so on. Joan, therefore, in both of the examples provided, is capable of informed consent, and provides it to John when challenged. That she is not legally permitted to provide such consent, and that John is not legally permitted to act upon that consent, does not stand against her ability to give informed consent, and to do so freely.


If this thought experiment has been successful, then it is clear that it is possible for, at least some, children to give informed consent. This does not, of course, end the discussion. Joseph Fulda, (2013) e.g., believes that consensual behaviour is consensual if and only if the consent given is revocable in the future, if the consent given is to be ethical. This view is not relevant to my examples, because Joan’s ability to withdraw her consent is not at issue.5 Others, talking specifically about adult-child sex, talk about trust and the breach of that trust, (Thomas 1996) which was not the case in example (b), though it could be argued that it was the case in (a), ; or the power of the sexually erotic to create powerful bonds which a child may not be able to adequately leave at some later point. (Card 2002)

Each of these responses, and many more besides, deals with the ethics of adult-child sexual relations, and each finds (informed) consent to be inadequate as a means of determining the moral status of adult-child sex. My examples of how a child may give informed consent serve, I hope, to highlight the political and legal nature of the discussion of consent—a discussion which has little or nothing to do with the realities of consent and adult-child sexual relations.



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Angelides, Steven. 2004. “Feminism, Child Sexual Abuse, and the Erasure of Child Sexuality.” GLQ: A Journal of Lesbian and Gay Studies 10 (2): 141–77.

Bellis, M.A, J. Downing, and J.R. Ashton. 2006. “Adults at 12? Trends in Puberty and Their Public Health Consequences.” Journal of Epidemiology and Community Health 60 (11): 910–11. doi:10.1136/jech.2006.049379.

Bullough, Vern L. 2004. “Children and Adolescents as Sexual Beings: a Historical Overview.” Child and Adolescent Psychiatric Clinics of North America 13: 447–59.

Card, Claudia. 2002. “What’s Wrong with Adult-Child Sex?” Journal of Social Philosophy 33 (2): 170–77.

Clancy, Susan A. 2009. The Trauma Myth: The Truth About the Sexual Abuse of Children—and Its Aftermath. Basic Books, New York.

Diamond, Milton. 2004. “Sexual Behaviour in Pre-Contact Hawai’i: A Sexological Ethnography.” Web Page. Pacific Center for Sex; Society; Web page.

Elliott, Ian A. 2015. “A Self-Regulation Model of Sexual Grooming.” Trauma, Violence, & Abuse. doi:DOI: 10.1177/1524838015591573.

Fishman, Sterling. 1982. “The History of Childhood Sexuality.” Journal of Contemporary History 17 (2): 269–83.

Fulda, Joseph S. 2013. “The Limits of Consent.” Sexuality and Culture, February. doi:10.1007/s12119-013-9168-3.

Hayakawa, S. I. 1947. Language in Action. Harcourt, Brace; Company.

Hornor, Gail. 2004. “Sexual Behaviour in Children: Normal or Not?” Journal of Pediatric Health Care 18 (2): 57–64.

Kershnar, Stephen. 2001. “The Moral Status of Harmless Adult-Child Sex.” Public Affairs Quarterly 15 (2). [North American Philosophical Publications, University of Illinois Press]: 111–32.

Marin, Lynda. 1994. “Mother and Child: The Erotic Bond.” In Mother Journeys, Feminists Write About Mothering, edited by Maureen T Reddy, Martha Roth, and Amy Sheldon, 9–21. Spinsters Ink, Minneapolis, MN.

Martinson, Floyd M. 1976. “Eroticism in Infancy and Childhood.” The Journal of Sex Research 12 (4): 251–62. doi:10.1080/00224497609550945.

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Rind, Bruce, Philip Tromovitch, and Robert Bauserman. 1999. “The Clash of Media, Politics, and Sexual Science: An Examination of the Controversy Surrounding the Psychological Bulletin Meta-Analysis on the Assumed Properties of Child Sexual Abuse.”

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Zhu, Bing-gen, Han-jun Kong, Zhi-qi Sun, and Rong-shen Zhu. 2011. “Tranisition from Paroxysmal Disorder in Infancy to the Masturbatory Orgasm in Childhood.” International Journal of Sexual Health 23 (4): 278–81. doi:10.1080/19317611.2011.621821.


1My children, not more than a few years ago, met this style of sex education with great laughter, much to the discomfort of their “teacher”, and many fellow students who claimed total ignorance of all matters sexual.

2I should point out that I am not a lawyer, and I have not researched any applicable common law or precedent. I am offering a philosophic, not a legal, opinion.

3Indeed, her actual power is such that she could force him to have sex with her (which is what she wants) by threatening to expose what has happened if he doesn’t do as she wants. This is power indeed.

4See also Claudia Card, (2002 171) who notes that “Breast-feeding of infants and small children is commonly a source of sexual pleasure for mothers. I find nothing wrong in that. Breast-feeding does not become abusive even if the mother does it, rather than bottle-feeding the baby, just because she enjoys that sexual pleasure. Shortly I will argue that over time even breast-feeding can become problematic, but not because of the adults sexual pleasure.”

5In respect of adult-child sex, Fulda specifically refers to Card’s view that the erotic bond is powerful and may not be able to be broken, thus disadvantaging the child at some point. His example, however, is disingenuous in the extreme.