Children, Sexuality, and the Law

Sacha M. Coupet, Ellen Marrus

• Publisher: NYU Press
• Year: 2015
• ISBN:
  9780814744475
• Topic: Law
• Subtopic: Family Law
• Index: Law

American political and legal culture is uncomfortable with children's sexuality. While aware that sexual expression is a necessary part of human development, law rarely contemplates the complex ways in which it interacts with children and sexuality. Just as the law circumscribes children to a narrow range of roles—either as entirely sexless beings or victims or objects of harmful adult sexual conduct—so too does society tend to discount the notion of children as agents in the domain of sex and sexuality. Where a small body of rights related to sex has been carved out, the central question has been the degree to which children resemble adults, not necessarily whether minors themselves possess distinct and recognized rights related to sex, sexual expression, and sexuality.

Children, Sexuality, and the Law reflects on some of the unique challenges that accompany children in the broader context of sex, exploring from diverse perspectives the ways in which children emerge in sexually related dimensions of law and contemporary life. It explores a broad range of issues, from the psychology of children as sexual beings to the legal treatment of adolescent consent. This work also explores whether and when children have a right to expression as understood within the First Amendment.

The first volume of its kind, Children, Sexuality, and the Law goes beyond the traditional discourse of children as victims of adult sexual deviance by highlighting children as agents and rights holders in the realm of sex, sexuality, and sexual orientation.

1

Smells Like Teen Spirit

The Conundrum of Kids, Sex, and the Law

Paul R. Abramson and Annaka Abramson

Do kids have agency in the arena of sex? Are they rights holders as well? Does the pursuit of happiness entitle minors to sexual liberties? If so, whose liberties prevail when rights collide, parents or children? Can children be protected from sexual harm without usurping potential sexual rights? These questions and more are discussed herein, serving as an introduction for the chapters that follow.

Mainly, however, this chapter is a primer on childhood sexuality, particularly as it relates to the pleasures of sex, which form the centerpiece throughout.

Childhood Sexuality

Childhood sexuality encompasses many issues; self-exploration, biological development, evolutionary psychology, the cultural processes through which kids learn about sex, the cognitions that determine how kids operate sexually, and so forth. The unifying theme throughout this discussion, however, is the recognition of sexual pleasure, as the primary reason that humans of all ages engage in some form of sex.1

It starts right after birth. Male infants are capable of erections, whereas female infants are capable of vaginal lubrication.2 Masturbation, in the form of a pleasure-seeking, rhythmic manipulation of the genitals, is not far behind, at one to three years of age.3 Sexual curiosity is evident by nine, with kids being interested in nudity, sexual talk, hugging and kissing, sexual feelings, and reproduction.4 As puberty unfolds, goal-seeking sexual activity begins (e.g., kissing, touching, etc.), ultimately culminating around sixteen years of age in penetrative or orgasmic sex.5

These are the general parameters of childhood sexual development,6 but they are markedly imprecise. The data, unfortunately, are sparse and rudimentary, and kids vary enormously between genders and across cultures. Methodological limitations also characterize the field (e.g., reliance on self-report), and gaining university human subjects approval for research on childhood sexuality is another matter entirely.

Recalled by adults, childhood sexuality is undoubtedly distorted, too, and the questions we ask are heterosexually biased.7 But, among the few things that we do know, it appears that sexual exploration with other children, and exposure to routine parental nudity and behavior, are unrelated to adverse psychological aftereffects.8 Educated moms are also more likely to have sexually exploratory kids (reflecting a more permissive parental attitude about sex),9 but gay and lesbian children are more likely to suffer cultural condemnation when compared to their heterosexual counterparts.10

Childhood sexual rights, however, are something else again. Though we protect kids from sexual harm, we don’t want to straightjacket them, either. The real question, then, is whether the capacity for intense sexual pleasure serves as an entitlement to rudimentary sexual rights for kids. If sex (starting with masturbation) feels great and is void of tangible harm, should kids have discretionary choices on how to express their burgeoning sexuality? Are kids sexual agents, or is childhood sexuality subsumed under parental control, irrespective of its psychological value to kids?

These are among the factors that arise when wrestling with the conundrum of children, sex, and the law, but they all build upon our understanding of the significance of the pleasurability of sex in childhood.11

Sexual Pleasure

Sexual pleasure encompasses a loosely defined collection of physiological and psychological responses. Physiologically, it appears that the capacity for sexual pleasure is hard-wired in the sense that, as noted previously, it constitutes an innate and universal aspect of human sexual anatomy. Like any intrinsic characteristic, however, sexual pleasure is moderated by and unfolds within a particular physical and cultural milieu, all of which is also shaped by how children perceive the etiquette of sex as assimilated through societal norms and influences (e.g., television, movies, Facebook, Google, YouTube, iPhones, etc.). These cultural vagaries undoubtedly also influence both the overt expression and subjective experience of sexual pleasure.

Even if the capacity for sexual pleasure is innate and in some sense basic for the human species, one might argue that pleasure is secondary to procreation. This is certainly true for the lower orders of mammals, which, if they experience pleasure at all, are nonetheless restricted sexually to the reproductively fertile estrous periods of the female. With primates, however, one begins to see a bifurcation in the functional meaning of sex. Although the reproductive cycle of many nonhuman primates remains at least partially bound to hormones, sexuality is no longer entirely restricted to the female estrous cycle.12

In humans, the divergence of reproductive and non-reproductive sex is even more striking. Essentially free of the hormonal regulation of sexual desire, women can—and do—engage in sex at any time in their menstrual cycle, irrespective of fertility status. Sexual pleasure is thus not dependent upon fecundity. Postmenopausal women and prepubescent children of both sexes (as noted above) also experience sexual pleasure, but neither is capable of reproducing.

Human sexual anatomy is likewise specialized for pleasure no less than procreation. The sole function of the clitoris, for example, is the generation of sexual pleasure. Though male orgasm is a reproductive function, female orgasm is not, being superfluous to conception. Pleasure, not reproduction, also provides the most parsimonious explanation of non-obvious erogenous zones (e.g., kissing.)

The wide variation in sexual practices observed across historical epochs and cultures, and even within cultures, is largely inexplicable within a reproductively oriented explanatory framework as well. Marriage and monogamy, for example, have vast cross-cultural differences, as does sexual orientation, too.13

Sexual pleasure also provides the foundation for ancillary psychological functions, such as emotional bonding; it is the superglue of humanity.14 The overall evidence thus suggests that the pleasurable and procreative aspects of human sexuality are interrelated but also conceptually, anatomically, and psychologically distinct.15

Where the evolutionary function of sexual pleasure is concerned, the most obvious explanation is that it serves to encourage humans to engage in penile-vaginal intercourse and, thereby, to propagate their genes. That explanation notwithstanding, most people have sex because it is feels good, not because they desire offspring. The mechanism of sexual pleasure is thus an evolutionary adaptation that solves the motivational problem of ensuring that sex takes place despite obstacles or drawbacks.16

If sex could be dangerous for ancient protohumans, sexual pleasure would have made it worthwhile. Pleasure would offset the potential sizable costs of time and energy expenditures, vulnerability to attack, the hazards of pregnancy and childbirth, and so on. Natural selection thereafter would favor those who experienced greater pleasure in sex because they would invest more time into the pursuit of sex. They would have more kids, too, who in turn would inherit copies of the enhanced pleasure-seeking genes.17

Freedom from a fixed hormonal schedule is thus the primary advantage of sexual pleasure. Sexual pleasure can be pursued any time of the day, any time of the year, any time over the course of the menstrual cycle, and ultimately, anytime that humans are relatively healthy. Yet, curiously, sexual pleasure is not limited to penile-vaginal intercourse. Non-procreative sex (from masturbation to oral sex to intercourse with contraception, etc.) is highly pleasurable, too. How then can sexual pleasure ensure the survival of the species if the non-procreative alternatives are equally gratifying?

The answer is that the non-procreative alternatives (masturbation, kissing, touching, oral or anal sex, etc.) are simply an unanticipated concomitant of the evolution of sexual pleasure. Though the alternatives feel exceptionally good as well, enough humans enjoy penile-vaginal intercourse that the species survives—overpopulates, in fact. Since non-procreative sexual activities do not interfere with the reproductive inclinations of most people, they have not been eliminated through the callous machinations of natural selection.

The theory, in a nutshell, is as follows. Sexual pleasure evolved through natural selection to expand the opportunities for protohumans to engage in reproductive behaviors, despite the sometimes substantial risks that these behaviors entailed. The underlying neurophysiology, however, did not restrict the pleasurability of sex to purely reproductive acts or reproductively mature adults. A wide range of sexual behaviors were thus enjoyed at all ages.18 Since sexual diversity did not interfere with the propagation of genes or the regeneration of the species, the pleasures of sex are now integral to the breadth of all forms of human sexual expression.19

If sexual pleasure is an evolved adaptation in humans, when does it manifest itself? The answer, as noted previously, is in infancy and early childhood. Like smiling and laughing, interest in genital stimulation begins early and, for most people, never fades. Childhood sexual feelings, interests, and motivations are also naturally heterogeneous (i.e., open to many sexual possibilities) because childhood is a time for exploring the world, including the proximal world of the flesh.

As puberty unfolds, however, the drive for sexual pleasure is intensified; the aim of sex also shifts from purely self-pleasuring to the consummation of reproductive-like activities and a generalized sensitivity to all things sexual. Though evident in both genders, the shift is especially noticeable in postpubertal males, with the increasing emphasis on orgasm and ejaculation.

Though heterogeneous sexual pleasure is overtly manifested in prepubertal childhood, too, the freedom of exploration is circumscribed by the absence of procreative pressures and constraints. As childhood melts into the postpubertal teenage years—with its attendant sexual opportunities and risks—sexual exploration is thereby amplified.20 The fundamental question herein is whether this age group has legal rights to act upon it.

The Data Dilemma

Though we have provided a useful prototype of childhood sexuality built upon the edifice of sexual pleasure, we have largely refrained from quoting data. As noted previously, there are enormous hurdles to obtaining ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Smells Like Teen Spirit: The Conundrum of Kids, Sex, and the Law
• 2. Consent, Teenagers, and (un)Civil(ized) Consequences
• 3. The Wages of Ignorance
• 4. Sugar and Spice and Everything Nice: Definitely Not the Girls in the Juvenile Justice System
• 5. Sexual Media and American Youth
• 6. Sex, Laws, and Videophones: The Problem of Juvenile Sexting Prosecutions
• 7. The Right to Comprehensive Sex Education
• 8. Policing Gender on the Playground: Interests, Needs, and Rights of Transgender and Gender Non-conforming Youth
• 9. Gender at the Crossroads: LGBT Youth in the Child Welfare and Juvenile Justice Systems
• About the Contributors
• Index