Consent by a child: Are we using the right test?

WHEN a child engages in non-forced sexual intercourse with an adult or older person, does that consent qualify as genuine?

The consent that courts look for in such cases — outward compliance measured against an age threshold — may be the wrong test and the wrong measure.

Genuine consent is a state of mind, not behaviour, and it must be examined as such for both girls and boys. Courts must look at it that way for both.

What consent really means

The law has long drawn a line between consent and giving in. In Regina v Olugboja [1982] QB 320, decided by the Court of Appeal of England and Wales in 1981, the court held that a person can go along with a sexual act without ever truly consenting to it.

So, what does real consent require? It requires four things. First, an understanding of what is being asked and what will follow. Second is the freedom from pressure, fear or dependency created by the other party. Third, the ability to say no without losing something they genuinely need. Fourth is the equality of power between the parties.

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If one of these elements is missing, it is not consent; it is submission dressed up as consent.

The age of consent tells a court when a crime begins. It says nothing about whether a particular child's "yes" was ever genuine.

What a girl's ‘yes’ hides

A girl's "yes" is often shaped by her circumstances. An adult may present himself as a boyfriend, giving her the attention and approval that teenagers crave. The abuse is then mistaken for romance.

Poverty also plays a part. Suzanne Leclerc-Madlala, in her 2008 study, Age-disparate and intergenerational sex in southern Africa: The dynamics of hypervulnerability, published in AIDS, shows how this works. An older man offers necessities — things a child needs to survive. Her acceptance is not desire; it is the price she pays.

Authority works in much the same way. Tichatonga J. Nhundu and Almon Shumba, in their 2001 study, The Nature and Frequency of Reported Cases of Teacher-Perpetrated Child Sexual Abuse in Rural Primary Schools in Zimbabwe, published in Child Abuse & Neglect, examined 110 reported cases of abuse by teachers in rural Zimbabwean primary schools. Ninety-eight percent of the victims were girls, with the most common age being 12.

A girl may also remain silent because speaking out could cost her family its breadwinner. Or she may fear that saying no will end the relationship. Each of these situations can make it appear that she agreed. None amounts to genuine consent.

What a boy's ‘yes’ hides

A boy's apparent consent is shaped differently. Harmful ideas about masculinity teach boys that they are supposed to want sex. Their agreement is often assumed before they even speak.

When an adult — including an adult woman — initiates sexual activity with a boy, people often describe it as an achievement or a sign that he has become a man. The boy may come to believe that story himself. The alternative is being labelled weak.

Boys also experience grooming through gifts, attention and emotional manipulation. They are taught to obey relatives, teachers, coaches and religious leaders because that is what children are expected to do.

A boy who cooperates with, or even returns to, an abuser is demonstrating vulnerability shaped by how he was raised. He is not making a free choice.

A court that interprets a boy's behaviour as consent makes the same mistake as a court that mistakes a girl's vulnerability for consent.

Why the ‘yes’ is not genuine

The United Nations Committee on the Rights of the Child addressed this issue in General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence. It confirms that a child may understand what sex is and still lack the capacity to consent to it.

Understanding an act and genuinely agreeing to it are two different things.

Real capacity also requires an appreciation of the consequences.

Here, brain science matters. Laurence Steinberg, in his 2008 article, A Social Neuroscience Perspective on Adolescent Risk-Taking, published in Developmental Review, explains that the teenage brain develops in two stages: the part that seeks rewards matures earlier, while the part responsible for weighing long-term consequences develops years later.

This means that adolescents — girls and boys alike — are more inclined to seek acceptance, affection or material benefit in the present. The long-term consequences of early sexual activity, such as pregnancy, infection or disruption to education, often seem distant.

A decision made under emotional dependence by a mind not yet fully developed to weigh future consequences is not the free and informed choice that genuine consent requires.

The wrong test and the right one

The test that courts often apply focuses on behaviour and age. Did the child outwardly agree? How close was the child to the legal age of consent?

Both measures deserve careful scrutiny.

Outward agreement may result from fear, need or grooming. It should never stand alone.

Instead, courts should ask a different question: Were the four essential elements of genuine consent present?

These are real capacity, including an understanding of the consequences; genuine freedom from pressure and dependency; the real ability to say no; and genuine equality of power between the parties.

Canada provides a useful example. The Criminal Code of Canada removes the close-in-age defence where the older person occupies a position of trust or authority over the child, or where the child depends on that person.

Zimbabwe should consider adopting a similar approach.

Conclusion

A child's vulnerability does not disappear simply because the child appears willing. Nor does vulnerability distinguish between girls and boys.

Girls may be exploited through need. Boys may be conditioned to accept authority and harmful ideas about masculinity.

In both cases, what appears to be consent may simply be a child's response to forces beyond their control.

Courts must stop asking, "Did the child say yes?" and instead ask, "Could this child genuinely choose?"

Until courts look beyond a child's apparent agreement and examine whether genuine choice ever existed, the law risks confusing compliance with consent — and leaving vulnerable children without the protection they deserve.