May 7, 2008

From the desk of Wayne Allyn Root:

Anarchism, Age of Consent Laws and the Dallas Accord

By Wayne Allyn Root, Candidate for the Libertarian Party Presidential Nomination 


Recently a controversy has arisen over statements Mary Ruwart made in her book Short Answers to the Tough Questions regarding the rights children possess.  The most salient quote on this subject is found on page 43 in her book:
 
Children who willingly participate in sexual acts have the right to make that decision as well, even if it’s distasteful to us personally.  Some children will make poor choices just as some adults do in smoking and drinking to excess; this is part of life.
 
And when given an opportunity to clarify her beliefs, Ms. Ruwart recently made it clear that she continues to be opposed to all age-of-consent laws, even in the case of pre-pubescent children.  In a May 1, 2008 prepared statement posted on her website she states:
 
Dr. Ruwart did not elaborate on how predators would be prosecuted without legislation specifying age of consent. In other discussion, she explained to delegates that courts were likely to consider that pre-pubescent children had been coerced, since desire would be absent. The burden of proof would be on the pornography producer or older sex partner to show that coercion, e.g. rape, had not occurred.
 
One presumes that Ms. Ruwart is referring to a system of private courts in her quote, since she opposes having courts run by the state.
 
Ms. Ruwart readily admits to being an anarchist, and her beliefs lead her to take a position that is at odds with the vast majority of Americans, as well as with most members of the Libertarian Party.
 
Before I demonstrate with logic the fallacy of this position, bear with me for a moment while I speak from the heart.
 
I readily admit my beliefs are colored by my being the father of four young children, whom I love more than life itself.  The nature of who I am and the underlying foundation of what I believe drives me to protect and nurture my children. As a parent, when I read Ms. Ruwart's statements on child porn and the removal of all laws to protect the most innocent and helpless among us, I had a visceral reaction.  I became physically ill.  And I can guarantee you that my feelings on this topic are not unusual.  I am certain that just about every other decent, caring parent in America would have the same gut-level reaction upon hearing this controversy.  
 
From a purely emotional standpoint, which is the level at which most Americans make their voting decisions, having our party of freedom perceived as providing moral sanctuary to those who either produce child pornography or engage in adult-child sexual relationships is wrong and abhorrent.  It is also the very definition of political suicide.   
 
Of course, I realize that emotions alone are not the basis for public policy and Libertarian Party positions should not be based merely on popular sentiment.  The purpose of this paper is to lay out the logical case for why age-of-consent laws are perfectly compatible with a libertarian society.
 
At the very core of libertarianism is the belief that individuals have the right to enter into voluntary agreements with others.  It is not the role of government to interfere with voluntary agreements.  It is the role of limited government in a free society to enforce those agreements.
 
And in the absence of a voluntary agreement, it is the role of government to unwind such an agreement (if possible), require that restitution be provided to the wronged party (when appropriate) and, in some cases, punish the wrong doer.
 
So, what makes an agreement voluntary?
 
For one, it requires a meeting of the minds.  One person makes an offer; the other person accepts the offer.  Each party needs to comprehend what is being offered by the other.  In cases where one or both parties do not understand the consideration being offered, there has been either a mistake or possibly fraud.
 
If I offer to sell you a high-end name-brand watch for $1,000 and you accept such an offer, we have both improved our lives from this transaction because of our different subjective values.  If I unknowingly sold you a counterfeit watch, you could rescind the agreement.  If I knowingly sold you a counterfeit watch, I have engaged in fraud and should be required to void the agreement, return your money, pay any civil damages awarded and possibly be punished as well.
 
For there to be a meeting of the minds, both parties need to have sufficient mental capacity to understand the nature and consequences of the transaction.
 
If your elderly parent suffers from dementia brought about by Alzheimer’s disease and he sells his $500,000 home for $1, the buyer’s participation in such a transaction is tantamount to defrauding the seller – and in a libertarian society it is a proper role of government to make and enforce laws against fraud.  To protect those who are mentally incompetent, a court may even go so far as to appoint a guardian or conservator to care for the person’s estate.
 
While not every person as they age becomes incompetent, all individuals start out their lives in such a state.  We begin life without the ability to reason and start out dependent on others for our safety and welfare.  As we mature, our mental capacity improves and we slowly gain the ability to make competent decisions.  No method is available today in the realm of science that enables us to objectively judge that an individual has become competent enough to consent to life-changing decisions.  Until that day comes, we have little choice but to create a legal framework as a substitute. 
 
Minors are allowed to enter into agreements with adults, but with some exceptions these agreements are voidable at the option of the minor.  Exercising this power of avoidance is commonly referred to as “disaffirming” the contract.
 
The ability to disaffirm a contract provides enormous protection to minors who may otherwise be bound to uphold agreements detrimental to their well-being.  The law protects minors from their immaturity, their inexperience and their tendency to engage in impulsive actions.  Rational individuals understand that young minors do not understand the nature and consequences of contracts they enter into and that they are especially vulnerable to being the victims of unscrupulous adults.  To allow otherwise is to give adults a license to defraud children.
 
So, how does this all relate to age-of-consent laws?
 
There are entire categories of activity where the ability to disaffirm an agreement is not a sufficient remedy to protect the welfare of children against adults who would act as predators toward them.
 
This is where age-of-consent laws become relevant – with laws prohibiting sex between adults and young children serving as a prime example.
 
Young children will do most anything to please adults they trust because it is a hard-wired survival mechanism.  A young child does not understand the life-long consequences of sex – pregnancy, sexually transmitted diseases and the emotional damage this can bring about.
 
The enforcement of laws prohibiting adults from engaging in sex with children, facilitating underage drinking and drug use, and producing child pornography all act as disincentives against those considering the commission of such crimes.  It is this deterrent that protects children against risks to their health, welfare and reputations – risks children cannot fully comprehend, especially when unscrupulous adult authority figures are manipulating the situation.
 
Now, reasonable people can argue as to where the line should be drawn. 
 
For some activities, setting the age of legal consent to, say, seventeen rather than eighteen might be very appropriate.  There are laws on the books where parents can give permission for an older child to engage in an activity (e.g. getting married), because it is assumed that for children above a certain age, parents are in the best position to judge the maturity of their children and have a keen interest in promoting their children’s best interests.  And there are some statutes in place allowing for judicial emancipation of minors, when an exceptional minor can clearly demonstrate his or her ability to make decisions with the same understanding as an adult. 
 
And fully informed juries should always have the option of deciding whether a law should be applied in a case where its enforcement would cause some grave injustice.
 
But for one to advocate for the complete elimination of age-of-consent laws goes beyond rational thought.
 
The overwhelming majority of Americans, and the overwhelming majority of Libertarian Party members, understand the need for these laws.  Consider the following situations where "consent" was given.
 
     •     Imagine a priest or minister molesting a six year old boy who consents to this religious father-figure's authority after being told "God approves."
     •     Imagine a twelve year old girl who consents to sex for the promise of money and a ride in a pimp's fancy car.
     •     Imagine a father or uncle molesting a daughter or niece, who consents after being told this is a natural and normal relationship.
     •     Imagine an obviously drunk sixteen year old girl who consents to sex with six adult men who know she is inebriated.


In each of these cases, I sincerely believe, and my sense is that most libertarians would agree, that these are crimes deserving of state prosecution against the adult perpetrators. 
 
I’m sure that Ms. Ruwart will state she would never endorse such heinous acts – and I’m certain that is actually the case.  And I’m sure that she and I would agree that in a free society, parents often serve as the first line of defense against those who would act as predators against children.
 
But if she is going to remain consistent with her anarchist beliefs, Ms. Ruwart would have little choice but to conclude that the government should have no role in countering those who would engage in fraud, including those adults who would prey upon and effectively defraud minors due to their lack of maturity and experience.  
 
Moreover, in Ruwart's utopia of private courts, only the victim (not the state) could press charges.  Children would often be too ignorant, frightened or intimidated to press charges against the authority figures violating them.
 
People form governments to protect the majority against a small criminal minority.  In a "perfect world" loving, caring parents would always be the perfect guardians.  But we do not live in a utopia.  Unfortunately, many criminals also have children of their own.  And these innocent children are often abused by criminal parents.  In the real world that we live in, some parents either fail to protect their children, or are the predators and child abusers themselves.
 
Anarchists may be fellow travelers with us libertarians in the sense that they want to cooperate with our efforts to dramatically reduce the size of government, but where we part company is in their desire to eliminate the state altogether.
 
When our party adopted its first platform in Denver in 1972 it was clear that we supported a limited government.  But that changed in 1974 when anarchists lead by Murray Rothbard entered the picture at the Dallas convention.  At the 1974 Libertarian convention in Dallas, libertarians and anarchists struck an informal agreement known as the Dallas Accord. 
 
According to anarchist Carl Watner, in the Dallas Accord of 1974 the anarchists were asked to overlook their differences with the Libertarian Party and basically put off any debate they may have as to whether the ultimate goal should be less government or “no” government.  In this agreement, anarchists agreed that as a political party the topic of anarchism would not even be on the table for discussion until we have achieved a limited government, libertarian country.
 
Whether your philosophical position is closer to Ms. Ruwart’s vision of anarchy or my position of limited government, ask yourself this practical question:
 
No matter how one might attempt to present the position, do you believe we will grow the Libertarian Party, or damage it, by promoting the removal of age-of-consent laws or any other laws that the vast majority of Americans believe protect innocent children from adults who would sexually exploit them?


Wayne Allyn Root is a Libertarian Presidential candidate. For more about Wayne and his stands on important political issues, go to: www.ROOTforAmerica.com

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