Debate Guide: Legal pragmatism

Comparing present Age of Consent laws to hypothetical alternatives is ultimately a process of comparing the relative importance of various subjective claims, and then deciding what (if any) alternative might be feasible, or cost-effective.

Here, so-called "legal pragmatism" refers to an argument that concedes the possibility of consensual crime and unjust convictions, but remains in favor of maintaining Age of Consent laws above 16 or 18.

A legal age provides a fine line in the sand, where society needs it. In court, objective, simple legislation cuts out the need for subjective interpretations, which can be easily manipulated by defense lawyers. A few unsafe, or unfair convictions are no loss, when it allows us to show zero tolerance to the predators.

A number of issues come to mind, all having a bearing on the viability of this argument:

• How common are predatory relationships, really? Research may help us here, and would tend to suggest that we need a far more sensitive legal tool for separating abuse of minors from voluntary relations. Arguments such as the proponent's tend to be based on lazy, chauvinistic, moralistic generational assumptions about "consensual crime", such as believing male-student relationships with female teachers are invariably the "only exceptions to the rule". Ultimately, lived experience is subjective, and thus objective legal criteria such as age and presumed authority can only be used to judge lived experiences inefficiently when compared to subjective criteria.
• What ethical system are we using? Negative utilitarianism (prioritizing the reduction of harms/suffering) is usually applied in defense of consent laws. Yet the same ethical system may well contradict our proponent's argument, as he is causing considerable suffering for what he believes to be a "greater good" of harm-reduction. Under a negative utilitarian model, do the collateral harms caused by a broad-sweeping and punitive legal scheme have adequate offsets in that suffering among abuse victims is reduced, above and beyond laws that entertain the possibility of consensual relations?

• Further, are we not bringing about unseen harms, by establishing a causal loop in which puritanical attitudes bring about the same results puritanical laws seek to avoid? Research appears to suggest that self-perception, shame and stigma are very strongly associated with psychological harms.

See also

• Debate Guide: Problems with the Age of Consent