Sexual Morality and the Law
Encyclopedia
Sexual Morality and the Law is the transcription of a 1978 radio conversation in Paris
between philosopher Michel Foucault
, playwright/actor/lawyer Jean Danet
, and novelist/gay activist Guy Hocquenghem
, debating the idea of abolishing age of consent laws
in France.
In 1977, the issue was brought to public attention in France by a petition against age of consent laws
addressed to the Parliament, defending the decriminalization of all consented sexual relations between adults and minor
s below the age of fifteen (the age of consent
in France ). Foucault stated that the petition was signed by several philosophers including Foucault, Jacques Derrida
and Louis Althusser
, pediatrician and psychoanalyst Françoise Dolto
, and also by people Foucault described as belonging to a wide range of political positions.
The dialogue was broadcast on April 4, 1978 by radio France Culture
. It was originally published in French as La loi de la pudeur [literally, "The law of decency"] and reprinted in English as The Danger of Child Sexuality. The text was later included under the title Sexual Morality and the Law in Foucault’s book Politics, Philosophy, Culture – Interviews and other writings, 1977-1984.
of the category of the "perverts
".
Foucault points out that the French Penal Code of 1810 comprises 485 articles defining crimes, offenses, and misdemeanors as well as the resulting punishments. It was promulgated on February 12, 1810, and did not regulate the sexual behaviors, "as if sexuality was not the business of the law". He explains that legislation on sexuality during the 19th century and specially in the 20th century, at the time of Pétain
and of the "Mirguet amendment" (1960). The Mirguet amendment of July 18, 1960, increased the penalties for "public insult against decency" between same sex couples. It has changed article 38 of the 1958 French constitution.
Foucault, Hocquenghem and Danet denounce the increasing psychiatrization of society and the introduction of a social control
over sexuality. Foucault had already outlined this analysis of what he calls the "device of sexuality" in his work The Will to Knowledge (1976). "All the legislation on sexuality", affirms Foucault, "introduced since the 19th century in France, is a set of laws on decency", which appears impossible to define, becoming thus a flexible tool politically used in several local tactics. Foucault stressed that:
Danet affirms that "what takes place with the intervention of psychiatrists in court is a manipulation of the children's consent, a manipulation of their words".
Using among other things the example of the movement of protest, in Germany, at the end of the 19th century, against article 175 of the German Penal Code which criminalized any homosexual act, Danet considers that the psychiatrists "expected only one thing from the abolition of this law, namely, to be able to take over the 'perverts' " [as homosexuals were regarded at that time] "for themselves and to treat them with all the knowledge that they claimed to have acquired since around 1860" (Danet cites then Morel
and his Treaty of degenerescence, published in 1857).
" or “pervert” – and instead of punishing the act, we criminalize a person or a category of the population.
Hocquenghem sustains that “a whole mixture of notions” is responsible for the fabrication of the idea of the crime against decency
, ranging from religious prohibition
s concerning sodomy
to the separation between the world of the child
and the world of the adult
.
He observes that this was possible due to the creation of a category of people regarded as “perverts”, “legal monsters” whose aim in life would be to practice sex with children. They would then really become intolerable perverts since the crime as such is recognized, and reinforced by a psychological and sociological arsenal.
Hahn – who coordinated the debate – remembers then that this idea leads us to the concept of the “born criminal”, present in the work of Italian controversial criminologist Cesare Lombroso
: “Indeed this idea that legislation, the legal system, the penal system, even medicine must concern themselves essentially with dangers, with dangerous individuals rather than acts, dates more or less from Lombroso and so it is not at all surprising if one finds Lombroso's ideas coming back into fashion”, he said.
Hocquenghem considered the construction of this new type of criminal – an individual perverse enough “to do a thing that hitherto had always been done without anybody thinking it right to stick his nose into it” - as “an extremely grave step from a political point of view”:
Hocquenghem concludes that the crime feeds upon itself in a man-hunt, by the identification and isolation of the category of individuals regarded as pedophiles, and the call for a lynching
sent out by the “gutter press
”.
Jean Danet adds that this crime without violence can be used by the state for political reasons, against “inconvenient” individuals: “Incitement of a minor to commit an immoral act, for example, can be used against social workers and teachers. (…) In 1976 in Nantes, a teacher was tried for inciting minors to immoral acts, when in fact what he had done was to supply contraceptives to the boys and girls in his charge”.
Danet predicted that a new form of social control would replace the legal one, had their proposal to reform the law been approved. “If it has been possible to believe for a time that there was to be a withdrawal of legislation, it was not because we thought that we were living in a liberal period but because we knew that more subtle forms of sexual supervision would be set up - and perhaps the apparent freedom that camouflaged these more subtle, more diffuse social controls was going to extend beyond the field of the juridical and the penal”.
. He predicted that a society of dangers would come:
He identified the fear of others’ sexuality as the reason for this change:
Foucault foresaw a new regime for the supervision of sexuality, with the intervention of legal institutions and the support of medical institutions. He completed: “I would say that the danger lay there”. In his book Discipline and Punish
(1975), he had already detailed his ideas against an increasing social control over the behavior of the individual.
to intervene twice: first to say that, indeed, children do have a sexuality, and second to establish that child sexuality is a territory with its own geography, that the adult must not enter.
Jean Danet added that some psychiatrists consider that sexual relations between children and adults “are always traumatizing
”, that the child “is marked forever”, will become emotionally disturbed and if a child doesn’t remember them, it’s because they remain in his or her subconscious
.
He ponders that the intervention of psychiatrists in court
is a manipulation of the children’s consent
, of their words.
Foucault remarks with irony
the position of specialists:
He concludes that it is within this new legislative framework – “basically intended to protect certain vulnerable sections of the population with the establishment of a new medical power” – that a conception of sexuality and of the relations between child and adult sexuality will be based, and considers it as “extremely questionable”.
”.
Danet pointed out that, just as lawyers defending terrorists
(as happened in the Croissant affair
), lawyer
s defending someone found guilt
y of an indecent act with a minor
, referring anyone below the age of consent (15 in France), have serious problems, and are suspect of being themselves favorable to such acts. Many, he said, avoid doing so, and prefer being appointed by the court. He said that “anyone who defends a pedophile may be suspected of having some sympathy for that cause. Even judge
s think to themselves: if he defends them, it’s because he isn’t really as much against it himself”.
He argued that “just because one is involved in a struggle against some authority, (…) this does not mean one is on the side of those who are subjected to it”. Two examples are given, dating back to the 19th and early 20th centuries: in France
, an open letter signed by psychologists
, sexologists
and psychiatrists
, asking for the decriminalization of immoral acts with minors between the ages of 15 and 18, and in Germany
where a whole movement (made up of homosexuals
and members of the medical community) protested against a law that criminalized
homosexual acts.
is polemic
– often raising emotional responses and leaving intellectual
s in a defensive position, in 1977-1978 Foucault, Hocquenghem and Danet admitted openly and with naturalness the idea of a non-abusive pedophilia. The 1977 petition refers to all ages below the age of consent
in France (fifteen), including the ages before puberty
. The biological definition of pedophilia is recognized by the United Nations
and accepted in the Francophone
world.
Both Foucault and Hocquenghem agreed that consent is a contractual notion. ‘This notion of consent is a trap, in any case. What is sure is that the legal form of an intersexual consent is nonsense. No one signs a contract before making love’, said Hocquenghem.
The journalist Pierre Hahn asks twice about how to determine an age for consent: "Public opinion, including enlightened opinion such as that of the doctors of the Institute of Sexology (L'Institut de Sexologie), asked at what age there can be said to be definite consent. It's a big problem. (…) If you were a legislator, you would fix no limit and you would leave it to the judges to decide whether or not an indecent act was committed with or without consent? Is that your position?". Foucault answers that "it is difficult to lay down barriers", and that this wouldn’t make any sense. He added that he discussed the subject with a judge who told him that there are eighteen-year-old girls who are practically forced to have sex with their fathers or stepfathers: “They may be eighteen, but it’s an intolerable system of constraint”, he said.
As for the legal aspect, the lawyer Jean Danet observed that violence is legally presumed
, even "in a case in which the charge used is that of indecent act without violence". This happens because the legislator believed that "it has to be said that this act without violence [defined as a crime] is the repressive, legal translation of consenting pleasure". Danet completed that "It's pretty clear how the system of proof is manipulated in opposite ways in the case of rape of women and in the case of indecent assault on a minor."
On the other side, Danet acknowledged that sometimes consent may not be present. “We are not, of course, saying that consent is always there”.
He pointed out that they were very careful in the text of the petition, so as to separate rape
from acts without violence:
He observed then that the problem of (violent) rape arouses reactions at the level of public opinion
, triggering off secondary effects of man-hunting
, lynching
and moral mobilization
.
of children in court, Foucault begins pointing out that officially children are supposed to have a sexuality
that can never be directed towards an adult, and are also supposed of not being capable of talking about themselves in a sufficiently lucid way. Secondly, he argues that the speech of the child is reliable in order to establish what happened, once there is sympathy enough. He said:
He vehemently opposed any doubt on the child’s ability to speak about the facts: “To assume that a child is incapable of explaining what happened and was incapable of giving his consent are two abuse
s that are intolerable, quite unacceptable. (…) The child may be trusted
to say whether or not he was subjected to violence”.
Hocquenghem observed that the trial
ceremony constrains the child: “The public affirmation of consent to such acts is extremely difficult, as we know. Everybody - judges, doctors, the defendant - knows that the child was consenting - but nobody says anything, because, apart from anything else, there's no way it can be introduced”.
He stressed that it is impossible to express a complete relationship
between an adult and a child, a relationship involving all kinds of affective contacts and going through all kinds of stages (which are not all exclusively sexual), solely in terms of consent, and that to express it in terms of legal consent is an absurdity:
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...
between philosopher Michel Foucault
Michel Foucault
Michel Foucault , born Paul-Michel Foucault , was a French philosopher, social theorist and historian of ideas...
, playwright/actor/lawyer Jean Danet
Jean Danet
Jean Danet , was a French actor, activist, and gay theorist. He appeared in 27 films between 1942 and 1983....
, and novelist/gay activist Guy Hocquenghem
Guy Hocquenghem
Guy Hocquenghem was a French writer and queer theorist.-Biography:Guy Hocquenghem was born in the suburbs of Paris and was educated at the Lycée Lakanal in Sceaux and the Ecole Normale Supérieure in Paris. At the age of fifteen he began an affair with his high school philosophy teacher, René...
, debating the idea of abolishing age of consent laws
Age of consent reform
Age of consent reform refers to efforts to change age of consent laws, whether to raise or lower or abolish the age of consent, or to change the ways in which the laws are applied. Another issue has been homosexual vs...
in France.
In 1977, the issue was brought to public attention in France by a petition against age of consent laws
French petitions against age of consent laws
In 1977, a French petition against age of consent laws was addressed to the parliament calling for the abrogation of several articles of the age-of-consent law and the decriminalization of all consensual relations between adults and minors below the age of fifteen...
addressed to the Parliament, defending the decriminalization of all consented sexual relations between adults and minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
s below the age of fifteen (the age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
in France ). Foucault stated that the petition was signed by several philosophers including Foucault, Jacques Derrida
Jacques Derrida
Jacques Derrida was a French philosopher, born in French Algeria. He developed the critical theory known as deconstruction and his work has been labeled as post-structuralism and associated with postmodern philosophy...
and Louis Althusser
Louis Althusser
Louis Pierre Althusser was a French Marxist philosopher. He was born in Algeria and studied at the École Normale Supérieure in Paris, where he eventually became Professor of Philosophy....
, pediatrician and psychoanalyst Françoise Dolto
Françoise Dolto
Françoise Dolto , was a French doctor and psychoanalyst, famous for her research on babies and childhood. Dolto revolutionized the field of psycho-therapeutic work with babies and with the mother baby dyad....
, and also by people Foucault described as belonging to a wide range of political positions.
The dialogue was broadcast on April 4, 1978 by radio France Culture
France Culture
France Culture is a French public radio channel and part of Radio France. Its programming encompasses a wide variety of features on historical, philosophical, sociopolitical, and scientific themes , as well as literary readings, radio plays, and experimental productions...
. It was originally published in French as La loi de la pudeur [literally, "The law of decency"] and reprinted in English as The Danger of Child Sexuality. The text was later included under the title Sexual Morality and the Law in Foucault’s book Politics, Philosophy, Culture – Interviews and other writings, 1977-1984.
Introduction
Foucault and Hocquenghem focus, in the first place, on the penalization of the "sexual offences", at the time of the 19th century, and on the invention by the then incipient PsychiatryPsychiatry
Psychiatry is the medical specialty devoted to the study and treatment of mental disorders. These mental disorders include various affective, behavioural, cognitive and perceptual abnormalities...
of the category of the "perverts
Perversion
Perversion is a concept describing those types of human behavior that are a serious deviation from what is considered to be orthodox or normal. Although it can refer to varying forms of deviation, it is most often used to describe sexual behaviors that are seen by an individual as abnormal,...
".
Foucault points out that the French Penal Code of 1810 comprises 485 articles defining crimes, offenses, and misdemeanors as well as the resulting punishments. It was promulgated on February 12, 1810, and did not regulate the sexual behaviors, "as if sexuality was not the business of the law". He explains that legislation on sexuality during the 19th century and specially in the 20th century, at the time of Pétain
Philippe Pétain
Henri Philippe Benoni Omer Joseph Pétain , generally known as Philippe Pétain or Marshal Pétain , was a French general who reached the distinction of Marshal of France, and was later Chief of State of Vichy France , from 1940 to 1944...
and of the "Mirguet amendment" (1960). The Mirguet amendment of July 18, 1960, increased the penalties for "public insult against decency" between same sex couples. It has changed article 38 of the 1958 French constitution.
Foucault, Hocquenghem and Danet denounce the increasing psychiatrization of society and the introduction of a social control
Social control
Social control refers generally to societal and political mechanisms or processes that regulate individual and group behavior, leading to conformity and compliance to the rules of a given society, state, or social group. Many mechanisms of social control are cross-cultural, if only in the control...
over sexuality. Foucault had already outlined this analysis of what he calls the "device of sexuality" in his work The Will to Knowledge (1976). "All the legislation on sexuality", affirms Foucault, "introduced since the 19th century in France, is a set of laws on decency", which appears impossible to define, becoming thus a flexible tool politically used in several local tactics. Foucault stressed that:
- "What is emerging is a new penal system, a new legislative system whose function is not so much to punish offenses against these general laws concerning decency, as to protect populations and parts of populations regarded as particularly vulnerable" (for example children). "Therefore, there would be on one side the fragile population, and on the other side the "dangerous population" " (the adult in general).
Danet affirms that "what takes place with the intervention of psychiatrists in court is a manipulation of the children's consent, a manipulation of their words".
Using among other things the example of the movement of protest, in Germany, at the end of the 19th century, against article 175 of the German Penal Code which criminalized any homosexual act, Danet considers that the psychiatrists "expected only one thing from the abolition of this law, namely, to be able to take over the 'perverts' " [as homosexuals were regarded at that time] "for themselves and to treat them with all the knowledge that they claimed to have acquired since around 1860" (Danet cites then Morel
Bénédict Morel
Bénédict Augustin Morel , was a French physician born in Vienna, Austria. He was an influential figure in the field of psychiatry during the mid-19th century....
and his Treaty of degenerescence, published in 1857).
The fabrication of a crime
Foucault observes that whereas the law formerly condemned the infringement, the act of breaking the law, we enter from now on in a disciplinary society which condemns the criminal himself – called "delinquentDelinquent
Delinquent or delinquents may refer to:* Law** A person who commits a misdemeanor** A person who commits a felony** A juvenile delinquent, often shortened as delinquent is a young person who fails to do that which is required by law; see juvenile delinquency* A person who fails to pay a debt or...
" or “pervert” – and instead of punishing the act, we criminalize a person or a category of the population.
Hocquenghem sustains that “a whole mixture of notions” is responsible for the fabrication of the idea of the crime against decency
Decency
Decency is the quality or state of conforming to social or moral standards of taste and propriety.-See also:*Taste *Communications Decency Act*Public indecency*Indecent exposure*Sodomy law*Norm *Grotesque body...
, ranging from religious prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...
s concerning sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
to the separation between the world of the child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
and the world of the adult
Adult
An adult is a human being or living organism that is of relatively mature age, typically associated with sexual maturity and the attainment of reproductive age....
.
He observes that this was possible due to the creation of a category of people regarded as “perverts”, “legal monsters” whose aim in life would be to practice sex with children. They would then really become intolerable perverts since the crime as such is recognized, and reinforced by a psychological and sociological arsenal.
Hahn – who coordinated the debate – remembers then that this idea leads us to the concept of the “born criminal”, present in the work of Italian controversial criminologist Cesare Lombroso
Cesare Lombroso
Cesare Lombroso, born Ezechia Marco Lombroso was an Italian criminologist and founder of the Italian School of Positivist Criminology. Lombroso rejected the established Classical School, which held that crime was a characteristic trait of human nature...
: “Indeed this idea that legislation, the legal system, the penal system, even medicine must concern themselves essentially with dangers, with dangerous individuals rather than acts, dates more or less from Lombroso and so it is not at all surprising if one finds Lombroso's ideas coming back into fashion”, he said.
Hocquenghem considered the construction of this new type of criminal – an individual perverse enough “to do a thing that hitherto had always been done without anybody thinking it right to stick his nose into it” - as “an extremely grave step from a political point of view”:
- "In the case of "attentat sans violence" [attack without violence], the offence in which the police have been unable to find anything, nothing at all, in that case, the criminal is simply a criminal because he is a criminal, because he has those tastes. It is what used to be called a crime of opinion. (…) The crime vanishes, nobody is concerned any longer to know whether in fact a crime was committed or not, whether someone has been hurt or not. No one is even concerned any more whether there actually was a victim."
Hocquenghem concludes that the crime feeds upon itself in a man-hunt, by the identification and isolation of the category of individuals regarded as pedophiles, and the call for a lynching
Lynching
Lynching is an extrajudicial execution carried out by a mob, often by hanging, but also by burning at the stake or shooting, in order to punish an alleged transgressor, or to intimidate, control, or otherwise manipulate a population of people. It is related to other means of social control that...
sent out by the “gutter press
Sensationalism
Sensationalism is a type of editorial bias in mass media in which events and topics in news stories and pieces are over-hyped to increase viewership or readership numbers...
”.
Jean Danet adds that this crime without violence can be used by the state for political reasons, against “inconvenient” individuals: “Incitement of a minor to commit an immoral act, for example, can be used against social workers and teachers. (…) In 1976 in Nantes, a teacher was tried for inciting minors to immoral acts, when in fact what he had done was to supply contraceptives to the boys and girls in his charge”.
Danet predicted that a new form of social control would replace the legal one, had their proposal to reform the law been approved. “If it has been possible to believe for a time that there was to be a withdrawal of legislation, it was not because we thought that we were living in a liberal period but because we knew that more subtle forms of sexual supervision would be set up - and perhaps the apparent freedom that camouflaged these more subtle, more diffuse social controls was going to extend beyond the field of the juridical and the penal”.
A society of dangers
Foucault sees the emergence of a new penal system, with the focus changing from criminal acts to the definition of dangerous individualsSexual predator
The term sexual predator is used pejoratively to describe a person seen as obtaining or trying to obtain sexual contact with another person in a metaphorically "predatory" manner. Analogous to how a predator hunts down its prey, so the sexual predator is thought to "hunt" for his or her sex partners...
. He predicted that a society of dangers would come:
- "We’re going to have a society of dangers, with, on the one side, those who are in danger, and on the other, those who are dangerous. (…) SexualityHuman sexualityHuman sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...
will become a threat in all social relations, in all relations between members of different age groups, in all relations between individuals. And sexuality will no longer be a kind of behaviorBehaviorBehavior or behaviour refers to the actions and mannerisms made by organisms, systems, or artificial entities in conjunction with its environment, which includes the other systems or organisms around as well as the physical environment...
hedged in by precise prohibitions, but a kind of roaming danger, a sort of omnipresent phantom, a phantom that will be played out between men and women, children and adults, and possibly between adults themselves. It is on this shadow, this phantom, this fear that the authorities would try to get a grip through an apparently generous and, at least general, legislation and through a series of particular interventions that would probably be made by the legal institutions, with the support of the medical institutions."
He identified the fear of others’ sexuality as the reason for this change:
- "The legislatorLegislatorA legislator is a person who writes and passes laws, especially someone who is a member of a legislature. Legislators are usually politicians and are often elected by the people...
will not justify the measures that he is proposing by saying: the universal decency of mankind must be defended. What he will say is: there are people for whom others' sexuality may become a permanent danger".
Foucault foresaw a new regime for the supervision of sexuality, with the intervention of legal institutions and the support of medical institutions. He completed: “I would say that the danger lay there”. In his book Discipline and Punish
Discipline and Punish
Discipline and Punish: The Birth of the Prison is a book by philosopher Michel Foucault. Originally published in 1975 in France under the title Surveiller et punir: Naissance de la Prison, it was translated into English in 1977. It is an interrogation of the social and theoretical mechanisms behind...
(1975), he had already detailed his ideas against an increasing social control over the behavior of the individual.
The establishment of a new medical power
Foucault stressed that with this focus change to the individual, legislation appeals now to medical knowledge, giving the chance to psychiatristsPsychiatry
Psychiatry is the medical specialty devoted to the study and treatment of mental disorders. These mental disorders include various affective, behavioural, cognitive and perceptual abnormalities...
to intervene twice: first to say that, indeed, children do have a sexuality, and second to establish that child sexuality is a territory with its own geography, that the adult must not enter.
Jean Danet added that some psychiatrists consider that sexual relations between children and adults “are always traumatizing
Psychological trauma
Psychological trauma is a type of damage to the psyche that occurs as a result of a traumatic event...
”, that the child “is marked forever”, will become emotionally disturbed and if a child doesn’t remember them, it’s because they remain in his or her subconscious
Subconscious
The term subconscious is used in many different contexts and has no single or precise definition. This greatly limits its significance as a definition-bearing concept, and in consequence the word tends to be avoided in academic and scientific settings....
.
He ponders that the intervention of psychiatrists in court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
is a manipulation of the children’s consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
, of their words.
Foucault remarks with irony
Irony
Irony is a rhetorical device, literary technique, or situation in which there is a sharp incongruity or discordance that goes beyond the simple and evident intention of words or actions...
the position of specialists:
- “It could be that the child, with his own sexuality, may have desired that adult, he may even have consented, he may even have made the first moves. We may even agree that it was he who seducedSeductionIn social science, seduction is the process of deliberately enticing a person to engage. The word seduction stems from Latin and means literally "to lead astray". As a result, the term may have a positive or negative connotation...
the adult. But we specialists with our psychological knowledge know perfectly well that even the seducing child runs a risk, of being damaged and traumatized. (…) Consequently, the child must be ‘protected from his own desires’, even when his desires turn him towards an adult”.
He concludes that it is within this new legislative framework – “basically intended to protect certain vulnerable sections of the population with the establishment of a new medical power” – that a conception of sexuality and of the relations between child and adult sexuality will be based, and considers it as “extremely questionable”.
Guilt by association
Hocquenghem observed that this 1977 French petition has been signed by a lot of people “who are suspect neither of being particularly pedophiles themselves nor even of entertaining extravagant political viewsExtremism
Extremism is any ideology or political act far outside the perceived political center of a society; or otherwise claimed to violate common moral standards...
”.
Danet pointed out that, just as lawyers defending terrorists
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
(as happened in the Croissant affair
Klaus Croissant
Klaus Croissant was a lawyer of the Red Army Faction, an East German spy and a political activist for Berlin's Alternative Liste and after 1990 the PDS....
), lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s defending someone found guilt
Guilt
Guilt is the state of being responsible for the commission of an offense. It is also a cognitive or an emotional experience that occurs when a person realizes or believes—accurately or not—that he or she has violated a moral standard, and bears significant responsibility for that...
y of an indecent act with a minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
, referring anyone below the age of consent (15 in France), have serious problems, and are suspect of being themselves favorable to such acts. Many, he said, avoid doing so, and prefer being appointed by the court. He said that “anyone who defends a pedophile may be suspected of having some sympathy for that cause. Even judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s think to themselves: if he defends them, it’s because he isn’t really as much against it himself”.
He argued that “just because one is involved in a struggle against some authority, (…) this does not mean one is on the side of those who are subjected to it”. Two examples are given, dating back to the 19th and early 20th centuries: in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, an open letter signed by psychologists
Psychology
Psychology is the study of the mind and behavior. Its immediate goal is to understand individuals and groups by both establishing general principles and researching specific cases. For many, the ultimate goal of psychology is to benefit society...
, sexologists
Sexology
Sexology is the scientific study of human sexuality, including human sexual interests, behavior, and function. The term does not generally refer to the non-scientific study of sex, such as political analysis or social criticism....
and psychiatrists
Psychiatry
Psychiatry is the medical specialty devoted to the study and treatment of mental disorders. These mental disorders include various affective, behavioural, cognitive and perceptual abnormalities...
, asking for the decriminalization of immoral acts with minors between the ages of 15 and 18, and in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
where a whole movement (made up of homosexuals
Homosexuality
Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
and members of the medical community) protested against a law that criminalized
Criminalization
Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals". Previously legal acts may be transformed into crimes by legislation or judicial decision...
homosexual acts.
Childhood and the notion of consent
While today the very possibility of consent before pubertyAge of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
is polemic
Polemic
A polemic is a variety of arguments or controversies made against one opinion, doctrine, or person. Other variations of argument are debate and discussion...
– often raising emotional responses and leaving intellectual
Intellectual
An intellectual is a person who uses intelligence and critical or analytical reasoning in either a professional or a personal capacity.- Terminology and endeavours :"Intellectual" can denote four types of persons:...
s in a defensive position, in 1977-1978 Foucault, Hocquenghem and Danet admitted openly and with naturalness the idea of a non-abusive pedophilia. The 1977 petition refers to all ages below the age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
in France (fifteen), including the ages before puberty
Puberty
Puberty is the process of physical changes by which a child's body matures into an adult body capable of reproduction, as initiated by hormonal signals from the brain to the gonads; the ovaries in a girl, the testes in a boy...
. The biological definition of pedophilia is recognized by the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
and accepted in the Francophone
Francophone
The adjective francophone means French-speaking, typically as primary language, whether referring to individuals, groups, or places. Often, the word is used as a noun to describe a natively French-speaking person....
world.
Both Foucault and Hocquenghem agreed that consent is a contractual notion. ‘This notion of consent is a trap, in any case. What is sure is that the legal form of an intersexual consent is nonsense. No one signs a contract before making love’, said Hocquenghem.
- “When we say that children are ‘consenting’ in these cases, all we intend to say is this: in any case, there was no violence, or organized manipulation in order to wrench out of them affective or erotic relations”, he completed.
The journalist Pierre Hahn asks twice about how to determine an age for consent: "Public opinion, including enlightened opinion such as that of the doctors of the Institute of Sexology (L'Institut de Sexologie), asked at what age there can be said to be definite consent. It's a big problem. (…) If you were a legislator, you would fix no limit and you would leave it to the judges to decide whether or not an indecent act was committed with or without consent? Is that your position?". Foucault answers that "it is difficult to lay down barriers", and that this wouldn’t make any sense. He added that he discussed the subject with a judge who told him that there are eighteen-year-old girls who are practically forced to have sex with their fathers or stepfathers: “They may be eighteen, but it’s an intolerable system of constraint”, he said.
As for the legal aspect, the lawyer Jean Danet observed that violence is legally presumed
Conclusive presumption
A conclusive presumption is a type of presumption used in several legal systems.-England and Wales:...
, even "in a case in which the charge used is that of indecent act without violence". This happens because the legislator believed that "it has to be said that this act without violence [defined as a crime] is the repressive, legal translation of consenting pleasure". Danet completed that "It's pretty clear how the system of proof is manipulated in opposite ways in the case of rape of women and in the case of indecent assault on a minor."
On the other side, Danet acknowledged that sometimes consent may not be present. “We are not, of course, saying that consent is always there”.
He pointed out that they were very careful in the text of the petition, so as to separate rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
from acts without violence:
- “We took great care to speak exclusively of an indecent act not involving violenceViolenceViolence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
and incitement of a minor to commit an indecent act. We were extremely careful not to touch, in any way, on the problem of rape, which is totally different.”
He observed then that the problem of (violent) rape arouses reactions at the level of public opinion
Public opinion
Public opinion is the aggregate of individual attitudes or beliefs held by the adult population. Public opinion can also be defined as the complex collection of opinions of many different people and the sum of all their views....
, triggering off secondary effects of man-hunting
Manhunt (law enforcement)
In law enforcement, a manhunt is a search for a dangerous fugitive involving the use of all available police units and technology and sometimes help from the public....
, lynching
Lynching
Lynching is an extrajudicial execution carried out by a mob, often by hanging, but also by burning at the stake or shooting, in order to punish an alleged transgressor, or to intimidate, control, or otherwise manipulate a population of people. It is related to other means of social control that...
and moral mobilization
Moral panic
A moral panic is the intensity of feeling expressed in a population about an issue that appears to threaten the social order. According to Stanley Cohen, author of Folk Devils and Moral Panics and credited creator of the term, a moral panic occurs when "[a] condition, episode, person or group of...
.
The credibility of children in court
As for the credibilityCredibility
Credibility refers to the objective and subjective components of the believability of a source or message.Traditionally, modern, credibility has two key components: trustworthiness and expertise, which both have objective and subjective components. Trustworthiness is based more on subjective...
of children in court, Foucault begins pointing out that officially children are supposed to have a sexuality
Human sexuality
Human sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...
that can never be directed towards an adult, and are also supposed of not being capable of talking about themselves in a sufficiently lucid way. Secondly, he argues that the speech of the child is reliable in order to establish what happened, once there is sympathy enough. He said:
- “After all, listening to a child, hearing him speak, hearing him explain what his relations actually were with someone, adult or not, provided one listens with enough sympathySympathySympathy is a social affinity in which one person stands with another person, closely understanding his or her feelings. Also known as empathic concern, it is the feeling of compassion or concern for another, the wish to see them better off or happier. Although empathy and sympathy are often used...
, must allow one to establish more or less what degree of violence, if any, was used or what degree of consent was given”.
He vehemently opposed any doubt on the child’s ability to speak about the facts: “To assume that a child is incapable of explaining what happened and was incapable of giving his consent are two abuse
Abuse
Abuse is the improper usage or treatment for a bad purpose, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, sexual assault, violation, rape, unjust practices; wrongful practice or custom; offense; crime, or otherwise...
s that are intolerable, quite unacceptable. (…) The child may be trusted
Trust (sociology)
In a social context, trust has several connotations. Definitions of trust typically refer to a situation characterised by the following aspects: One party is willing to rely on the actions of another party ; the situation is directed to the future. In addition, the trustor abandons control over...
to say whether or not he was subjected to violence”.
Hocquenghem observed that the trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
ceremony constrains the child: “The public affirmation of consent to such acts is extremely difficult, as we know. Everybody - judges, doctors, the defendant - knows that the child was consenting - but nobody says anything, because, apart from anything else, there's no way it can be introduced”.
He stressed that it is impossible to express a complete relationship
Interpersonal relationship
An interpersonal relationship is an association between two or more people that may range from fleeting to enduring. This association may be based on limerence, love, solidarity, regular business interactions, or some other type of social commitment. Interpersonal relationships are formed in the...
between an adult and a child, a relationship involving all kinds of affective contacts and going through all kinds of stages (which are not all exclusively sexual), solely in terms of consent, and that to express it in terms of legal consent is an absurdity:
- “In any case, if one listens to what a child says and if he says ‘I didn't mind’, that doesn't have the legal value of ‘I consent’."