One of the many aspects of the extremely complex cases of horrific child sex abuse and exploitation that have been revealed recently, is that some cases seemingly were not investigated or pursued on the grounds that the girl involved ‘consented’ to the situation. The men who were abusing them were thus able in many instances to continue and even to escalate their abuse. In some cases, much older, married, violent, known offenders were classed as ‘boyfriends’ or ‘sweethearts’ in a consensual relationship – even with girls who were well under the legal age of consent.
‘She’s consenting, so there’s nothing we can do’ was a particularly horrendous mistake in those cases where the girls involved were groomed and in many cases, violently threatened if they did not continue to comply, or if they told anybody what was going on. It is impossible to comment on any of the individual cases, and indeed, many complex factors would have fed into these toxic, appalling tragedies. One of these may have been a simplified picture of ‘consent’, especially in relation to adolescents. This simple model is implicitly a ‘threshold’ picture of consent, where reaching a certain level of maturity enables one to ‘turn on’ a consent switch – and bingo, you are now capable of consenting.
The ‘Gillick’ ruling on consent to medical treatment implicitly takes such a model, applying it on a case by case basis, where for particular decisions, different individuals will acquire sufficient capacity to consent at different ages – so that even those under the legal barrier of 16 may consent to receive certain medical treatment.
This case, as is well known, was heard in the context of supplying girls under the age of 16 with contraceptives without parental consent or knowledge. It was found that girls may, on a case by case basis, have the maturity to consent to this, and this has now been extended routinely to other cases of medical treatment.
So far, so sensible? Well, this all needs to be considered very carefully in different contexts. In work I undertook with the sociologist Maggie Gregory, we examined interviews with young women who had, as teenagers, ‘consented’ to genetic testing for carrier status for haemophilia. Each of these had been marked off in the clinic as having given ‘informed consent’ to the testing. Yet, interviewed some years later, many of these young women said that they really had no idea what this all meant – for instance saying that it was only years later that they realised that that meant they could have a baby with haemophilia. In outline, they had given consent; but our conclusions were that it was only with the greater maturity of hindsight that they more fully grasped the implications of what it was they had consented to. In other words, their consent was not fully informed, after all. We conjectured that as teenagers, they had lacked the experience, and had not yet reached the stage of life at which it was really possible to give a fuller reflection on what it might mean to carry a genetic condition and pass it on to a child. If you’d asked them at the time, they would no doubt have agreed that they consented. If you asked them later, many would say that they did not really realise what the testing was about.
This strongly parallels the testimony of some of the victims who have spoken out about their abuse in towns such as Rotherham. And consider the Gillick ruling itself. This found that a girl under the age of 16 may be mature enough to consent to the prescription of contraception. But if there was any room for doubt about whether somebody is really consenting to any medical treatment or procedure, one might say, well, why not wait? I can hear you cackling as I type – for of course, a keenly relevant reason not to wait exists – because these girls are at risk of pregnancy. So, as long as they understand well enough, then that has been reasoned to be grounds to consider that they do have the capacity to consent to contraceptive use. But, I would argue, one pressing reason for considering that a girl under 16 may have the maturity to consent to contraception use, is precisely because, lacking the maturity, physically, emotionally, and socially, for motherhood, it’s particularly important that she does not get pregnant. Granting the legal capacity to consent to contraception is thus relative not to maturity, but in this respect, to immaturity. There’s a pragmatic reason for saying – ‘okay, mature enough, quick, get her the pill’. Gillick consent is, to this extent, a legal fiction, or at least, a legal myth – maybe it exists, maybe it doesn’t, but there are benefits in believing in it.
Now, that reasoning may be perfectly sound in certain cases. But note that this does not mean that the girl has now reached some threshold of general maturity. Note that often, contraception may be provided principally because it’s considered that sexual activity is going to take place regardless, and it’s better that the girl is protected. So, in some cases, a girl may be deemed in law capable of consenting to contraception when she may not be truly capable of consent to sexual activity; she may well live to see the day when she looks back and thinks ‘good grief, what was I doing?’
The Gillick ruling on the prescription of contraception to girls under 16 without parental consent may then in fact act as ‘gateway’ consent to a generalised view of capacity to consent, when this may not be necessarily justified. Indeed, in the context of adolescent testing for carrier status (where there is rarely any medical necessity at the time of testing) there is evidence that the average age of testing for girls in the UK is lower than in the rest of Europe, and this may be attributable to the effects of the Gillick ruling on views on medical capacity to consent.
Consent should be seen as something that is relative to time, place and person, as something that may be partial, as something that can be retrospectively revised, that is relative to other harms and benefits. Sticking more firmly to a presumption that sexual activity under the age of 16 is sex without consent – especially with older men, as has been seen over and over and over again as in the cases in Rochdale, Oxford, Rotherham, Derby ….the list goes on, sadly – seems like a good idea.