Michel Foucault on age of consent
Sexual
Morality and the Law
/ The
Danger of Child Sexuality
“La loi de la pudeur”
Sexual
Morality and the Law is the transcription
of a 1978 radio conversation in Paris between French philosopher
Michel Foucault, play-writer/actor/lawyer Jean
Danet and novelist/gay
activist Guy Hocquenghem, discussing the abolition of
age of consent laws in France. The dialogue was produced by Roger
Pillaudin and broadcast by France Culture on April 4, 1978, in its
program Dialogues.
The issue
was brought to
debate while a
reform in the French
Penal
Code was under way in the Parliament. Many French intellectuals, among which
philosophers Jacques Derrida and Louis Althusser and
pediatrician/psychoanalyst Françoise Dolto – as well as Foucault, Danet
and Hocquenghem – had signed a petition addressed to the Parliament in
1977 defending the decriminalization of all consented relations
between adults and minors below the age of fifteen (the age of
consent in France).
It was first published in
French as "La loi de la pudeur" [literally, "The
law of decency"] in
magazine
Recherches #37, April 1979, pp. 69-82, and first published in English
(abridged text) in Semiotext(e)
Magazine
(New York): Semiotext(e) Special Intervention Series 2: Loving
Boys /
Loving Children (Summer 1980), pp. 40-42, 44, in a translation by Daniel
Moshenberg.
This is the full version,
published in Michel Foucault’s book Politics, philosophy, culture:
interviews and other writings 1977-1984, edited by Lawrence D. Kritzman
(1988). New York/London: Routledge. Translated by Alan Sheridan, with the title
"Sexuality Morality and the Law" (Chapter 16, pp. 271-285). ISBN
0415900824.
The text was
later
reprinted in English as “The Danger of Child Sexuality”,
and published in Foucault’s book Foucault live (interviews, 1961-1984),
edited by Lotringer, S. (1996). New York: Semiotext(e), pp. 264-274. Translation
by Alan Sheridan. La loi de la pudeur was later reprinted in French
in Foucault's book
Dits et écrits 1976-1979.(1994).
Tomo III. Paris: Gallimard, pp. 766-776.
D I A L O G U E
MICHEL FOUCAULT:
All three of us agreed to take part in this broadcast (it was agreed in
principle several months ago) for the following reason. Things had evolved on
such a wide front, in such an overwhelming and at first sight apparently
irreversible way, that many of us began to hope that the
legal
regime imposed on
the
sexual
practices of our contemporaries would at last be relaxed and broken up.
This
regime is not as
old as all that, since the
penal
code of 1810 (1)
said very little about sexuality, as if sexuality was not the business of the
law; and it was only during the 19th century and above all in the 20th, at the
time
of Petain or of the Mirguet amendment (1960)
(2), that
legislation on sexuality increasingly became oppressive.
But, over the last ten years
or so, a movement in public opinion and
sexual
morals
has been discernible in
favor of
reconsidering this
legal
regime.
A Commission for the Reform
of
Penal
Law was even
set
up, whose task it was to revise a number of
fundamental
articles in the
penal
code. And this commission has actually admitted, I must say with great
seriousness, not only the possibility, but the need to change most
of the articles in our present legislation concerning
sexual
behavior. This commission, which has now been sitting for several months,
considered this reform of the
sexual
legislation last May and June. I believe that the proposals it expected to make
were what may be called
liberal.
However, it would seem that
for several months now, a movement in the opposite direction has begun to
emerge. It is a disturbing movement - firstly, because it is not only
occurring in France. Take, for example, what is happening in the United States,
with Anita Bryant's campaign against homosexuals, which has almost gone so far
as to call for murder. It's a phenomenon observable in France.
But in France we see it
through a number of
particular,
specific facts, which we shall talk about
later
(Jean Danet and Guy Hocquenghem will certainly provide examples), but ones that
seem to
show
that in both police and
legal
practice we
are
returning to tougher and stricter positions. And this movement,
observable in police and
legal
practice, is unfortunately very often supported by press campaigns, or by
a system of information carried out in the press.
It is therefore in this
situation, that of an overall movement tending to liberalism, followed by a
phenomenon of reaction, of slowing down, perhaps even the beginning of a reverse
process, that we
are
holding
our discussion this evening.
GUY
HOCQUENGHEM:
Six months ago we launched a petition demanding the abrogation
of a number of articles in the law, in
particular
those concerning relations between and decriminalization of relations between
adults and minors below the age of fifteen.
A lot of people signed it,
people belonging to a wide range of political positions, from the
Communist Party to Mme. Dolto
(3).
So it's a petition that has been signed by a lot of people who
are
suspect neither of being particularly pedophiles themselves nor even of
entertaining extravagant political views.
We felt that a certain
movement was beginning to emerge, and this movement was confirmed by the
evidence submitted to the commission reforming the
penal
code. What we can now see, then, is not only that this kind of movement is
something of a
liberal
illusion, but that in fact it does not amount to a profound transformation in
the
legal
system, either in the way in which a case is investigated or in the way it is
judged in court.
Furthermore, at the level of
public opinion, at the level of the
mass
media, the newspapers, radio, television, etc., it is rather the opposite that
is beginning to take place, with new arguments being used. These new arguments
are
essentially about childhood, that is to say, about the exploitation of
popular
sentiment and its spontaneous
horror
of anything that
links
sex with the child.
Thus, in an article in the
Nouvel Observateur begins with a few remarks to the effect that
"pornography involving children is the ultimate American nightmare and no doubt
the most terrible in a country fertile in scandals." When someone says that
child pornography is the most terrible of present scandals, one cannot but be
struck by the disproportion between this - child pornography, which is not
even prostitution - and everything that is happening in the world today -
what the black population has to put up with in the United States, for instance.
This whole campaign about
pornography, about prostitution, about all those
social
phenomena - which
are in
any case controversial - only
leads
to one
fundamental
presupposition: 'it's worse when children
are
consenting and worse still if it is
neither pornographic nor paid for', etc. In other words, the entire
criminalizing context serves only to bring out the kernel of the accusation: you
want to make love with consenting children. It serves only to stress the
traditional prohibition and to stress in a new way, with new arguments, the
traditional prohibition against
sexual
relations without violence, without money, without any form of prostitution,
that may take place between adults and minors.
JEAN
DANET:
We already know that some psychiatrists consider that
sexual
relations between children and adults
are
always traumatizing. And that if a child doesn't remember them, it is because
they remain in his subconscious, but in any case the child is marked forever,
the child will become emotionally disturbed. So what takes place with the
intervention of psychiatrists in court is a manipulation of the
children's consent, a manipulation of their words.
Then there is another use - a
fairly recent one, I think - of repressive legislation, which should be noted
because it may be used by the
legal
system as a temporary tactic to fill in the gaps.
Indeed in the traditional
disciplinary institutions - prisons, schools, and asylums - the nurses,
teachers, and so on, followed a very strict regimen. Their
superiors
kept as
close
a watch on them as on the inmates.
On the other hand, in the new
agencies of
social
control, control through hierarchy is much more difficult. Indeed we may well
wonder whether we
are
not witnessing a use of common-law legislation; incitement of a minor to commit
an immoral act, for example, can be used against
social
workers and teachers.
And I would point out in
passing that Villerot is a teacher, that Gallien was a doctor even if the acts
did not take place at a
time
when he was practicing his profession; that 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.
So the common-law appears to have been used this
time
to repress teachers and
social
workers who were not carrying out their task of
social
control as their respective hierarchies wished.
Between 1830 and 1860, there
already were laws directed specifically at teachers: certain judgements stated
this explicitly. Article 334 of the
Penal
Code - which applied to certain persons, teachers, for example, and concerned
the incitement of minors to commit immoral acts - was invoked in a case that did
not involve a teacher.
So we can see the extent to
which such legislation is ultimately looking for places where 'perverts likely
to corrupt young people' might slip in. The judges were obsessed with this.
They were unable to come up with a definition of the perversions.
Medicine and psychiatry were
to do it for them. In the mid-19th century they had one obsession: if the
pervert was everywhere, then they must start tracking him down in the most
dangerous institutions, the institutions at risk, among the populations at risk,
though the term had not yet been invented.
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.
This is not always necessarily
the case, and it is
quite
possible to believe that traditional repressive laws will function side-by-side
with much more subtle form of control, a hitherto unknown form of sexology that
would invade all institutions, including educational ones.
MICHEL
FOUCAULT:
Indeed, it seems to
me
that we have reached an important point. It is true that we
are
witnessing a
real
change: it is probably not true that this change will be favorable to any
real
alleviation of the legislation on sexuality.
As Jean Danet has shown, a
very large body of legislation was gradually promulgated, though not without
difficulty, throughout the 19th century. But this legislation was
characterized by the odd fact that it was never capable of saying exactly what
it was punishing.
Harassments were punished, but
were never defined. Outrageous acts were punished; nobody ever said what an
outrage was. The law was intended to defend decency (pudeur); nobody ever
knew what pudeur was. In practice, whenever a legislative intervention
into the sphere of sexuality had to be justified, the law on pudeur was
always invoked. And it may be said that all the legislation on sexuality
introduced since the 19th century in France is a
set of
laws on pudeur.
It is certainly a fact that
this legislative apparatus, aimed at an undefined object, was never used except
in cases when it was considered to be tactically useful. Indeed, there has been
a whole campaign against teachers. There was a
time
when it was used against the clergy.
This legislation was used to
regulate the phenomenon of child prostitution, so important throughout the 19th
century between 1830 and 1880.
We
are
now aware that this instrument, which possessed the advantage of flexibility,
since its object was undefined, could no longer survive when these notions of
pudeur, outrage, and harassment were seen as belonging to a
particular
system of value, culture, and discourse; in the pornographic explosion and the
profits that it involves, in this new atmosphere, it is no longer possible to
use these words and to make the law function on this basis.
But what is emerging -
and indeed why I believe it was important to speak about the problem of children
- 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.
In other words, the
legislator 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.
In this category, of course,
are
children, who may find themselves at the mercy of an adult sexuality that is
alien to them and may well be harmful to them.
Hence there is a legislation
that appeals to this notion of a vulnerable population, a "high-risk
population," as they say, and to a whole body of psychiatric and psychological
knowledge imbibed from psychoanalysis - it doesn't really matter whether the
psychoanalysis is good or bad - and this will give the psychiatrists the
right to intervene twice.
Firstly,
in
general
terms, to say: yes, of course, children do have a sexuality, we can't go
back to those old notions about children being pure and not knowing what
sexuality is.
But we psychologists or
psychoanalysts or psychiatrists, or teachers, we know perfectly well that
children's sexuality is a specific sexuality, with its own forms, its own
periods of maturation, its own highpoints, its specific
drives,
and its own latency periods, too. This sexuality of the child is a territory
with its own geography that the adult must not enter. It is virgin territory,
sexual
territory, of course, but territory that must preserve its virginity.
The adult will therefore
intervene as guarantor of that specificity of child sexuality in order to
protect it. And, on the other hand, in each
particular
case, he will say: this is an instance of an adult bringing his own sexuality
into the child's sexuality.
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
seduced the adult; but we specialists with our
psychological knowledge know perfectly well that even the seducing child
runs
a risk, in every case, of being damaged and
traumatized by the fact that he or she has had
sexual
dealings with an adult.
Consequently, the child
must be 'protected from his own desires', even when his desires turn him
towards an adult. The psychiatrist is the one who will be able to say: I can
predict that a
trauma
of this importance will occur as a result of this or that type of
sexual
relation.
It is therefore within the
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 above all of the relations between child and adult sexuality
will be based; and it is one that is extremely questionable.
HOCQUENGHEM:
There is a whole mixture of notions that makes it possible to
fabricate this notion of
crime
or offence against decency, a highly complex
mixture, which we do not have
time
here to discuss at length, but which comprises both the religious prohibitions
concerning sodomy and the completely new notions, to which Michel Foucault has
just referred, about what people think they know of the
total
difference between the world of the child and the world of the adult.
But today’s overall tendency
is indisputably not only to fabricate a type of
crime
that is
quite
simply the erotic or
sensual
relationship between a child and an adult, but also, since this may be isolated
in the form of a
crime,
to create a certain category of the population defined by the fact that
it tends to indulge in those pleasures.
There exists then a
particular
category of the pervert, in the strict sense, of monsters whose aim in life is
to practice sex with children. Indeed they become perverts and
intolerable monsters since the
crime
as such is recognized and constituted, and now
strengthened by the whole psychoanalytical and sociological
arsenal.
What we
are
doing is constructing an entirely new type of criminal, a criminal so
inconceivably horrible that his
crime
goes beyond any explanation, any victim. It is
rather like that kind
legal
monster, the term "attentat sans violence": an attack without
violence that is unprovable in any case and leaves no trace, since even the
anuscope is unable to find the slightest lesion that might legitimate in some
way or other the notion of violence.
Thus, in a way, public outrage
to decency also realizes this, insofar as the offence in question does not
require a public in order to be committed.
In the case of "attenat
sans 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.
Take the case of Parajanov.
When a delegation arrived in Paris to see the representative of the Soviet
embassy to hand in a protest, the Soviet representative replied: in fact you
don't really know why he was condemned; he was condemned for raping a child.
This representative read the press: he knew very well that this term inspired
more fear that any other.
The constitution of this type
of criminal, the constitution of this
individual
perverse enough to do a thing that hitherto had always been done without anybody
thinking it right to stick his nose into it, is an extremely
grave
step from a political point of view.
Even if it has not reached the
same dimensions as the campaigns against the terrorists, there
are
nevertheless several hundred cases going before the courts each year.
And this campaign suggests
that a certain section of the population must henceforth be regarded a priori
as criminals, may be pursued in operations of the "help the police" type, and
this is what happened in the case of Villerot. The police report noted with
interest that the population took part in the search, that people used their
cars to
look
for the pervert. In a way the movement feeds upon itself.
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. The
crime
feeds totally upon itself in a man-hunt, by the identification, the isolation of
the category of
individuals
regarded as pedophiles. It culminates in that sort of call for a lynching sent
out nowadays by the gutter press.
DANET:
It is true that lawyers defending these cases have a lot of problems. But
I should like to say something specifically about such problems.
In cases like the
Croissant
affair, the terrorists' lawyers were regarded immediately as dangerous
accomplices of the terrorists
(4).
Anyone who came into contact with the affair became implicated.
Similarly, the defense of
someone found guilty of an indecent act with a minor, especially in the
provinces, has extremely serious problems, because many lawyers simply cannot
take on such a defense, avoid doing so, and prefer being appointed by the court.
For, in a way, anyone who
defends a pedophile may be suspected of having some sympathy for that cause.
Even judges think to themselves: if he defends them, it's because he isn't
really as much against it himself.
It's a serious matter, though
it's almost laughable really, it's a fact known to anyone who has had to deal
with such cases whether in the provinces or in Paris: it is extremely difficult
both for the lawyer to defend such a case and even sometimes to find a lawyer
willing to do so.
A lawyer will be
quite
happy to defend someone accused of ten old ladies. That doesn't bother him in
the least. But to defend someone who has touched some kid's cock for a second,
that's a
real
problem. That is part of the whole
set up
around this new sort of criminal, the adult who has erotic relations with
children.
I apologize for referring to
history once again, but I think in this matter one can usefully refer to
what happened in the 19th and early 20th centuries.
When an open letter to the
commission for the reform of the
penal
code was published and signatures placed at the bottom of this letter, it was
remarked that a number of psychologists, sexologists, and psychiatrists had
signed. What they were demanding, then, was the decriminalization of immoral
acts with minors over the age of fifteen, a different
regime for immoral
acts with minors between fifteen and eighteen, abolition of the offense
of public outrage etc., etc. The fact that psychiatrists and psychologists
demanded that the law be brought up to date on this point did not mean that they
were on the side of those who were subjected to such repression.
What I mean is, just
because one is involved in a struggle against some authority, in this
instance, the
legal
authorities, this does not mean one is on the side of those who
are
subjected to it.
This is proved by the example
of Germany, where from the 19th century onwards, from 1870, a whole movement
protested against a law that was aimed at homosexuals, paragraph 175 of the
German
penal
code. It was not even a
habitual
crime.
There was no need to be an acknowledged homosexual; a single homosexual act was
enough, whatever it may be.
So a whole movement developed,
made up of homosexuals, but also of doctors and psychiatrists, to demand the
abolition of this law. But if one reads the literature published by these
doctors and psychiatrists it becomes absolutely clear that they expected only
one thing from the abolition of this law, namely, to be able to take over the
perverts for themselves and to treat them with all the knowledge that they
claimed to have acquired since around 1860.
With Morel's "Treatise On
Degeneracy" what we have is the setting up of a whole nosography of the
perversions; and these psychiatrists were demanding in fact that the perverts be
handed over to them, that the law should give up any dealings it may have with
sexuality, which it speaks of so badly, in so unscientific a way, and that they
should be able to treat cases in a perhaps less aggressive, less systematic,
less blind way than the law;
They alone could say in each
case who was guilty, who was sick, and calmly decide what measures were to be
taken (5).
I'm not saying that thing were reproduced in the same way, but it is
interesting to see how the two authorities could be in competition to get hold
of that 'population of perverts'.
MICHEL
FOUCAULT:
I'm certainly not going to sum up everything that has been said. I think
Hocquenghem has shown very clearly what was developing in relation to the strata
of the population that had to be "protected."
On the other hand, there is
childhood, which by its very nature is in danger and must be protected against
every possible danger, and therefore any possible act or attack.
Then, on the other hand, there
are
dangerous
individuals,
who
are
generally adults of course, so that sexuality, in the new system that is being
set
up, will take on
quite
a different appearance from the one it used to have.
In the past,
laws prohibited a number of acts, indeed acts so numerous one was
never
quite
sure what they were, but, nevertheless, it was
acts that the law concerned itself with. Certain forms of behavior were
condemned.
Now what we
are
defining and, therefore, what will be found by the
intervention of the law, the judge, and the doctor,
are
dangerous
individuals.
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.
And sexuality will no
longer be a kind of behavior 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, etc. Sexuality will become a threat in all
social
relations, in all relations between members of different age groups,
in all relations between
individuals.
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.
And what we will have there is
a new
regime
for the supervision of sexuality; in the second
half of the 20th century it may well be decriminalized, but only to appear in
the form of a danger, a
universal danger,
and this represents a considerable change. I would say that the danger lay
there.
DISCUSSION
PIERRE
HAHN:
I simply would like to mention a work that appeared about ten years ago, but
which seems to
me to
be rather important in the present context. It is a work on the
personality of exhibitionists. On the one hand, then, there is this
classification that
leads
to excluding a certain type of exhibitionist from what I would call the system
of psychoanalytic reeducation and, on the other hand, it actually consists in
returning, but in rather different ways, apparently to the notion of
the born criminal.
I just would like to quote
this sentence from the book, because it seems to
me
significant and then I shall say why: "The exhibitionist perversion is a
category of exhibitionistic perverts - exhibitionistic perversion corresponds
here to a phenomenon of
radical
amputation from part of the instincts, and this amputation takes place at a
stage that is neither
genital
nor non-genital in
sexual
development, but in that still mysterious area where personality and instinct
seem to
me to
be potential."
Yes, we
are
back to Lombroso's notion of the born criminal,
which the author himself had just quoted
(6). It
really is something present before birth, something that appears to be in the
embryo; and if I mention the embryo it is because at the present
time
we
are
seeing a strong return of old methods, though perhaps wrapped up in new forms:
methods such as psycho-surgery, in which, for example, homosexuals,
pedophiles, and rapists might be operated on in the brain.
On the other hand, certain
genetic manipulations
are
being carried out: we had proof of this
quite
recently, especially in East Germany. All this seems to
me
very disturbing. Of course, it is pure repression.
But, on the other hand, it is
also evidence of a certain use of the critique of psychoanalysis that is in a
sense
quite
reactionary, I would say, in inverted commas. The
expert
referred to in the text I have quoted is called Jacques Stephani, a psychiatrist
in Bordeaux who has contributed to the study of the exhibitionist personality.
The
expert
actually says that the judge must act as one element in a process of therapeutic
reeducation, except in the extreme case where the subject is regarded as beyond
rehabilitation.
This is the
moral
madman, Lombroso's born criminal.
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.
Society has to defend itself against dangerous
individuals.
There
are
dangerous
individuals
by nature, by heredity, by genetic code, etc.
Q:
I would just like to ask Guy Hocquenghem, who gave us an outline of some
examples of the repression associated today with this type of act, how can we
create strategic alliances to fight in that area?
The
natural
allies of this type of movement - which
are,
lets say, the progressive groups -
are
somewhat reticent about getting mixed up in this sort of business. Movements
such as the women's movement
are
focusing their activities on such problems as rape and
are
succeeding in increasing the penalization of such acts.
HOCQUENGHEM:
We were very careful in the text of the Open Letter to the
Penal
Code. We took great care to speak
exclusively of an indecent act not involving violence 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.
Now I agree with you on one
thing, and that is that we have all seen the television program on rape and were
all shocked by the reactions it aroused in France, some of which even went so
far as telephone calls requesting the chemical castration of the rapists.
There
are
two problems here. There is the problem of rape in the strict sense, on which
the women's movement and women in
general
have expressed themselves perfectly clearly, but there is the other problem of
the reactions at the level of public opinion. One triggers
off
secondary effects of man-hunting, lynching, or
moral
mobilization.
DANET:
I should like to add something in reply to the same question. When we say that
the problem of consent is
quite
central
in matters concerned with pedophilia, we
are
not, of course, saying that consent is always there.
But - and this is where one
may separate the attitude of the law with regard to rape and with regard to
pedophilia - in the case of rape, judges consider that there is a
presumption of consent on the part of the woman and that
the opposite has to be demonstrated. Whereas where pedophilia is concerned,
it's the opposite. It's considered that there is a presumption of
non-consent, a presumption of violence, even in a case where no
charge
of an indecent act with violence has been made,
that is, in a case in which the
charge
used is that of indecent act without violence, that is, with consenting pleasure
- because it has to be said that this act without violence is the repressive,
legal
translation of consenting pleasure.
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.
Q:
Public opinion, including enlightened opinion such as that of the doctors of the
Institute of Sexology, asked at what age there can be said to be definite
consent. It's a big problem.
MICHEL
FOUCAULT:
Yes, it is difficult to lay down barriers. Consent is one thing; it is a
quite
different thing when we
are
dealing with the likelihood of a child being believed
when, speaking of his
sexual
relations, his affections, his
tender feelings,
or his contacts (the
sexual
adjective is often an embarrassment here, because it does not correspond to
reality), a child's ability to explain what his feelings
are,
what actually happened, how far he is believed, these
are
quite
different things.
Now, where children
are
concerned, they
are
supposed to have a sexuality that can never be directed towards an adult, and
that's that. Secondly, it is supposed that they
are
not capable of talking about themselves, of being
sufficiently lucid about themselves.
They
are
unable to express their feelings about the whole thing. Therefore they
are
not believed. They
are
thought to be incapable of sexuality and they
are
not thought to be capable of speaking about it.
But, 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 sympathy, must
allow one to establish more or less what degree of violence, if any, was used or
what degree of consent was given.
And to assume that a child
is incapable of explaining what happened and was incapable of giving his consent
are
two abuses that
are
intolerable,
quite
unacceptable.
Q:
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?
MICHEL
FOUCAULT:
In any case, an age barrier laid down by law does not have much sense.
Again, the child may be trusted to say whether or not he was subjected
to violence.
An examining magistrate, a
liberal,
told
me
once when we were discussing this question: after all, there
are
eighteen-year-old girls who
are
practically forced to make love with their fathers or their stepfathers; they
may be eighteen, but it's an intolerable system of constraint. And one,
moreover, that they feel is intolerable, if only people
are
willing to listen to them and put them in conditions which they can say what
they feel.
HOCQUENGHEM: On the one hand, we didn't put any
age limit in our text. In any case, we don't regard ourselves as
legislators, but simply as a movement of opinion that demands the abolition of
certain pieces of legislation.
Our role isn't to make up new ones.
As far as this question of
consent is concerned, I prefer the terms used by Michel Foucault: listen to what
the child says and give it a certain credence. 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.
MICHEL
FOUCAULT: Consent is a contractual notion.
HOCQUENGHEM: It's a purely contractual notion.
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.
It's an important point, all
the more important for the children because it's an ambiguous victory in that to
get a judge to organize a ceremony in which the children come and say that they
were actually consenting is an ambiguous victory.
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.
It's not simply the effect of
a prohibition by law: it's really impossible to express a very complete
relationship between a child and an adult - a relation that is progressive,
long, goes through all kinds of stages, which
are
not all exclusively
sexual,
through all kinds of affective contacts. To express this 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." But I'm also very mistrustful of that
formal
recognition of consent on the part of a minor, because I know it will never be
obtained and is meaningless in any case.
Translated by Alan Sheridan
Notes:
(1)
Penal
Code of 1810: Part of the Napoleonic Code. This group of 485 articles defines
crimes,
offenses, and misdemeanors as well as the resulting punishments. Promulgated
February 12, 1810.
(2) Mirguet amendment:
Promulgated July 18, 1960 as amendment to article 38 of the 1958 French
constitution (October 4, 1958). It declared the necessity to fight against all
threats to public hygiene and specifically names tuberculosis, cancer,
alcoholism, prostitution, and homosexuality as objects of attack.
(3) Francoise Dolto. French
clinical psychoanalyst whose research on children focuses particularly on the
theoretical aspects of early maladjustment [Lawrence D. Kritzman].
(4) Klaus
Croissant.
The lawyer of the Red Army Fraction. He sought asylum in France but was the
victim of extradition to Germany in 1978. Foucault took on the cause of
Croissant
and wrote many articles on his behalf in the NOUVEL OBSERVATEUR.
(5) Benedict-Auguste Morel
(1809-1873). He studied the institution of the insane asylum in Europe and
reformulated the coercive procedures used against the mentally ill.
(6) Cesar Lombroso
(1836-1909). Italian founder of the science of criminology. Postulated a theory
that distinguishes "normal"
individuals
from criminal types.
This is the
mirror
site
of
http://www.ipce.info/ipceweb/Library/danger.htm
Further comments on
University of Minnesota – Dept. of Communications Studies
Article with main ideas of the text, transcriptions and references -
Wikipedia -
http://en.wikipedia.org/wiki/Sexual_Morality_and_the_Law
Abridged version
in French:
http://bibliobleue.fpc.net/Revues/Espoir/N19/Dossier6.htm
Information
on the petition addressed to the Parliament (in French):
Dignaction.org -
http://www.decadi.com/dignaction/Fpetit.html
Contact: [email protected]