Meade at Puerile Pyche has a new post about bullying on the basis of sexuality. He makes a neat point that young people cannot legally have "sexual orientation". I'm not sure though that this is, strictly speaking, valid. After all, one can, presumably have a sexual orientation quite legally without actually performing any of the external sexual acts one would might like to according to that orientation. So according to common parlance a man can be "gay" without performing buggery, a man can be a zoophile without bestiality, and a man can fancy children without actually "being" a paedophile. (Let's leave aside here the [t]horny issue of child pornography.)Without wishing to sound too conservative, this leads me to think that it's quite wrong to make the putative motivation behind the bullying an issue. In any event, bullies will always pick on those weaker than themselves. It's certainly a mistake to try to engage them on some sort of rational level over why they choose to bully the victims they do bully. The school therefore should be defending the child's right not be bullied, not specifically his sexuality, race, sex, or whatever.
The problem of course is that this flies in the face of modern orthodoxies about the victims' rights of certain minority groups with special statuses. If you're ethnic, or if your religion or sexuality is sufficiently exotic (but not too exotic - so Scientologists and others can watch out!) you get an extra layer of protection. A horrible example of this came a couple of weeks ago, when I had a little rant about an unfortunate kid in Lincoln who'd been convicted not just of "bullying" but of "racist bullying" - which according to the reports I read amounted to little more than name-calling. The biggest bully of all is the State, and its favourite victims are children.
It just so happens though that this particular sorry case now has something of a "happy ending". The boy has now been sentenced and the sentence has been much less draconian than it might have been. Even in the neo-Orwellian twenty-first century, we still have a judicial system that for all of the lunancy of the legislators is still relatively sensible and humane.
Originally I posed the issue about "sexual orientation" vs. "sexual ability" as a question much the way you worded it, because I don't know much about what the law says, if anything, regarding "minor sexual orientation." As far as I'm concerned, status crime laws don't regulate terms or define people (other than to classify them by legal age), but instead simply define what is legal and what is not for minors to do.
ReplyDeleteMy stance was, if the reasoning behind the law is that kids can't have sex because they don't have a sexuality, how can it be protected? Youth status crime laws are not based on the reasoning that youth need to be protected from unwanted sexual advances, because they prosecute all youth sexual behavior--whether cognizant or not, whether wanted or not. Perhaps the reasoning is that youths have the capacity to be sexual, but if they are, it is criminal.
In any case, you're correct. This is why I don't like status crime laws--mainly because I don't think laws ought to set limits on human nature, they should simply define the legal limitations on free behavior and set the consequences for illegal behavior. But status crime laws are different, because they fly in the face of reason--they make things illegal (for youths in this case) for no other reason than the status offender is in the class of individuals for which the law applies. An equivalent formulation here, as you later note, would be like designing a set of laws that make acts applying to [insert minority here] only for legal or criminally offensive to [insert minority here].
I only included the issue of homosexuality because it seemed to be the main thrust of the lawsuit. The real issue here is whether or not the school was indifferent to the bullying this student received. His sexual orientation ought to play no part in how they regard his case (whether they treat him special or fail to act).
I agree about the purposes of the Law.
ReplyDeleteIn this country childhood sexuality is legal. What is illegal is to depict it visually. It is also illegal for an older person to behave sexually with a child.
Actually I think it's all pretty vague. As I made the point in my post, we should be thankful we still have a judicial system that includes juries and sensible judges.
In practice, I'm fairly sure the Law tends to turn a blind eye to children who behave sexually with each other, unless there's genuine sexual abuse going on - or, I suppose, if there are photographs involved.
Not always. Teenagers are often criminally charged for having consensual sex with one another. I've seen stories of 12 and 14 year olds on Sex Offender Registries for behaviors that are only criminal because they are of a certain age--meaning they wouldn't be criminal if anyone else were doing them.
ReplyDeleteWith so many teens getting criminally charged in all these sexting cases, state governments are actually beginning to rethink what the purpose of sexual status crime laws are--are we protecting them from sexual abuse and by doing so, needlessly subjecting them to potention prosecution?
I'm glad to hear about the "rethink". Certainly whatever the purpose of these laws they're not having whatever effect they're intended to.
ReplyDelete