Children As Chattel of The State Deconstructing The Concept of Sex Trafficking PDF

The International Journal of Human Rights
ISSN: 1364-2987 (Print) 1744-053X (Online) Journal homepage: http://www.tandfonline.com/loi/fjhr20
Children as Chattel of the State: Deconstructing

the Concept of Sex Trafficking
Sonja Grover
To cite this article: Sonja Grover (2007) Children as Chattel of the State: Deconstructing the
Concept of Sex Trafficking, The International Journal of Human Rights, 11:3, 293-306, DOI:
10.1080/13642980701443525
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Download by: [Pontificia Universidad Catolica de Chile] Date: 21 November 2017, At: 10:47
The International Journal of Human Rights
Vol. 11, No. 3, 293 –306, September 2007
Children as Chattel of the State:

Deconstructing the Concept of Sex
Trafficking
Downloaded by [Pontificia Universidad Catolica de Chile] at 10:47 21 November 2017
SONJA GROVER
Faculty of Education, Lakehead University Thunder Bay, Ontario, Canada
ABSTRACT International human rights law protects against child prostitution and commercial
child sexual trafficking. However, age of sexual consent laws in most jurisdictions permit the non-
commercial sexual exploitation of children. Age of consent for prostitution is generally set higher
than the general age of sexual consent or is banned as is commercial child sex trafficking. Many
countries do not permit marriage for children to whom adults yet have broad, lawful sexual
access outside of marriage. The more vigorous opposition to commercial as opposed to non-
commercial adult – child sex demonstrates the State’s concern with its own and not the child’s
best interest. Through the misappropriation of children’s rights discourse, States have sought to
rationalise their current age of sexual consent laws. The latter, however, engages the State, in
effect, in domestic sexual trafficking of children. Children from vulnerable groups are especially
at risk as the law frequently renders children as chattel of the State.
Introduction
This paper discusses the complicity of the States Parties to the Convention on the Rights of
the Child (CRC) (1989)1 in perpetuating the sexual exploitation of children.2 This exploi-
tation arises due to lawful adult sexual contact with persons under age 18 in a variety of
non-commercial contexts. The term ‘sexual exploitation’ as used here refers to the United
Nations definition of: ‘Any actual or attempted abuse of a position of vulnerability, differ-
ential power, or trust for sexual purposes [and] not limited to, profiting monetarily,
socially or politically from the sexual exploitation of another’ (emphasis added).3 It has
been noted by UNICEF that:
There is a fine line between commercial and non-commercial sexual exploitation.

. . .Even if no money exchanges hands when a child is being sexually exploited,
it’s still a question of power. That’s why we prefer to look at sexual exploitation
in a broad perspective. (Emphasis added.)4
Correspondence Address: Sonja Grover, Faculty of Education, Lakehead University, 955 Oliver Road, Thunder
Bay, Ontario, Canada P7B 5E1, Canada. Tel.: þ1 807 344 5476, Email: sonja.grover@lakeheadu.ca
ISSN 1364-2987 Print/1744-053X Online/07/030293–14 # 2007 Taylor & Francis

DOI: 10.1080/13642980701443525
294 S. Grover
Sexual exploitation is in fact an inherent element in adult –child sex, whether in a commer-
cial or a non-commercial context, given the power differential between the parties. The
State Parties to the CRC have demonstrated their complicity in sexual exploitation of
the child by upholding age of sexual consent laws that permit adult – child sex within
certain constraints (the alleged defences to this approach are contested in a later section
of this paper). For instance, in the Netherlands, age of sexual consent is 12 and in
Canada age 14. These are among the lowest ages of sexual consent in the world. Thus,
many developed States are no less contributors to the non-commercial sexual exploitation
of children than are the less developed States.
Further, there is a prevalent failure among the State Parties to the CRC to adequately
protect child domestic workers from sexual exploitation. Likewise, there is a failure to
protect children, especially girls, from sexual exploitation via the vehicle of child
marriage. UNICEF reports that early marriage, even before puberty, is common. For
example, a 1998 survey in the Indian state of Madhya Pradesh revealed that nearly 14%
of girls were married between the ages of 10 and 14. In Ethiopia and parts of West
Africa, marriage at age seven or eight is not uncommon.5 Note also that some child
marriages require parental consent. In Texas, for example, children as young as 14 can
marry with consent of the parents. Thus, in actuality, the child does not have a right of
early marriage, but rather the parent has a property right to the child. The parent’s
property right to their child can be exercised, for instance, by the parent authorising
their child’s premature marriage to an adult. That premature marriage, of course, entails
adult sexual access to the often pre-pubescent child with the attendant risks. Those risks
include a substantially increased risk of AIDS for the children entering into such
premature marriage often at the behest of their parents.6
Adult –child sex in non-commercial contexts constitutes child sexual exploitation no
less than does the same when in a commercial context. Yet, the international community
has focused its attention on commercial sexual exploitation of children. There has been
little progress in regards to protecting children from sexual abuse by non-family
members in non-commercial contexts. Most States permit non-commercial adult – child
sex by defining children of a certain age under 18 as adults in respect to age of sexual
consent. Yet, the child is considered trafficked when the activity occurs in a commercial
context. These States also generally have a higher age of consent for becoming a prostitute
under the age of 18 than the general age of sexual consent, or ban the activity of child pros-
titution7 altogether. Few States ban adult – child marriage although most set the age of
consent for marriage higher than the general age of sexual consent. Others may require
parental approval for the child’s premature marriage but this often proves to be no
obstacle. Thus, the international community has made a commitment in principle to miti-
gate the growth of child prostitution, child sex trafficking, and other forms of commercial
sexual exploitation of children. However, there has been no similar commitment to pre-
venting the non-commercial forms of sexual exploitation of children.
The international human rights agenda in regards to preventing the commercial
sexual exploitation of children is reflected in Article 35 of the CRC, which states:
‘States Parties shall take all appropriate national, bilateral, and multilateral measures
to prevent the abduction of, sale of, or traffic in children for any purpose and in any
form’.8 The commitment to the eradication of child prostitution and child sex traffick-
ing without deference to traditional cultural practices is also reflected in the ratification
of the Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children as Chattel of the State 295
Children, Child Prostitution, and Child Pornography (2000).9 The outright ban or
higher age of consent in regards to child prostitution as opposed to consent to sex
with an adult, where there is no ostensible financial or other consideration, reflects a
certain social consensus. That consensus is that the use of children for sex in prostitu-
tion or some other commercial context (i.e. marketed child pornography) constitutes
‘sexual exploitation’.
The Optional Protocol to the CRC dealing with commercial sexual exploitation of
children further acknowledges that girl children are at particular risk in this regard as
are children from vulnerable groups: ‘Recognising that a number of particularly vulner-
able groups, including girl children are at greater risk of sexual exploitation and that
girl children are disproportionately represented among the sexually exploited’.10 Why
then is this primary focus on eliminating the sexual exploitation of children outside
the family setting in only commercial contexts? The answer seems to be that it is
commercial child sexual exploitation that most directly and significantly impacts upon
State interests. This given that child prostitution, child pornography, and child sex
trafficking are multi-billion dollar sources of funding for organised crime.11 For that
reason, commercial sexual exploitation of children significantly undermines State
institutions and authority.12 Organised crime furthermore threatens the security conditions
in the country and is thus ultimately a discouragement to foreign investment. That is, in the
final analysis, commercial child sexual exploitation is bad for the State’s legitimate
business interests.
It is noteworthy in this respect that the United Nations Protocol to Prevent, Suppress, and
Punish Trafficking in Persons, Especially Women and Children (2000)13 is a supplement
to none other than the United Nations Convention Against Transnational Organised
Crime, which came into effect in 2003.14 Nevertheless, the definition of human trafficking
in the supplement to the convention against organised crime reveals that it is applicable to
both commercial and non-commercial sexual exploitation of a child.15 In this regard, con-
sider that Article 3(a) of the supplement States that an abuse of power or of a position of
vulnerability to achieve consent is an element of trafficking.16 Children are vulnerable in
respect to adults in that they lack power politically and financially and most often are vul-
nerable psychologically. Children recruited and harboured for adult-child sex often come
from poor and/or troubled backgrounds and from socially marginalised groups. Addition-
ally, the children’s developmental need for independence and difficulty assessing risk may
add to their vulnerability.
Sexual exploitation is not limited to prostitution in the protocol concerning the traffick-
ing of women and children. Rather, it is recognised in the protocol that the forms of, and
contexts for, sexual exploitation may be varied. Practices such as ‘servitude’ and those
‘similar to slavery’ are specifically mentioned in the protocol as frequent contexts for
sexual exploitation and instances of human trafficking.17 In a later section of this paper,
this point is addressed. Parallels are drawn between children caught up in the sex traffic
trade and child domestics who are sexually exploited outside of the commercial sex
trade. The latter are often in a position of sexual servitude in the particular household
in which they are a paid or even an unpaid domestic.18 It is also an essential point that
the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children 19 focuses on the exploitive result with respect to children
and not on the circumstances under which the child became involved. More specifically,
Article 3(c) of the latter protocol holds that ‘The recruitment . . . harboring . . . or receipt of
296 S. Grover
a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if
this does not involve [abuse of power or of a position of vulnerability]’ (emphasis
added).20 Under the aforementioned definition, then, a child recruited by any means and
harboured in any context—including a non-commercial one—for the purpose of sexual
exploitation by an adult can also be regarded as a child who has been trafficked. This,
since according to Article 3(c) of the protocol regarding child trafficking, the ‘consent’
of the child victim harboured for the purpose of exploitation is irrelevant.21 That is, the
child is considered trafficked if the adult purpose is sexual exploitation even where no
overt coercion is used. In any case, adults who gain sexual access to persons under the
age of 18 are in fact abusing that power, which is a function of their greater life experience
and the financial independence and other power-related factors that generally correlate
with adult status.
Despite the fact that children involved in adult –child sex in a non-commercial context
fit the criteria under the United Nations Protocol to Prevent, Suppress, and Punish Traf-
ficking in Persons, Especially Women and Children 22 for having been sexually exploited
and trafficked, they are not covered by the international human rights instrument. This is
the case since the applicability of the instrument is restricted to ‘offences transnational in
nature’, which ‘involve an organized criminal group’ and ‘to the protection of victims of
such offences’. 23 Child sexual exploitation in non-commercial contexts,24 however, typi-
cally does not involve organised crime or transfer of children across borders. Rather, in the
latter cases, the sexual child exploitation is legal under the domestic law, and the State
itself is thus, in effect, playing the role of child sex trafficker within its own borders.25
While not all children (persons under 18), thus, are protected from sexual exploitation
due to the delimitations of the UN Protocol on child trafficking, neither are all children
afforded such protection under the CRC.26 Article 34 of the CRC provides that ‘States
Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse’ (emphasis added).27 In addition, Article 32 of the CRC refers to the obligation
of the State to protect the child from ‘performing any work that is likely to be hazardous
or to interfere with the child’s health or physical, mental, spiritual, moral, or social
development’.28
Regrettably, however, Article 1 of the CRC provides for deference to domestic law in
respect to age of majority regarding adult –child sex.29 Consequently, the CRC fails to
provide protection from non-commercial sex trafficking for all persons under age 18
regardless of national origin. Those persons under age 18 who are defined as ‘adult’
under domestic law for the purpose of early marriage or adult –child sex in other
varying contexts, remain unprotected from such sex trafficking by the State.30 Likewise,
the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and
Child Pornography 31 has been described as flawed by NGOs such as Focal Point on
Sexual Exploitation of Children. This is due, according to the aforementioned NGO, to
its ‘many references to the precedence of . . .national laws over international standards’,
thus, potentially hindering adequate implementation.32
Adult –Child Sex as an Example of Slavery and the Worst Form of Child Labour
The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children refers to trafficking of children as involving exploitation
such as ‘sexual exploitation’, ‘practices similar to slavery’, and ‘servitude’.33 Consider
then that adult –child sex can be characterised as the child’s sexual servicing of an adult
and thus as a form of child labour. This is the case given the power differential inherent in
the situation. That power differential is reflected in the child’s lack of political or social
status in the larger society and, most frequently, the child’s significant or even complete
psychological or other dependence on the adult. Recall also that, in any case, when it
comes to child sex trafficking, alleged consent of the child is no defence. The latter
point is stipulated, for instance, in the UN Office of the High Commissioner for Human
Rights Recommended Principles and Guidelines on Human Rights and Human Trafficking
(2002):
Guideline 8(1): States . . . should consider ensuring the definitions of trafficking in

children in both law and policy reflect their need for special safeguards and care,
including appropriate legal protection. In particular . . . evidence of deception,
force, coercion, etc. should not form part of the definition of trafficking where the
person involved is a child. (Emphasis added.)34
As has been noted in the previous section, however, international human rights law has not
provided legal protection to all persons under 18 sexually exploited in non-commercial
contexts. Many of the latter contexts being those, as discussed, condoned under domestic
law (i.e. situations involving adult – child sex where the child—person under 18—is
defined as an adult in respect to age of sexual majority). Indeed, unless coercion is
shown or there is some special circumstance,35 the law affords no protection to children
in such non-commercial sexual contexts (where the children are persons under age 18
but over the age of sexual majority). We are left then with unjustifiable contradictions
in the law. On the one hand, international human rights law stipulates that coercion
need not be shown, and indeed must not be used as an element in defining child sex traf-
ficking when dealing with commercial adult –child sex.36 Recruiting, harbouring, or
receipt of the child for the purpose of sexual exploitation, in a commercial context,
meets the definition of child trafficking under international law. The reverse is,
however, the case in regards to adult –child sex in non-commercial contexts. That
is, the child is not considered exploited, with some exceptions, unless coercion can be
proven and/or the child is under the age of sexual majority. Further, even where the defi-
nition of sexual exploitation is met in regards to the non-commercial sexual situation, the
child is yet not considered to have been trafficked. The definition in law regarding child
sexual trafficking is thus limited by the State to those adult – child sexual contexts that
are commercial in nature. This once again reflects a double standard that has more to
do with State interests and where the State is prepared to expend its resources as
opposed to children’s protection needs.
Child sex trafficking is an egregious instance of the oppression of children via the appli-
cation of adult power. This feature is a constant, whether the adult –child sex is condoned
by the State (as in non-commercial sexual contexts) or rejected by the State (as in commer-
cial sex trafficking involving organised crime). Indeed, age of consent laws that permit
lawful adult sexual access to children of a certain age represent an application of such
oppressive adult power. These laws provide for adult sexual access to persons of a
certain age but younger than 18 who themselves are unable to vote or to be elected. The
children involved have no say in the instigation, construction, or passage of such legislation,
which so profoundly impacts upon their human rights. It is noteworthy in this regard that
298 S. Grover
few, if any, State parties to the Convention on the Rights of the Child 37 have a voting age
and/or age for elected government office at the provincial (or State) or federal/national level
as low as the age of sexual consent and considerably below age 18.
It should be acknowledged that non-commercial adult – child sex situations meet the cri-
teria set out in the International Labour Organization (ILO) Convention on the Worst
Forms of Child Labour (1999)38 as being a ‘slave-like’ condition. It is this slave-like con-
dition that makes the work one of the ‘worst forms of child labour’. These forms of child
labour are prohibited under international human rights law. Adult – child sex, whether in a
blatantly commercial or non-commercial context is likely to interfere with the child’s edu-
cational performance and, more generally, his or her best developmental outcome. This is
the case also with rest of the ‘worst types of child labour’ under the ILO child labour con-
vention.39 It is for that reason, among others, that UNICEF has argued for raising the age
of sexual consent. The plight of the children situated in any manner of ostensibly non-com-
mercial sexual situations with adults is very much akin to the situation of the child dom-
estic who experiences sexual abuse. There is, in these instances, usually some type of more
indirect consideration in what this author has yet termed the ‘non-commercial’ sexual
exploitation of children. The children caught up in such non-commercial sexual exploita-
tion are often vulnerable and dependent on the adult for the necessities of life and for non-
financial forms of support. However, since the child is part of a household, and the adult
involved cannot be, or is not linked to organised crime, the authorities generally do not
count such children as among the sexually exploited or trafficked.40 These children are
thus among the invisible population of sexually exploited and trafficked children as are
a large proportion of child domestics.
Non-commercial adult – child sexual contact often occurs in the private context of child
domestic work. This problem has been documented by the ILO and other international
human rights and humanitarian organisations:
Almost without exception, children who are in domestic labour are victims of
exploitation, often of several different kinds. . . . They are exploited because they
generally have no social or legal protection. . . They invariably are deprived of
the rights due to them as children in international law, including the right to . . .
freedom from sexual abuse. (Emphasis added.)41
Where paid or unpaid domestic work exposes the child to sexual exploitation, that work
becomes one of the worst forms of child labour under the ILO Convention.42 It matters not
whether that domestic work and the sexual exploitation occurs in a family-type context or
not. It is noteworthy that the ILO Convention includes no stipulation regarding a minimum
age for paid or unpaid domestic work even outside the immediate family setting. The
failure of the international community to set a minimum age in this regard is a major contri-
butor in providing adults sexual access to children. The adult intent on sexual exploitation of
the child domestic is often at little risk of interference by the State given that younger children
are even less able to effectively assert their right to bodily integrity.
The following cautionary note from the ILO regarding assessing what are the worst
forms of child labour often applies equally well to the situation of children not officially
designated as domestics. This group would then include children providing sexual services
to an adult in a non-commercial context and likely also contributing some or most of
the work in respect of household chores: ‘Care should be taken so as not to allow an
over-extended notion of the term ‘family’ . . .to camouflage a situation which is tanta-
mount to the worst forms of child labor’ (emphasis added).43 An over-extended notion
of family then would also include an ongoing situation in which adult–child sexual
contact occurs in the non-familial household but the child may not necessarily be a domestic
servant. Just as with the unpaid or paid child domestic, children exploited sexually by
adults in other non-commercial contexts are most often left without legal protection.
The child caught up in a non-commercial adult – child sex situation thus frequently, for
all practical purposes, finds him or herself in a situation of bondage without legal recourse.
This is the case regardless of whether he or she is an alleged ‘willing’ participant. Note that
Article 3(d) of the ILO Convention on the Worst Forms of Child Labour in theory covers
non-commercial adult – child sexual contact. The child in such a situation is, in the final
analysis, providing sex labour for someone who is much more powerful in a number of
respects than is the child. That labour in turn is harmful to the child’s best interests in a
variety of ways. Thus, Article 3(d) of the ILO Convention defines the worst form of
child labour as ‘work which, by its nature or the circumstances in which it is carried
out, is likely to harm the health, safety, or morals of children’ (emphasis added).44
However, Article 4(1) of the ILO Convention on the Worst Forms of Child Labour
offers the State Parties an escape clause as follows: ‘The types of work referred to
under Article 3(d) shall be determined by national laws or regulations or by the competent
authority’ (emphasis added).45
It is striking then that child domestic labour is not specifically addressed in most
national law as a labour situation subject to the normal employment standards provided
for under domestic employment law.46 This is the case despite the fact that the child is
especially vulnerable to sexual exploitation and other hazardous labour conditions as a
paid or unpaid domestic. Indeed, the child domestic labourer is performing a form of
‘hidden work’ as is the child providing sexual services to an adult in other private
non-commercial contexts. 47 In both cases, the State is complicit in perpetuating the
bondage of these children through the lack of legal protection afforded to them.
Indeed, the State’s resistance in covering child domestic labour under national employ-
ment standards and its resistance in increasing the age of sexual consent rise to the
level of positive acts, promoting child sex trafficking within domestic borders. Com-
pounding the child’s inadequate legal situation is the fact that the ILO Convention on
the Worst Forms of Child Labour 48 does not explicitly address potentially hazardous
work of a child performing labour such as sexual labour in a private setting. Thus, the
ILO Convention neatly avoids providing any clear prohibitions on infringement of the
child’s human rights in such labour settings. At the same time, the CRC49 defers to dom-
estic law with regard to age of majority in respect of age of sexual consent. The result has
been a patchwork of inconsistent age of consent law ranging from age of consent in the
single digits to age 18, depending on the jurisdiction. Generally then, international human
rights law has not provided adequate legal protection for all persons under 18 from
exploitation via the performance of sex labour for an adult in a non-commercial
private setting.50
An age of majority below 18 with respect to commercial or non-commercial adult –
child sex serves to legislate away childhood. Such age of consent laws permit States to
sidestep the entire issue of their responsibility to protect children from sexual exploitation
in all contexts. In sum, with respect to the issue of child sexual exploitation, the same
States that are so self-congratulatory in having ratified the CRC51 have failed miserably
300 S. Grover
to honour the United Nations Declaration on the Right and Responsibility of Individuals,
Groups, and Organs of Society to Promote and Protect Universally Recognized Human
Rights and Fundamental Freedoms (1998).52 We turn next to a further consideration of
the age of sexual consent laws in order to reveal their contribution to the sexual exploita-
tion of children.
Challenging Defences to the Current Age of Sexual Consent Laws

The alleged defences to current age of sexual consent law have been multifold. The first
alleged defence has been that the age of consent laws are necessary to de-criminalise
sexual contact between minors, since a criminal record in this regard is not in the
child’s interests. The second closely related defence has been that the age of consent
laws are necessary in order to give form to society’s acknowledgement of the children’s
sexuality and their legal right to express their sexuality. Implicit in these defences is an
acceptance of adult – child sex, where the child (person under 18) has reached majority
as long as the following conditions are met: (i) the context is a non-commercial one,
(ii) the adult is not in a position of trust and (iii) there is ostensible consent from both
parties. This reasoning, however, is flawed in that the power issues involved in the
lawful adult –child sex (as per the aforementioned conditions) are in many respects indis-
tinguishable from those involved in the commercial sexual use of children. Even a bene-
volent adult sexual perpetrator is no less an exploiter of children’s vulnerabilities. This is
the case given that the children and adults are not on a level playing field with respect to
psychological, financial, and other resources. This point is acknowledged under inter-
national human rights law inasmuch as consent is irrelevant to the issue of determining,
as mentioned, whether some form of commercial sexual exploitation of the child by an
adult has taken place. Consent thus, even if proved, is not sufficient to eliminate the exploi-
tive nature of the adult –child sexual contact in a commercial context. Yet, when it comes
to non-commercial adult –child sexual contact, the State suddenly has an abiding interest
in deciphering the nuances of the situation in regards to consent. The State’s position in
regards to age of consent is, thus in fact, insidious and hypocritical. This is revealed by
the fact that while the State holds the child of a certain age competent to consent to
non-commercial sex with an adult, that same child may be deemed incompetent to
consent to child prostitution, participation in sex trafficking, or child pornography.
Clearly, the State’s reasoning in regards to age of consent laws has nothing to do with
an acknowledgement of the children’s right to express their sexuality. Nor does it have
to do with the notion that persons under 18 are at a certain point competent to make
decisions regarding sexual contact with another minor or an adult.
Indeed, if it were but a matter of acknowledging children’s right to express their sexu-
ality without being criminalised or sexually exploited, age of consent laws could be
constructed differently. These laws would then stipulate that sex between minors is
lawful within certain constraints. Such contact would likely be considered lawful, for
instance, where: (a) there is no coercion; (b) neither party is in a position of trust;
(c) neither party is unable, due to infirmity, or any other cause (i.e. such as a significant
age difference of two years of more) to give voluntary, informed consent; and (d) there
is no direct or indirect involvement of adults in the situation or in its instigation. Under
such a legislative scheme, sex between minors would normally not be addressed
through the criminal code. Rather, the case would be considered in regards to possible
child welfare or child protection concerns. Those concerns, then, may or may not exist in
any particular case. There might also be exemptions from a public criminal record, for
instance, where one of the parties is an adult, but fewer than two years older than the
child, and there are no other exploitative factors involved.53 The age of consent laws
would in all other cases provide for criminal sanctions for adults who engage in sexual
contact with persons under age 18. Note that such age of consent laws would have an
internal coherence and less arbitrariness as most sex between minors would be lawful
(though certain cases may raise child protection concerns to be handled by child
welfare and in rare instances give rise to a criminal complaint). Sex between minors
with no adult involvement in any respect and no commercial aspect would be lawful.
This would not be on the basis that the children are competent to give informed
consent, but rather on the basis that the child parties involved are equally powerless.
The equivalence in power of the parties renders the act non-exploitative and, therefore,
not unlawful. Contrast this with the current state of affairs regarding age of consent
laws where the age of sexual consent varies widely among States without any valid
means of assessing the child’s competence to provide fully informed and voluntary
consent to sex with an adult.
The question arises as to why the notion of sexual exploitation in international human
rights law has not been extended to adult – child sex even where: a) there is no financial or
other consideration; b) the child is above the age of consent; and c) the child is presumed to
have consented. The children involved in such situations are, after all, just as likely to
come from the same vulnerable groups as is the case for child prostitutes and children
involved in other commercial sexually exploitive situations. In addition, in many
instances, the non-commercial sexual contact with the adult is a precursor to the child’s
introduction to prostitution and other commercial sex crime-related activity. Alleged
consent, further, as discussed, is not the proper basis for determining the presence or
absence of child sexual exploitation (compare UN Recommended Principles and Guide-
lines on Human Rights and Human Trafficking, Guideline 8(1)54). Hence, consent attrib-
uted to the child cannot be the analytical filter used to separate adult – child sex that is
exploitive from that which is allegedly non-exploitive. It is the State’s burden to demon-
strate that non-commercial adult – child sex is in the child’s best interest, given that the
State is complicit in perpetuating such contact through current age of consent laws. In
this respect, recall also that Article 3(1) of the CRC requires that ‘in all actions concerning
children, whether undertaken by. . . courts of law, administrative authorities, or legislative
bodies, the best interests of the child shall be a primary consideration’.55 The State is not
able to meet the burden of establishing that age of consent laws as currently formulated are
in the child’s best interests. This is the case given that ‘consent’ and mental competence of
the child in making sexual decisions are not sufficient to preclude the child’s sexual exploi-
tation. It is untenable for the State to hold that children suffer no harm, exploitation, or
enslavement relating to sexual contact with an adult unless the child or a third party
receives financial or other consideration for the sexual service of the child.
The victimisation of children through adult – child sex is independent of the context (i.e.
the commercial sex trade or a non-commercial context). The oppression of the child is also
not a function of whether or not the adult’s intent is benevolent or malevolent or the child
is ‘willing’ or resistant to the extent possible. Rather, the child’s victimisation stems from
the powerless position of children in society, relative to adults. That powerless position is
reflected in the fact that children have no political power, be they younger or adolescents.
302 S. Grover
It appears that too many legislators are prepared to share the bedroom with children (given
the age of sexual consent laws), but not the voting booth. However, legislation such as age
of sexual consent laws cannot do away with the realities of the developmental character-
istics of children. In this case, those characteristics are associated with the vulnerability
relative to adults of children under 18 but above the age of sexual consent. All persons
under age 18, based on their youth and its correlate of lack of life experience and
power, are equally deserving of legal protection from sexual exploitation by adults.
That right to protection from sexual exploitation is thus a fundamental human right. As
such, the right must extend, then, to both commercial and non-commercial contexts.
Yet, UNICEF is left to convey to children the following message. It is a message unlikely
to inspire trust in the adult community’s commitment to protect children’s fundamental

human right to security of the person:
At present, however, there are no international laws or guidelines on the age of

consent, though the Convention on the Rights of the Child says that you have the
right to be protected from all forms of sexual abuse and exploitation. . . . The
Committee on the Rights of the Child . . . argues that countries with low legal age
of consent should raise it.56
Concluding Comments
One is reminded of the powerful and important words of the sociologist Kitzinger, who
writes of the socially constructed parameters of the concept of ‘childhood’:
We need to examine children’s material reality and recognise that children are vul-
nerable because they are children—childhood is a State of oppression.
. . .Powerlessness is not all in the mind. . . . Child abuse is not an anomaly but
part of the structural oppression of children. Assault and exploitation are risks
inherent to ‘childhood’ as it is currently lived. It is not just the ‘abuse’ of power
over children that is the problem but the existence and maintenance of that power
itself (pp.174 –178). (Emphasis added.)57
In this paper, the ‘existence and maintenance of. . .power’ held by adults permitting the
sexual exploitation of children has been discussed with reference to State complicity
via age of sexual consent laws. The reticence of States to address this complicity is
evident, for example, from the following description of State behaviour at the 1996
World Congress Against Commercial Sexual Exploitation of Children:
The subject of age has consistently been one of the most contentious issues in the
field of child rights, and it proved to be a subject of formidable controversy at the
World Congress as well. Indeed, . . .it was so controversial, in fact, that it was not
even placed on the conference agenda.58
As this author has noted elsewhere,59 there is no more justification in limiting the notion of
‘child’ in regards to protection from sexual exploitation60 to particular ages under 18 than
there would be to delimiting the notion of ‘person’ in the Universal Declaration of Human
Rights (1948).61 This paper has attempted to place the topic of age on the agenda in regards
children’s right under international law to protection from sexual exploitation in all con-
texts (commercial and non-commercial). Age of consent laws, as currently constructed,
permit adult – child sex (where child refers to persons of a certain age under 18). These
laws thus essentially eliminate legal protection for groups of children against sexual
exploitation, thus reinforcing the adult property interest in children.62 In order for the
child to establish a human rights violation, it becomes the child’s burden under the
current legal situation globally to demonstrate a lack of consent if the context is a non-
commercial one. This is despite the fact that alleged consent of a child under 18 should
be irrelevant in determining whether or not sexual exploitation has occurred.
Hanson and Vandaele make the critical point that ‘human rights [law] can be used to
affirm existing power relations and discourses’63 rather than to challenge them and stimu-
late social reform. As of yet, international human rights law addressing sexual exploitation
has served to maintain the existing power structure with regard to legitimising adult sexual
access to certain age categories of children in non-commercial contexts. What Devlin
refers to as ‘the silencing strategy of definitional closure’64 has been invoked in order
to make it appear that sexual exploitation is not inherent in adult –child sex due to the
power differential as long as the child is of age. That is, given the definition of ‘child’
in the age of consent laws, the individual—while ‘child’ in other legislative contexts—
is no longer child in regards to sexual availability. Devlin notes that ‘if human rights
are to be understood as a challenge to power, as a mode of resistance to domination,
then we must confront power in all its manifestations’.65
This paper has attempted to confront the domination of adults over children as a func-
tion of age of consent laws that serve to legitimise sexual exploitation of persons under 18
in diverse private, non-commercial contexts. The continuing failure of the international
community to address forthrightly the State’s complicity in sexual exploitation of the
child via age of consent law is a major obstacle to children’s realisation of their universal
human right to physical and psychological integrity.66
Notes
1. United Nations, Convention on the Rights of the Child. Adopted by the UN General Assembly, resolution
44/25 of 20 November 1989 and entering into force 2 September 1990. http://www.unesco.org.
2. The term ‘children’ is used here to refer to persons under age 18 as per the Convention on the Rights of the
Child (1989) definition in Article 1 but without the qualification regarding age of majority in domestic law
contained in Article 1. Thus, the term ‘child’ or ‘children’ as used in this paper includes also adolescents.
3. United Nations definition of ‘sexual exploitation’ from the United Nations Secretariat, Secretary General’s
Bulletin, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse’. http://
www.unhchr.ch. Issued 9 October 2003.
4. K. Landgren (Chief of Child Protection UNICEF), cited in S. Sullivan, ‘UNICEF’s Role in the Yokohama
Congress against Commercial Sexual Exploitation of Children’. http://www.unicef.org.
5. UNICEF, ‘State of the World’s Children 2005 Report: Children Under Threat’. http://www.unicef.org.
Most commonly, child marriage involves adult sexual access to children (persons under 18). There are,
however, less common situations arranged by adults where children are to marry each other while both
are still children. For statistics on child marriage see the aforementioned United Nations report.
6. UNICEF, in its 2005 State of the World’s Children: Children Under Threat report (note 5), p.99, notes that
the risk of HIV infection is much greater for girl children involved in premature marriage than for mature
women. This is due to the girl child’s higher risk for infection resulting from penetration-related injury
that facilitates infection. An additional factor is the girl child’s difficulty in negotiating safe sex with the
adult male given the large age differential.
304 S. Grover
7. Child prostitution here refers to sex with persons under age 18 in return for remuneration or any other con-
sideration.
8. United Nations Convention on the Rights of the Child. (note 1), Article 35.
9. United Nations Optional Protocol to the Convention on the Rights of the Child (CRC) on the Sale of Children,
Child Prostitution, and Child Pornography. Adopted by the United Nations General Assembly resolution A/
RES/54/263 of 25 May 2000 and entered into force on 18 January 2002. http://www.unhchr.ch.
10. Preamble to the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child
Pornography (note 9).
11. D.M. Hughes, ‘The Natasha Trade: The transnational shadow market of trafficking in women’, Special issue
of Journal of the International Affairs, Vol.53 (2000), pp. 625–651.
12. See V. Von Struensee, ‘Globalized, wired, sex trafficking in women and children’, Murdoch University Elec-
tronic Journal of Law, Vol.7 (2000), http://www.murdoch.edu.au for a discussion of the link between organ-
ised crime and the sex trafficking and prostitution of women and girls.
13. United Nations, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention Against Transnational Organized Crime,
Adopted by the United Nations General Assembly resolution 55/25, 15 November 2000 and coming into
force 25 December 2003. http://portal.unesco.org.
14. United Nations, Convention Against Transnational Organized Crime. Adopted by the United Nations
General Assembly resolution 55/25 on 15 November 2000. http://www.unodc.org.
Children (note 13), Article 3(d): ‘“Child” shall mean any person under eighteen years of age’.
Children (note 13), Article 3(a): ‘“Trafficking in persons” shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of . . . the abuse of power or of a position of vulnerability. . . to
achieve the consent of a person having control over another person, for the purpose of exploitation. Exploit-
ation shall include, at a minimum the exploitation of prostitution of others or other forms of sexual exploit-
ation, . . . practices similar to slavery . . .’ (emphasis added).
17. Ibid., Article 3(a).
18. The United Nations Subcommission on the Promotion and Protection of Human Rights Working Group on
Contemporary Forms of Slavery reported at their 27th session May 27–31, 2002 (Geneva) that child domes-
tics are at particular risk of sexual exploitation. http://www.antislavery.org.
Children (note 13).
20. Ibid. (note 13), Article 3(c).
21. Ibid.
22. Ibid. (note 13).
23. Ibid. (note 13), Article 4: Scope of Application.
24. Non-commercial adult sexual exploitation of children arises, for example, as a result of lawful premature
marriage, or due to age of sexual consent laws permitting adult sexual access to children inside or outside
of an adult–child marriage.
25. Child trafficking for sexual exploitation or any of a variety of other purposes can be either within domestic
borders or across borders (See N. Gallagher, ‘Sexual Exploitation: A Form of Slavery?’ KO’AGA
ROÑE’ETA Human rights: Issues and theory, Series VIII, (1999) Lauterpacht Research center for Inter-
national Law, Cambridge University http://www.derechos.org. It is clear that the concept of human traffick-
ing should not be limited to cross border activity. Article 35 of the Convention on the Rights of the Child
(note 1) in fact applies to both trafficking of children within or across borders for any purpose: ‘States
Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of,
the sale of or traffic in children for any purpose or in any form’. (Emphasis added.)
26. United Nations, Convention on the Rights of the Child, (note 1).
27. Ibid. (note 1), Article 34.
30. See S. Grover, ‘On Recognising Children’s Universal Rights: What Needs to Change in the Convention on
the Rights of the Child’, The International Journal of Children’s Rights, Vol.12 (2004), pp.259–271 for a
discussion of how deference to domestic law via the CRC Article 1 definition of ‘child’ exposes children
to various forms of exploitation. This qualifier in Article 1 of the CRC undermines the security of the
person guarantees in the Universal Declaration of Human Rights (1948), which apply also to children
[Universal Declaration of Human Rights. Adopted by the United Nations General Assembly by resolution
217A(III) 1948. http://www.unhchr.ch]. As well it allows for an infringement of the provisions against
national origin discrimination in Article 2 of the CRC (note 1).
31. Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography, (note 9).
32. Comments of the NGO Focal Point on Sexual Exploitation of Children to the UN Committee on the Rights of
the Child regarding State violence against the child. http://www.crin.org. Note that while the Optional
Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography, (note 9) defers
to the domestic law regarding age of sexual majority, this is not the case in regards the United Nations
Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, (note
13). The latter protocol defines ‘child’ at 3(d) as any person under the age of 18. It appears that the State
is prepared to use the broader definition of child only when its interests are threatened by organised crime
as the protocol is applicable only to organised criminal acivity.
Children (note 13), Article 3(a).
34. UN Office of the High Commissioners for Human Rights, ‘Recommended Principles and Guidelines on
Human Rights and Human Trafficking’, 2002. http://www.ohchr.org.
35. In some countries (such as Canada), if the adult is in a position of trust as normally defined in law, or the child
is disabled so as to increase his or her vulnerability, adult–child sex is prohibited by the criminal code (i.e. it
is unlawful for an adult to have sex with a person under 18 in such circumstances).
36. See United Nations, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women
and Children (note 13), Article 3(c) and the UN Office of the High Commissioners for Human Rights,
Recommended Principles and Guidelines on Human Rights and Human Trafficking (note 34), Guideline 8(1).
37. United Nations, Convention on the Rights of the Child (note 1).
38. International Labour Organization, C 182: Worst Forms of Child Labour Convention, 1999. http://www.
ilo.org.
39. Ibid.
40. If the child is below the age of majority in regards to age of sexual consent in the State involved, the child
may be considered sexually exploited but, given the non-commercial context, is not regarded as having been
trafficked.
41. International Labour Organization findings regarding child domestics is reported at the ILO website http://
www.ilo.org (June 2004). The child domestics referred to here include children who are in fact performing
domestic household chores and did not anticipate becoming a sex slave (paid or unpaid) as part of the bargain.
A proportion of these children sexually abused in such domestic labour jobs do go on, under varying circum-
stances, to become part of the commercial sex trade according to the ILO. See also the ILO report (2004)
Behind Closed Doors: Child Domestic Labour, available at http://www.ilo.org.
42. Ibid. Note that the ILO Convention exempts domestic work done for the child’s immediate adoptive or bio-
logical family from its regulatory scheme regarding minimum adequate employment standards.
43. International Labour Organization findings regarding child domestics (note 41).
44. Ibid. (note 41), Article 3(d).
45. International Labour Organization, C 182: Worst Forms of Child Labour Convention (note 38), Article 4(1),
defining what constitutes the worst form of child labour.
46. An exception to this is Sweden, for instance, which applies minimum working age regulations to child
domestics.
47. The child domestic can be considered someone performing ‘hidden work’ to the extent that the work is com-
pletely unregulated by the State. This is especially the case if the child is an unpaid domestic. As mentioned,
the child domestic may in some instances also be providing sexual service/labour in the household in which
he or she is in a situation of servitude.
48. International Labour Organization, C 182: Worst Forms of Child Labour Convention (note 38).
49. United Nations, Convention on the Rights of the Child (note 1), Article 35.
50. A non-commercial setting here refers to one that does not involve prostitution or other marketed forms of sex
labour linked to crime especially organised crime.
51. United Nations, Convention on the Rights of the Child (note 1), Article 35.
52. United Nations, Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. Adopted by the
United Nations General Assembly resolution 53/144 on 9 December 1998. http://www.ohchr.org.
306 S. Grover
53. For instance, the name of the adult aged 20 or less is held in police files to be activated for prosecution with a
graduated series of penalties only upon repeat offences involving sexual contact with a person or persons
under aged 18.
54. UN Office of the High Commissioners for Human Rights, Recommended Principles and Guidelines on
Human Rights and Human Trafficking (note 34).
55. United Nations, Convention on the Rights of the Child (note 1).
56. UNICEF, ‘Voices of Youth: Are you old enough?’ http://www.unicef.org.
57. J. Kitzinger, ‘Who Are You Kidding? Children, Power, and the Struggle Against Sexual Abuse’, in A. James
and A. Prout (eds.), Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological
Study of Childhood, (New York: The Falmer Press 1990), pp.157–183.
58. K. Mahler, ‘Global Concern for Children’s Rights: The World Congress Against Sexual Exploitation’,
Family Planning Perspectives, Vol.23 (1997) http://www.agi-usa.org.

59. S. Grover ‘On Recognizing Children’s Universal Rights: What Needs to Change in the Convention on the
Rights of the Child’ (note 30).
60. Sexual exploitation here refers, among other things, to sex trafficking within or across borders.
61. Universal Declaration of Human Rights (note 30).
62. See L. Bilsky, ‘Naming and Re-Categorization in the Law. Child Abuse as Slavery’, The International
Journal of Children’s Rights, Vol.5 (1997), pp.147–176 for a discussion of notions of child sexual abuse
and their relation to concepts of power and of a property interest in the child. Bilsky provides these as
examples of how legal categorisation impacts the possibility for social reform.
63. K. Hanson and A.Vandaele, ‘Working Children and International Labour Law: A Critical Analysis’, The
International Journal of Children’s Rights, Vol.11 (2003), pp.73–16 at p.76.
64. R. Devlin, ‘Solidarity or Solipsistic Tunnel Vision?’, cited in N. Stammers, ‘Social Movements and the
Social Construction of Human Rights’, Human Rights Quarterly, Vol.21(1999), pp.980–1008 at
pp.1007–1008.
65. Ibid., p.1007.
66. It is only relatively recently that the United Nations has addressed the issue of age of sexual consent. It has
done so in response to embarrassing scandals regarding the sexual exploitation of children in West Africa by
certain UN workers. The UN has now made it clear that sexual activity with children (persons under age 18)
is prohibited regardless the age of sexual majority or age of consent locally. That is, all such activity is con-
sidered to be sexually exploitive according to the UN Secretary-General’s Bulletin of October 9, 2003 regard-
ing ‘Special measures for protection from sexual exploitation and sexual abuse’ http://ochaonline.un.org.
This is the first acknowledgement by the UN that age of consent laws do not eliminate the sexually exploitive
element involved in adult–child sex and cannot, thus, legitimise the practice.

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The International Journal of Human Rights

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Children as Chattel of the State: Deconstructing

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Children as Chattel of the State:

There is a fine line between commercial and non-commercial sexual exploitation.

ISSN 1364-2987 Print/1744-053X Online/07/030293–14 # 2007 Taylor & Francis

Guideline 8(1): States . . . should consider ensuring the definitions of trafficking in

Challenging Defences to the Current Age of Sexual Consent Laws

to inspire trust in the adult community’s commitment to protect children’s fundamental

At present, however, there are no international laws or guidelines on the age of

Family Planning Perspectives, Vol.23 (1997) http://www.agi-usa.org.

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