Do Young Adolescents Need the Protection of Age-of-Consent Laws?

I had lunch yesterday with an economist friend of mine who was lamenting the fact that when a market fails to operate efficiently we sometimes advocate for policy intervention without stopping to see if that policy actually improves the outcome.  He was talking about his own work that looks at the adult outcomes of boys who spend time during their teen years in foster care, which is itself an extremely interesting topic. I thought we would look at a different topic for which a similar argument could be made: laws that limit the age at which an individual can consent to having sex, and the protection they provide.

Age-of-consent laws presume that adolescents lack the maturity to make healthy decisions when it comes to sex. Most countries have age-of-consent laws, but the age at which an individual can consent to sex varies from age nine in some countries all the way to age 20 in others. For a long time (in fact, for over 100 years) my country, Canada, had an age of consent of 14. Two years ago, the laws were changed under the assumption that younger adolescents (14-15) were less capable of making healthy choices about sexuality than older adolescents (16-17). Policies like these are costly—and not just in terms of enforcement. They also create hardship for those caught up in that enforcement. So there must be pretty good evidence that the benefits outweigh those costs, right?

Well, there is some mixed evidence that individuals who make an early “debut” into the world of sex have poorer educational outcomes later on, but the problem is that it is difficult to determine cause and effect—are those who have sex early more likely to under-achieve or are under-achievers more likely to have sex early?

There is new research on this topic, just released last week and using data from over 26,000 adolescents surveyed in high schools in British Columbia, which suggests that when it comes to making choices about sexuality the decisions of 14- and 15-year-olds seem no worse than that of 16- and 17-year-olds. The evidence also suggests that the children who are most exposed to risk are actually much younger than 14, in fact they more likely to be less than 12. The new laws, with an age of consent of 16, don’t protect these kids any better than the old laws with an age of consent of 14. So the new laws provide protection to adolescents who don’t need and leave the more vulnerable children equally unprotected.

Three percent of students in the study who had sexual intercourse had that experience the first time before the age of 12. Of those having sex at that early age, 40% report that first experience was with an adult over the age of 20. Compare this to students who had their first sexual experience at the age of 14, of those students only 1.3% report that their sexual partner was over the age of 20. In fact, only just over 3% report having had a partner over the age of 18. If we look at those who had their first sexual experience at age 15, this number increases to fewer than 6%.

The age group that lost their ability to consent to sex under the new laws are overwhelmingly have sex with people who are within their own age group; less than 2% of boys and 3-5% of girls had their first sexual experience with an adult who was more than 5 years older than themselves.  They were equally likely as the older (16-17) group to have sex under the influence of drugs or alcohol (which one quarter of them did with their most recent sexual experience). Males in the younger group were significantly more likely to report having used a condom in their last intercourse (83% compared to 74%) and younger females who were using a hormone contraceptive method were significantly more likely than the older group to use a condom as well. About 5% of both groups were involved in a pregnancy with no statistically significant difference between the age groups. There is likewise no statistically difference in the reporting of STIs.

The argument behind that law is that participating in sexual behavior has some potentially very serious adult consequences. It is tempting to argue that younger adolescents are less capable in assessing the risks take when they have sex. But, this evidence, at least, does not support this idea. There is some evidence that the 14-15 group experiences more forced sex, but this law is about consent and rape is a different issue. When it comes to consensual sex, the younger youth appear to make equally healthy decisions as older adolescents.