children's civil rights

Hamilton02 at Hamilton02 at
Wed Apr 23 13:28:13 PDT 2008

The categories that are being blurred here are not the difference between  
civil rights and not.  There is a repeated error in this thread.   Sexual abuse 
is not sex for children and is not the opposite of consensual  sex -- it's an 
expression of violence by adults against children who cannot  defend 
themselves.  It's not a near-crime that could have been obviated if  only the child 
consented and/or enjoyed it; it's a serious crime.  
As a descriptive matter, I think that "emerging civil rights" is a far  
better descriptor of the increasingly better treatment of children under the law  
of abuse than any other available category.  We are in the midst of a  
transition from property to personhood, and the farther children have been  permitted 
to evolve from property and laborers-at-will to being persons who have  rights 
against sexual and physical assault by adults, the more they have been  able 
to demand governments protect them.   
Tinker may have been wrong in the sense that children's civil  rights should 
not include such a right.  But all rights are matters of  constitutional 
line-drawing -- here the issue is whether the child's right to be  free of violence 
is to be balanced against the parents' right to control the  child.  This 
bodily integrity right is a foundational right, surely  prior to rights to food, 
shelter, and other social welfare argued for by  others.  
In a message dated 4/23/2008 1:25:16 P.M. Eastern Daylight Time,  
emaltz at writes:

Discussing the efforts to prevent the sexual 
abuse of children as  vindicating the "civil 
rights" of children strikes me as fundamentally  
misleading.  We would not describe efforts to 
protect people  generally from physical harm as a 
vindication of civil rights, and in  principle the 
protection of children is no different.  Indeed, 
to  the extent that child sexual abuse is viewed 
differently, it is because  children are being 
denied  something which in adults some view as  
more akin to a civil right--the right to engage 
in consensual sexual  activity. I am not arguing 
that "consent" from children--however that term  
is defined--should be deemed effective, but 
simply noting that the  right to be free from 
abuse is of an entirely different  genre.

Moreover, discussing the prevention of sexual 
abuse with  civil rights generally invites the 
conflation of this issue with questions  such as 
those raised in Morse v. Frederick--a decision 
whose only flaw  was that it did not overrule the 
pernicious doctrine of Tinker v. Des  Moines.


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