Should the standards used to evaluate the claims of discrimination based on age vary depending on the field(s) of activity to which the norm applies? When to use age and when to use capacity based approaches.
As is well known, in response to the varying capabilities of children and adults lawyers tend to turn to two alternative approaches.
- “Aged based approach”. This takes the view that children under a particular age cannot engage in certain activities, possess legal rights, or have legal responsibilities imposed upon them.
- “Capacity assessment approach”. Here, an assessment is made of the child to determine whether they have sufficient maturity and capacity to make the decision in question. For example, in English law, a child, of any age can give effective consent to receive medical treatment, if a doctor finds that they have sufficient maturity to understand the issues raised.
This paper will explore two issues where it might be claimed that the way the law uses these approaches produces an illogical outcome.
I. Cases where both approaches are used in relation to the same or a similar issue.
Here is an example from English law:
Lucy, aged 14, may have sufficient maturity to consent to be given medication (using a capacity based test), but not old enough to be able to buy alcohol (using an age based test).
If we assume that the medication in question has similar risks to alcohol (or indeed greater) at first this seems illogical. There are, however, two reasons why the law might use an age based test for alcohol but a capacity based test for medication.
The rule of law requires that the boundaries of criminal law are defined reasonably precisely, so that people can predict with a degree of certainty, whether their conduct is criminal or not. Clear definitions also bring the benefit of efficiency, enabling those who administer the law to know whether or not a person should be prosecuted or convicted. Sometimes clarity in the law comes at the cost of nuance. A good example is a speed limit. If the speed limit is set at 30 mph then the driver knows precisely what speed they need to drive at to avoid breaking the law and violations can be easily identified and processed. With modern technology, the speed of the driver can be readily proven, and a conviction or acquittal therefore will follow with the utmost efficiency. Contrast the alternative, an offense defined as “traveling at a dangerous speed”. A driver would not know for sure if the speed they thought safe would be accepted as safe by a court. A police officer would have considerable discretion in deciding whom to arrest, and court hearings would get bogged down with lengthy disputes over whether or not the speed was dangerous. In the same way, defining criminal offenses using the aged based approach as opposed to the capacity assessment approach offers the benefit of clarity to potential defendants and prosecutors.
The benefit of clarity in prosecution also arises in cases involving sex offenses against children. As Baroness Hale in R v G explains, a fixed age of consent means a child victim is not required to attend court. They can avoid distressing cross-examination as to whether or not they consented. Such advantages may be seen as outweighing any countervailing concerns around the potentially over-inclusive nature of the regulation.
Applying this to our scenario, the aged based approach has a clear advantage for those selling alcohol. In a busy bar or supermarket, staff cannot be expected to do more than check the age of the person concerned. Similarly, prosecutors can clearly identify violations under an age based approach.
However, the benefits of an age based approach are much less apparent in the context of medical prescriptions. In a clinical setting, doctors do have the time to assess the capacity of their young patients. The need for a speedy assessment is lessened given the nature of a doctor-patient interaction. Further, in a borderline case, it is undesirable for doctors to feel deterred from prescribing medication for fear of a criminal conviction, while such deterrence in the context of a driver unsure of whether they are driving at a safe speed or a bar tender dealing with an apparently underage customer may be more appropriate. Finally, while the capacity assessment approach will make prosecutions harder, there may even be some merit in that. Due to the rigorous regulations and standards imposed on medical professionals it is unlikely that miscalculations within a capacity assessment will result in adverse outcomes for the child
2. Consent and the status of the other party
The status of the person interacting with the child can be important in determining whether an age or capacity approach is beneficial. Characteristics of a person who is well-positioned to conduct a capacity assessment include, (1) professional expertise and guidelines, (2) lack of bias, and (3) detachment or impartiality. In the context of medical treatment for example, a doctor is often in a possession of all the characteristic that enable a person to conduct a successful capacity assessment and is therefore well-positioned to determine whether the child has sufficient maturity and understanding to give legal consent to treatment. But, the same approach cannot be taken in relation to the bar tender. While a medical professional has the expertise to make the kind of nuanced assessment of the capacity of the child, a bar tender does not.
Similarly, in relation to sexual encounters, an ordinary person who wants to have sex with a minor has no skills or expertise to make an assessment of their minor partner’s capacity. Further, unlike a medical professional, they will be obviously biased in their assessment of capacity; the person at the start of a sexual encounter is unlikely to have the kind of cool detachment necessary to make an full assessment of capacity. While a doctor will have a set of professional guidelines to follow to ensure she has made an appropriate assessment the person wishing to have sex with an underage child has little to go on.
The law is, therefore justified in saying to a person who wishes to have sex with an underage person: even if you think your partner is sufficiently mature, you should not. You are not in a position to make that kind of assessment. Conversely, the law provides more discretion to a doctor, stipulating: if you wish to give medical treatment to a child and have determined this treatment to be in line with the appropriate guidance and that the child has capacity to consent: you may proceed.
Both clarity and the status of the person interacting with the child illustrate why in some cases it is appropriate for the state to use a capacity based test while others call for state-mandated age-based approach.
II. Cases where an age based criteria is used for some legal issues but not others.
Consider the following example: Rohan and Michael, both aged 12, have a quick consensual kiss behind the school bike sheds during lunchbreak. Both can be convicted of a sexual assault. At age 12 they both are old enough to be held criminally responsible for their act; but too young to be able to give legally effective consent.
If you are old enough to be held to account for your actions as a defendant at a criminal trial should you not be old enough to give effective consent if you appear as a victim? Surely once we select an age at which a person is mature enough to be responsible for their acts under criminal law consistency requires that it makes no different whether the person is a defendant or a victim? I suggest two reasons why applying separate approached for defendants and victims may not be as illogical as it might first appear.
1. The Challenge of Errors
In deciding whether to apply an age-based approach, and what age to set under this approach, or capacity assessment, four factors are important to consider:
- What are the percentages of “false positive” errors? In other words, how many people are incorrectly found to have capacity when they do not.
- What are the percentages of “false negative” errors? In other words, how many people are incorrectly found to lack capacity when they in fact have it.
- What are the consequences for the “false positive” group?
- What are the consequences for the “false negative” group?
The assessment requires a consideration of the likelihood of these errors and the severity of the consequences. For example, if there are disastrous consequences for the “false positive” group, but the impact on the “false negative” group are not too bad, then it is advisable to apply an age-based approach and select an age which has a low number of false positives, even if it has a higher number of false negatives. For example, when determining the age of consent to sex, the harm done to a group assessed as having capacity when in fact they do not is far greater than the group assessed as lacking capacity when in fact they do. The former are put at risk of rape, the latter at risk of delaying sexual experiences. In this context it is advisable to err on the side of deeming the competent incompetent than of deeming the incompetent competent.
If we were to change the scenario, the balance may come out differently. Imagine we set the age of consent for the COVID vaccine at ten. Supporters of vaccination might be relatively unconcerned if some consenting children are treated as having capacity and given the vaccination (even though they lack capacity in truth). Conversely, they would be much more concerned if children were refusing and denied the vaccine because they are deemed (wrongly) to have capacity
2. The difference in the moral roles played by consent
In this section I will explore the moral implications of both finding that a person gave effective consent, and that a person was criminally responsible. The model of consent I will adopt is that propounded by Michelle Madden Dempsey, who argues that consent is only needed when hypothetical person D’s act would otherwise be wrongfully harming another person’s well-being. You do not need consent if an act causes no harm. For example, looking at a person’s car does not require their consent. Consent, therefore, changes an act from a prima facie wrong to one that can be justified.
Consent provides that justifying reason. It does this by allowing D (if they wish) to assume that if V consents then the act is not, all things considered, contrary to V’s well-being. That is because D is permitted to rely on V’s assessment of their own best interests. This is particularly true in the area of sexual relations, because D has no reason to think a sexual act will be in V’s welfare, except for V’s own assessment as conveyed through V’s consent. We would not think much of D if they said “I think you will greatly benefit from having sex with me and I know better than you about that!” In effect where consent is effective Madden Dempsey claims that D is entitled to say:
This is [V]’s decision. He’s an adult and can decide for himself whether he thinks the risk is worth it. In considering what to do, I will assume that his decision is the right one for him. After all, he is in a better position than I to judge his own well-being. And so, I will not take it upon myself to reconsider those reasons.
This model provides a helpful explanation of what we are looking for with consent: that it gives D sufficient reason to rely on V’s assessment of V’s well-being. However, where D knows that V’s apparent consent is flawed, for example, it is based on a mistake, or is a result of significant pressure, then D cannot rely on it because D cannot take it as an assessment by V of their own wellbeing. Indeed, given that D is due to perform a prima facie wrongful act on V, D has a responsibility to ensure that V is in the position to make a proper assessment of their own well-being by giving actual consent.
This reveals why the age of consent issue is different from a capacity assessment in other contexts, such as age of criminal responsibility. Consent is about whether the child’s understanding is sufficient to justify a defendant performing an act which would otherwise be wrongful and criminal. Where the consent is to an act which is beneficial to the child (such as medical treatment) or where the question is around whether a child is responsible for their behaviour (such as cases of criminal responsibility) different issues arise. These are profoundly different and there may be good reasons why they would lead to different assessment of ages and tests for capacity in the area of age of consent and age of criminal responsibility.
Therefore, there are two reasons why in relation to the same issue a child may have capacity for some legal purposes, but not others. First, because the consequences of an capacity assessment vary depending on the legal question asked and second because capacity to consent in relation to a harmful act raises very different question to consent in a different context.
This paper has highlighted some reasons that may be used to explain why sometimes the law might use an aged based assessment and sometimes a capacity based assessment, even in relation to the same kind of decision. It has also sought to explain why, even in relation to the same issue, a different age might be used in different legal contexts.
This all said, in fact, I am highly sceptical of the claim that anyone has capacity, be they child or adult, for the kind of purposes that capacity is used for in the law. Indeed the fact that for children we need to reach for age based claims demonstrates the failures of capacity as a governing concept. I would prefer a legal system based on the fact that no one, of any age, is capacitous or autonomous. One that elevates values of care, dignity and respect, over and above autonomy and consent. However, we are nowhere near such a legal system.
[*] Jonathan Herring is a Professor of Law at the Faculty of Law, University of Oxford and is the DM Wolfe-Clarendon Fellow in Law at Exeter College, University of Oxford. His focus on how the law interacts with the important things in life: not money, companies or insurance; but love, friendship and intimacy. He works in Family Law, Medical Law and Ethics, Criminal Law and Care Law. He has written too many books including, Law Through the Life Course (BUP, 2021); Domestic Abuse and Human Rights (Intersentia, 2020); The Right to be Protected from Committing Suicide (Hart, 2022); Law and the Relational Self (CUP, 2000); Vulnerable Adults and the Law (OUP, 2017) and Caring and the Law (Hart, 2013).
 R v. G  UKHL 37, ¶ 44.
 See Michelle Madden Dempsey, Victimless Conduct and the Volenti Maxim: How Consent Works, 7 Crim. L. and Phil. 1, 11 (2013).
 Id. at 21.
 Jonathan Herring, Vulnerable Adults and the Law (2016); Jonathan Herring, Law Through the Life Course (2021).