What Would Europe Say? The “Foley Affair” in European Perspective

Posted by John Rosenthal

The consensus in the “old” media seems to be that former Congressman Mark Foley’s sometimes salacious electronic communications with teenage interns threatens to demotivate the Republican base and usher in Democratic control of Congress. If this is so, it would be a highly ironic outcome. After all, what substantive argument does the Democratic Party have to offer on its behalf other than that America should be more like Europe – in virtually all domains – and that the Democrats would make it so? And what would be the properly “European” reaction to indiscretions like those of Mark Foley? As judging by the laws and mores of “old” Europe at any rate, the answer is indifference – if not indeed a studied amazement over the fact that American prudes should interfere with the Congressman and his protégés good fun.

In the first place, the legal age of consent is set significantly lower in most European jurisdictions than in the United States, such that actual sexual relations – let alone sexually suggestive communication – between an adult and teens the age of the congressional pages would not be illegal. Consider in this connection paragraph 2 of Article 82  (on “Sexual Abuse of Adolescents”; link in German) of the German Criminal Code:

A person older than 21 who abuses a person under 16 in that he or she

1. performs sexual acts on the latter person or lets the latter person perform sexual acts on him or her…

and thereby exploits the victim’s underdeveloped capacity for sexual self-determination, will be punished by imprisonment of up to three years or a fine.

On first glance, this statute might appear to set the age of consent at 16 and thus prohibit sexual relations between an adult and adolescents younger than that age. But this is to overlook the significance of the weasily qualifier “and thereby exploits the victim’s underdeveloped [fehlend; literally: “missing”] capacity for sexual self-determination.” The meaning of the phrase is that it is up to the courts to determine on a case-by-case basis whether such a “capacity for sexual self-determination” was present or not. The following paragraph 3, moreover, makes clear that the law is not as a rule supposed to be enforced. “In the cases covered by paragraph 2,” it specifies, “the crime will only be prosecuted if charges are filed, unless the authorities regard action to be in order given the particular public interest in a prosecution.”

The operative age of consent in German law is in fact set rather at 14. This means that sexual relations between adults and virtually all pubescent and post-pubescent teens are for all intents and purposes legal. In effect, only children are held to be underage. (The relevant law – § 176 StGB  – is titled “Sexual Abuse of Children” [Sexueller Mißbrauch von Kindern].)

There is, moreover, a movement in European law to extend such Germanic “permissiveness” across the continent. The proponents of such a development claim to be acting in the name of the “human rights” of teenagers – which is to say, more concretely, their “right” to have sexual relations with adults. The fact that a right of adults to have sex with young teens is thereby also secured is apparently supposed to be merely a by-product. Thus, for example, a 1995 Austrian dissertation on Sexuality, Youth Protection and Human Rights [Sexualität, Jugendschutz und Menschenrechte] by one Helmut Graupner bears the subtitle “On the right of children and adolescents to sexual self-determination”. The dissertation abstract leaves little room for confusion, stressing that the European Convention on Human Rights should be understood to protect “the right of children and adolescents to sexual self-determination comprehensively, namely both the right to effective protection from (unwanted) sex and the right to (wanted) sex.”  “General criminalization of sexual contacts by and with youths under 14 is admissible,” the author concludes, “Inadmissible are (age of consent) regulations banning consensual sexual relations by and with adolescents over the age of 14.”

It is of some interest to note that one of the members of the two-member jury that passed this dissertation was none other than UN Human Rights expert Manfred Nowak: the same Manfred Nowak who has accused the United States of practicing torture at its detention center in Guantanamo Bay and who has been conducting something of a campaign in recent months to have the center closed. Nowak has described [link in German] the Graupner dissertation as “the most comprehensive and carefully researched scientific contribution on the subject.”

And, finally, one would be amiss not to mention here the Green member of European Parliament, Daniel Cohn-Bendit. In his 1975 book The Great Bazaar [Der grosse Basar], Cohn-Bendit wrote the following about his experiences while working at a Frankfurt kindergarten some years before:

My constant flirtation with all the children soon took on erotic aspects. I could really feel how the little five-year-old girls had already learned how to come on to me….It happened several times that children would open my fly and begin to caress me….Their wishes presented me with some problems. I asked: “Why don’t you play with one another? Why have you chosen me and not other children?” But when they insisted, I caressed them nonetheless.

Despite the flurry of attention provoked by the re-discovery of these passages in 2001, just one year later Cohn-Bendit was made co-chair of the Green Party group in the European Parliament. He remains not only a member of parliament, but also a highly sought-after commentator on political affairs in both the French and the German media.

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