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Archives of Sexual Behavior, Vol. 29, No. 5, 2000
Sexual Consent1 : The Criminal Law in Europe and Overseas2 Helmut Graupner, J.D.3
What role can the criminal law play in the battle against child sexual abuse? Should sexual relations of and with, persons under a certain age be criminalized regardless of the circumstances, even if they are consensual (“age of consent,” “minimum age”)? Where should such a minimum age-limit be fixed? Should there be a special, higher age-limit for particular conditions (e.g.,“seduction,” “corruption”)? Should sexual contacts with minors within a relationship of authority be criminalized generally, or just if authority is abused? Should criminal proceedings be instituted ex officio or upon complaint only? Should authorities be provided with a power of discretion or should they be obliged to prosecute and sentence in each case? In answering these questions, it is highly beneficial to have a look across the borders to the solutions other countries have reached. This study presents an overview on the criminal law governing the sexual behavior of, and with, children and adolescents in all European jurisdictions and 1 This
study is based upon a paper presented at the East–West-Conference on Sexual Violence and Child Sexual Abuse, Charles University, Prague, 05-07.09.1996. It has also been published in German (Graupner, 1997c). 2 The information given in this article is based upon a thorough analysis of the respective provisions of the national criminal law and of the jurisdiction of the courts in each state. The author studied the text of the laws, the case-law of the courts, commentaries to the criminal law and other literature and sought information from the Ministries of Justice and from university law schools in the respective countries. The sources are too numerous to represent them here but detailed references to these sources and the full text of the laws are given in the country-by-country survey contained in Graupner (1995, 2, 359–748; 1997b, 2, 359–748). Where information is based on sources not given there, explicit references are given in the text here. Manuscript deadline was 12.12.1998. The author attempted to be as thorough and encompassing as possible. Due to the nature of such an extensive comparative law study, it is, however, never possible to exclude all possibilities of error, inaccuracy, misunderstanding, and deficiencies concerning up-to-date information. Therefore, the author referenced information in a way to facilitate the reader’s way back to the sources. Last update: 24.06.2000. 3 Dr. Helmut Graupner, attorney of law in Vienna, Austria, is vice president of the Austrian Society for ¨ Sex Research (OGS) and president of the Austrian lesbian and gay rights organization Rechtskomitee LAMBDA (RKL). Member of the Expert Committee for the Revision of the Law on Sexual Offenses appointed by the Austrian Minister of Justice in 1996. Correspondence may be addressed: P.O. Box 388, A-1150 Vienna, Austria; e-mail:
[email protected] Website: www.graupner.at. 415 C 2000 Plenum Publishing Corporation 0004-0002/00/1000-0415$18.00/0 °
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in selected jurisdictions outside of Europe. It shows which categories of offences exist and from which age onward young people can effectively consent to various kinds of sexual behavior and relations in the different countries. All states in Europe and all of the studied jurisdictions overseas have minimum age limits for sexual relations, and punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe, in one-half of the jurisdictions, consensual sexual relations with 14-year-old adolescents are legal; in three-quarters, with 15-year olds; in a majority, this is also the case when the older partner has started the relation (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions, such relations are legal from age 16 onward. Most states apply a higher age limit for contacts in relationships of authority. If the authority is not misused, the age limit in most jurisdictions is set between 14 and 16; if it is misused, between 16 and 18. Most states make no difference between heterosexual and homosexual relations. KEY WORDS: youth protection; youth rights; sexual offences; age of consent; child sexual abuse; pedophilia; homosexuality; criminal law; human rights.
INTRODUCTION It is not the intention of this study to provide final answers to the two questions posed. It should, rather, present a factual comparative law basis for further discussion of these problems. Comparing national law has become a crucial element in the European Court on Human Rights’ scrutiny of domestic legal regulations on their compatibility with human rights law. The Court held that laws that regulate (i.e., criminalize) sexual behavior in private do interfere with the right to respect for private life4 and that they are justified only if they can be considered necessary in 4 Dudgeon
vs. UK (1981), Norris vs. Ireland (1988), Modinos vs. Cyprus (1993) Laskey, Jaggard & Brown vs. UK (1997). The Court does not exclude minors from this rule. According to its case law, also (private) sexual behavior of minors falls under the protection of Art. 8 (1) ECHR (see note 5), and therefore respective state regulation, to be justified, has to meet the requirements set forth in par. 2 of Art. 8 (cf. Dudgeon v. UK 1981, par. 41f, 48f, 62). Also, the European Commission on Human Rights held that position (cf. Sutherland v. UK 1997, par. 35f). U.S. case law, however, seems to be divided over this issue. Whereas the Florida Supreme Court recognized a (state) constitutional right of privacy for minors to engage in sexual intercourse, thereby obliging the state to put forward justification for (criminal law) regulation of juvenile sexuality (B.B. v. State 1995: the court in this case moreover finally did not find the justification put forward well founded, and invalidated the contested law criminalizing sexual intercourse of minors “of previous chaste character”), the California Court of Appeals rejected the notion that, under the right to privacy enshrined in California’s Constitution, minors “have a constitutionally protected interest in engaging in sexual intercourse” (The People v. T.A.J. 1998; cf. also People v. Scott [Cal. SC 1994]). “While we do not ignore the reality that many California teenagers are sexually active, that fact alone does not establish that minors have a right of privacy to engage in sexual intercourse. We accept the premise that due to age and immaturity, minors often lack the ability to make informed choices that take into account both immediate and long-range consequences. While they may have the ability to respond to nature’s call to exercise the gift of physical love, juveniles may yet be unable to accept the attendant obligations and responsibilities. For all of these reasons we conclude there is no privacy right among minors to engage in consensual sexual intercourse,” the Court stated thereby exempting the state from establishing any (compelling)
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a democratic society for the protection of certain legitimate aims.5 In determining the “necessity” of a regulation, the Court frequently turns to a comparative analysis of the domestic laws. The more jurisdictions do not penalize a certain behavior, the less necessary the norm does appear and the stricter the review by the Court will be.6 So, it is the intention of this study to present such a comparative analysis and not a final answer to the two questions posed. However, in the final section, I comment on what I think to be the most desirable answer. Criminal law is the strongest weapon the state has in combating socially dangerous behavior, and states have always used it to fight child sexual abuse. Today, according to the case law of the European Court of Human Rights, they are even obliged to use the criminal law if effective deterrence cannot be achieved otherwise.7 However, although there is a basic consensus about the effectiveness and the necessity of the criminal law in this area, there is a good deal of controversy about the exact construction of the offences.8 This controversy mainly centers around two questions: 1. In enforcing the law, should the possibility be reserved to screen out cases of minor importance and cases in which no harm has been done? This question, on the one hand, arises out of the negative experience victims of sexual abuse have had with the criminal justice system and from the fear that in some cases criminal proceedings would do more harm than interest in the law which criminalizes all (penetrative) sex of (even between) minors under 18 (The People v. T.A.J. 1998: the case originated in the conviction of a 16-year-old adolescent for engaging in consensual sexual intercourse with a 14-year-old female juvenile). 5 Art. 8 European Convention on Human Rights reads: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 6 Dudgeon
vs. UK 1981, Norris vs. Ireland 1988, Modinos vs. Cyprus 1993, Open Door and Dublin Well Women vs. Ireland 1992, Marckx vs. Belgium 1979, Rasmussen vs. Denmark 1984, Abdulaziz et al. vs. UK 1985, Inze vs. Austria 1987, more references in Graupner (1995, Vol. 1, 77, 87f, 101; 1997b, Vol. 1, 77, 87f, 101). Remarkably, the Court often does not even require conformity between most of the states, but points to discernible international legal trends (Mazurek vs. France 2000). Legislation that contradicts such trends affords “very weighty reasons” to stand scrutiny (for a detailed analysis of the respective case law, cf. Graupner, 1995, Vol. 1, 75ff; 1997b, Vol. 1, 75ff). 7 Case X and Y vs. NL 1985, Stubbings & Others vs. UK 1996. 8 Also, the Council of the European Union did not proscribe specific detailed offences to the member states but remained in relatively vague terms and expressly stated that the terms (as child, sexual abuse, or unlawful sexual acts) used by it have to be interpreted according to the national legal systems (Council of the European Union, 1997, 2f). Also, the Committee of Ministers of the Council of Europe did not define the terms child and young adult used in its recommendations to the member states on the issue (Committee of Ministers, 1993, 22): “for the purposes of implementing the present recommendation in member states, the terms ‘child’ and ‘young adult’ are defined in accordance with the age limits laid down in national legislation” (ibid).
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good; on the other hand, the question arises out of the fact that each age limit—wherever it may be fixed—is arbitrary and that there always will be cases that do not require punishment. 2. Up to what age should the special protection reach? It is easy to hold that a sexual contact with a 5-year old is always abuse, but it is much harder to hold that a sexual relation with a 12-year old in each and every case is abusive, and it is definitely impossible to hold that a sexual contact with a 16-year old is abuse in each and every case. If the age limit is set too high, the law can easily come into conflict with the need of adolescents for sexual liberty and could easily turn from a means of protection to a threat itself for the sexual self-determination of juveniles. So, legislators have to find a reasonable and fair balance between the need of adolescents to protection from unwanted sex and their equally needed freedom to engage in self-determined sexual relationships. Aware of the problems, most jurisdictions have developed a multistage system, so that today we know mainly three kinds of provisions in this area: 1. Minimum age limits 2. “Seduction” provisions 3. Provisions on sexual contact in relations of authority This multistage system reduces the protection with the decreasing need for protection and the increasing capacity for self-determination.9 A majority of jurisdictions stick to this multistage system, only a minority to a single-stage system, which sets only one single minimum age limit. Below this limit, all sexual contact is illegal; once youths have reached this age limit, they are treated the same way as adults. This system occurs mainly in common-law countries and the states of the former Soviet Union. It is this division into a multistage and a single-stage system of youth protection that makes many differences between the several countries understandable. 9 The German Constitutional Court for instance held that a minor is “from the beginning and increasing
with his age (. . .) a personality protected by Art. 2 I of the German Constitution (the right to free development of one’s personality) in connection with Art. 1 I (the right to respect for human dignity).” His competence increases according as his ability to self-determination exceeds his need for protection. An especially discerning minor should be able to exercise rights on his own, which are central to his personality (“h¨ochstpers¨onliche Rechte”) (see BVerfGE 47, 46 (74) in: NJW 1978, 807; BVerfGE in: NJW 1982, 1375 (1378)). Similarly the case-law of Austrian Supreme Court. In Switzerland even the written law itself does contain this formula. According to Art. 19 II of the Swiss Civil Code “discerning minors” without the consent of their legal representative can exercise the “rights accorded to them on the basis of their personality” (details in Graupner, 1995, Vol. 1, 63f; 1997b, Vol. 1, 63f). Art. 11 of the new Swiss Federal Constitution (enacted 18th April 1999) expressly states: ‘Children and Adolescents have a right to special protection of their integrity and to promotion of their development. They are exercising their rights according to their ability to judge.’
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MINIMUM AGE LIMITS Minimum age provisions are provisions that generally declare sexual contact of, and with, persons under a certainage criminal. Such minimum age limits are an invention of the past 200–300 years. Prior to this, the individual biological sexual maturity was decisive. Sexual contact with immature children—consensual or not—has always been punished under the offences against (sexual) violence but consensual (heterosexual) relations with mature adolescents have been legal. With the exception of England and Wales10 and Saxony,11 a fixed minimum age has not been introduced before the 18th/19th century. Initially these limits were set very low, around the age of 10 to 12. In the 1920s the age limit in most European states was still at 12 or 13 (e.g., Denmark, France, Finland, Greece, Ireland,12 Italy, Spain, the United Kingdom,13 and in 11 Swiss cantons). The same is true for the United States and Australia, where the age limits have been raised only as late as in the 1950s, 1960s, or 1970s. It was not until 1988 in South Africa that the age limit for sexual relations between women and boys has been raised from 7 (!) to 16 (and the one for lesbians from 12 to 19). In the beginning, the minimum age limits just covered vaginal intercourse with girls. Only later were these offences extended to cover (heterosexual) relations with boys as well. Traditionally, girls, have been seen to be more vulnerable than boys. Against this historical background it is understandable why Estonia, Cyprus, and Scotland have different age limits for girls and boys (Table I). Today, all states in Europe and all of the studied jurisdictions overseas have minimum age limits (see Tables I and VIII). When “no limit” is indicated on the table, it must be said that these countries have no age limit only at first sight. If one studies the respective jurisdictions, one can see that in all these states there are age limits; just for some kinds of sexual conduct are there none. For such conduct, individual capacity to give informed consent is decisive or there is “depravation,” and the courts often look to the explicitly established limits for the other kinds of contact when determining if such a capacity is already given or if the conduct did “deprave.” So, the explicitly set limit (for some kinds of contact) is used analogously (for the other kinds of contact). Additionally, in some of the states of the former Soviet Union, the law enshrines the criterion “individual sexual maturity.” The courts, however, elaborated the rule so that it is irrefuttably presumed that under 14, everyone is immature. So, the minimum age in these countries de facto lies at 14, because adolescents older than 14 seldom are still biologically sexually immature. 10 Which
introduced an age limit as early as 1285 (at 12 years of age). in 1572, a fixed limit of 12 has been set for vaginal intercourse with girls. 12 Only for vaginal intercourse with girls was the age limit 16 (since 1885). 13 Only for vaginal intercourse with girls was the age limit 16 (since 1885). 11 Where,
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Graupner Table I. Minimum Age Limits for Sexual Relations (Europe)
I. No minimum age limits Estonia1 CIS2 Belorus Moldova Russia Ukraine Cyprus3 Finland4 Lithuania5 Romania6 MA Mf II. Minimum age limits—screening Albania Andorra Belgium Bosnia-Herzegovina Bulgaria CIS Belorus Georgia Moldova Russia Ukraine Croatia Cyprus Czechia Denmark Estonia F¨ar¨oer Finland Former Yugoslavia Kosovo Montenegro Serbia Vojvodina France Germany Gibraltar Greece Greenland Guernsey Hungary Ireland Isle of Man Italy Jersey Latvia Lithuania Luxembourg Macedonia Malta Monaco Netherlands
MA Fm
possible7 14 16 16 14 14
14 16 16 14 14
—/MT8 16 —/169 —/1410 —/MT11 14 —/13/1616 15 15 —/1418 15 —/1620
—/MT12 16 —/1613 —/1414 —/MT15 14 —/1317 15 15 —19 15 —/1621
14 14 14 14 15 14 1622 15 15 1624 14 15/1726 16/2128 13/1430 1632 14/1634 —/MT36 16 14 12 15 16
14 14 14 14 15 14 1623 15 15 1625 14 15/1727 16/2129 13/1431 1633 14/1635 —/MT37 16 14 12 15 16 (Continued )
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Norway Poland Portugal Romania San Marino Slovakia Slovenia Spain Sweden United Kingdom East and West Northern Ireland Scotland Vatican III. Minimum age limits—no screening possible Austria Iceland Liechtenstein Switzerland Turkey
MA Fm
16 15 14 —/1438 14 15 14 12 15
16 15 14 —39 14 15 14 12 15
16/1840 1741 16 12
16/1842 1743 MT 12
12/13/1444 14 1446 1648 15/1850
12/13/1445 14 1447 1649 15/1851
Note: MT: individual (biological) sexual maturity; MA Mf: Minimum age limit for sexual relations between a man and a girl; MA Fm: Minimum age limit for sexual relations between a woman and a boy. 1 In Estonia, a minimum age limit exists for vaginal intercourse with girls only. There is no age limit for all other sexual relations. Such relations (up to the age of 16), however, can be prosecuted if considered “depraving acts.” 2 These countries set an age limit for certain sexual contacts only (mostly for vaginal, anal, and oral intercourse). There is no fixed age limit for other kinds of sexual contact. Such contacts (up to a certain age) however can be prosecuted if considered “depraving acts” (cf. II. below). 3 In Cyprus, an age limit exists for vaginal intercourse with girls (16) and for anal intercourse (with boys and girls) only. For other sexual contacts, individual capacity to give informed consent is decisive. In spring 2000 Cyprus parliament passed a new law amending the section on sexual offences. The author could not yet get a translation of the Greek text of this new law. 4 The limit for sexual penetration (which is penetration by a sexual organ or directed at a sexual organ, Chapter 20 § 10 CC as amended by law EV 60/1998vp) is set at 16 (Ch. 20 § 6 CC as amended 1998). Other kinds of sexual relations with persons under 16 are outlawed only if the contact is “conducive to impairing his/her development” (ch. 20 § 6 CC as amended 1998). There is no fixed minimum age for such sexual contacts not considered being “conducive to impairing his/her development.” 5 In Lithuania, a minimum age limit exists for vaginal, anal, and oral intercourse only. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 16), however, can be prosecuted if considered depraving. 6 In Romania, a minimum age limit exists for vaginal intercourse with girls only. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 18), however, can be prosecuted if considered depraving. 7 These jurisdictions allow for screening of cases which do not require prosecution. This means that either prosecution authorities are being granted power of discretion to prosecute or not and to judge each case on its merits or that prosecution does require a complaint (mostly by the minor, his legal representative, or a youth protection authority). 8 For “sexual intercourse” (presumably vaginal, anal, or oral sex, with persons 16 or older), the limit is individual biological maturity. For sexual contacts not deemed to constitute “sexual intercourse” (with persons 16 or older), there is no fixed age limit. Such contacts (up to the age of 18), however, can be prosecuted if deemed “depraving acts.” (Persons under 16 can never be prosecuted under these offences.) (Continued )
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9 For
“sexual intercourse” (presumably vaginal, anal, or oral sex), the limit is individual biological maturity. For sexual contacts not deemed to constitute “sexual intercourse,” there is no fixed age limit. Such contacts (up to the age 16), however, can be prosecuted if deemed “depraving acts.” 10 The age limit for some sexual acts (vaginal, oral, anal) is 14; for others it is 14 only if the act is considered, “depraving.” Before the age limit for “sexual intercourse” was 16. It was lowered to 14 in 1998 (Art. 134, 135 CC; Rossijskaya gazeta, June 27, 1998 (#120) and personal communication with Igor Kon, Russian Academy of Science, Moscow). 11 For “sexual intercourse” (presumably vaginal, anal, or oral sex), with persons of 16 or older the limit is individual biological maturity (Art. 120 CC). For “sexual intercourse” with persons younger than 16 and for sexual contacts not deemed to constitute “sexual intercourse,” there is no fixed age limit. These contacts, if committed by a person of 16 or over, however, can be prosecuted if deemed “depraving acts” (Art. 121 CC) (Ministry of Justice, 1997). 12 For “sexual intercourse” (presumably vaginal, anal, or oral sex with persons of 16 or older), the limit is individual biological maturity. For sexual contacts not deemed to constitute “sexual intercourse” (with persons of 16 or older), there is no fixed age limit. Such contacts (up to the age 18), however, can be prosecuted if deemed “depraving acts.” (Persons under 16 can never be prosecuted under these offences.) 13 For “sexual intercourse” (presumably vaginal, anal, or oral sex), the limit is individual biological maturity. For sexual contacts not deemed to constitute “sexual intercourse” there is no fixed age limit. Such contacts (up to the age 16), however, can be prosecuted if deemed “depraving acts.” 14 The age limit for some sexual acts (vaginal, oral, anal) is 14; for others it is 14 only if the act is considered “depraving.” Before the age limit for “sexual intercourse” was 16. It was lowered to 14 in 1998 (Art. 134, 135 CC; Rossijskaya gazeta, June 27, 1998 (#120) and personal communication with Igor Kon, Russian Academy of Science, Moscow). 15 For “sexual intercourse” (presumably vaginal, anal, or oral sex) with persons of 16 or older the limit is individual biological maturity (Art. 120 CC). For “sexual intercourse” with persons younger than 16 and for sexual contacts not deemed to constitute “sexual intercourse” there is no fixed age limit. These contacts, if committed by a person of 16 or over, however, can be prosecuted if deemed “depraving acts” (Art. 121 CC) (Ministry of Justice, 1997). 16 In Cyprus, an age limit exists for vaginal intercourse with girls only. This limit is set at 16. There is no fixed minimum age for other kinds of sexual contact save anal intercourse. Hitherto Art. 171 CC outlawed anal intercourse without reference to the age of the partners (life imprisonment). On 21 May 1998, parliament passed a law abolishing this ban on anal intercourse (Criminal Law Amendment Law 40(1) of 1998). While the minimum age limit for homosexual anal acts has been set at 18 (Art. 171 CC), the limit for heterosexual anal intercourse has been chosen to be 13 (Art. 174 CC). 17 In Cyprus, an age limit exists for vaginal intercourse with girls (16) and for anal intercourse (with boys and girls) (13) only. 18 In Estonia, a minimum age limit exists for vaginal intercourse with girls only. There is no age limit for all other sexual relations. Such relations (up to the age of 16), however, can be prosecuted if considered “depraving acts.” 19 In Estonia, a minimum age limit exists for vaginal intercourse with girls only. There is no age limit for all other sexual relations. Such relations (up to the age of 16), however, can be prosecuted if considered “depraving acts.” 20 See note 4. 21 See note 4. 22 Anal intercourse is punishable with life imprisonment whatever the age of the partners. 23 Anal intercourse is punishable with life imprisonment whatever the age of the partners. 24 Anal intercourse is punishable with life imprisonment whatever the age of the partners. 25 Anal intercourse is punishable with life imprisonment whatever the age of the partners. 26 The limit for vaginal intercourse with girls and for anal intercourse (with boys and girls) is set at 17. For other kinds of sexual contact, the age limit is 15. 27 The limit for anal intercourse is set at 17. For other kinds of sexual contact, the age limit is 15. 28 The limit for anal intercourse is set at 21. For other kinds of sexual contact, the age limit is 16. (Continued )
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29 The
limit for anal intercourse is set at 21. For other kinds of sexual contact, the age limit is 16. cases, it is 14. cases, it is 14. the partners. 33 Anal intercourse is punishable with life imprisonment whatever the age of the partners. 34 In Latvia, the minimum age limit for vaginal intercourse is 16 (Art. 161 CC 1998). For other sexual contact, it is 14 (Art. 160 CC 1998). 35 In Latvia, the minimum age limit for vaginal intercourse is 16 (Art. 161 CC 1998). For other sexual contact, it is 14 (Art. 160 CC 1998). 36 In Lithuania, a minimum age limit (MT) exists for vaginal, anal, and oral intercourse only. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 16), however, can be prosecuted if considered depraving. 37 In Lithuania, a minimum age limit (MT) exists for vaginal, anal, and oral intercourse only. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 16), however, can be prosecuted if considered depraving. 38 The age limit covers vaginal intercourse with girls only. For other sexual contacts there is no express age limit. Such acts (up to 18), however, can be prosecuted if considered depraving. 39 The age limit covers vaginal intercourse with girls only. For other sexual contacts there is no express age limit. Such acts (up to 18), however, can be prosecuted if considered depraving. 40 For anal intercourse, there is an age limit of 18. 41 Anal intercourse is punishable with life imprisonment whatever the age of the partners may be. 42 For anal intercourse, there is an age limit of 18. 43 Anal intercourse is punishable with life imprisonment whatever the age of the partners may be. 44 The three limits apply to various kinds of contacts as follows: Age limit 12: applies to nonpenetrative sexual contact when disparity in age between the partners is not more than 4 years. Age limit 13: applies to penetrative sexual contact when disparity in age is not more than 3 years (but only in case of penetration with a part of the body, not in case of penetration with an object). Age limit 14: applies to (a) nonpenetrative sexual contact when disparity in age is more than 4 years, (b) penetrative sexual contact with parts of the body when disparity in age is more than 3 years, and (c) penetrative sexual contact with objects, whatever the age of the partners may be (Art. 206, 207 CC as amended by the Criminal Law Amendment Act, 1998 (BGBl. 153/1998)). 45 The three limits apply to various kinds of contacts as follows: Age limit 12: applies to nonpenetrative sexual contact when disparity in age between the partners is not more than 4 years. Age limit 13: applies to penetrative sexual contact when disparity in age is not more than 3 years (but only in case of penetration with a part of the body, not in case of penetration with an object). Age limit 14: applies to (a) nonpenetrative sexual contact when disparity in age is more than 4 years, (b) penetrative sexual contact with parts of the body when disparity in age is more than 3 years, and (c) penetrative sexual contact with objects, whatever the age of the partners may be (Art. 206, 207 CC as amended by the Criminal Law Amendment Act, 1998 (BGBl. 153/1998)). 46 Sexual contact (save vaginal intercourse) is not punishable if the age difference is no more than 2 years. 47 Sexual contact (save vaginal intercourse) is not punishable if the age difference is no more than 2 years. 48 Sexual contact is not punishable if the age difference is no more than 3 years. 49 Sexual contact is not punishable if the age difference is no more than 3 years. 50 The age limit of 18 covers vaginal and anal intercourse only. The minimum age for all other kinds of sexual contact is set at 15. 51 The age limit of 18 covers vaginal and anal intercourse only. The minimum age for all other kinds of sexual contact is set at 15. 30 The age limit is 13 when the older partner is not more than 16. In all other 31 The age limit is 13 when the older partner is not more than 16. In all other 32 Anal intercourse is punishable with life imprisonment whatever the age of
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The lowest age limit is set at 12 and the highest at 17.14 Mostly, the limits are set at 14, 15, or 16. The following table showsin which states consensual sexual relations (without “seduction” and out of a relationship of authority) are legal in a certain age group (cf. Table I): 14 15 16
51% (29–57) 72% (41–57) 98% (56–57)
So, one-half of the jurisdictions do not generally criminalize consensual sexual relations with 14-year olds and almost three-quarters do not with 15-year olds. Only a minority of jurisdictions established a general age limit of 16, and just one jurisdiction (Northern Ireland) is higher. When we look to which countries fixed the limit at 16 and which set limits that are lower, we are confronted with the two systems mentioned above (cf. I.). The countries that established the age at 16 mostly have a single-stage system (common-law countries, Luxemburg, Latvia, Moldova). They do not have special provisions on authority relations. Therefore, their general minimum age limit has to be valid for these more problematic relations as well. Once a juvenile has reached the age limit in these countries, he is put on the same footing with adults and enjoys no special protection against the misuse of authority. That is why in these countries the minimum age limit is higher than in countries with a multistage system. Also, there are a few countries with a multistage system that nevertheless have an age limit of 16. The characteristics of these are, however, that they allow for extensive screening so that the law need not be and is not enforced in each case (e.g., NL, where two-thirds of the cases are dropped; Andorra; Finland; Norway). So, jurisdictions with an age limit of 16 either established a single-stage system or allow for extensive screening or both.15 Screening is possible in nearly all states. That means that either authorities have a power of discretion not to instigate proceedings and judge each case on its merits, or that criminal proceedings can only commence after a complaint by the juvenile or his/her legal representative. Remarkably, those jurisdictions without any possibility to screen out cases set the age limit low, mostly at 14 (see Table I), and countries with an age limit of 16 grant wide-ranging possibilities for screening.16 The only exception is Switzerland, which combines an age limit 14 In England and Wales—as a rest of the old total ban (repealed in 1994)—a higher limit of 18 applies
to anal intercourse only. The same is true for the Isle of Man (21). The total ban on (heterosexual) anal intercourse is still in force in Gibraltar, Jersey, Guernsey, and in Northern Ireland. In Turkey, the higher age limit (of 18) applies to anal and vaginal intercourse only. In the UK the Criminal Law Amendment currently in the pipeline (see note 30) contains also a repeal of the higher age limit for heterosexual anal intercourse in England and Wales. 15 The only exception being Switzerland (cf. next paragraph). 16 In England and Wales 75% of the cases with 13- to 15-year-old girls are dropped. Also, with homosexual contacts most cases are dropped (Walmsley and White, 1979, p. 42). In the years 1990– 1992, only 9, 10, and 12 men over 21 have been prosecuted for homosexual contact with a young man under 21 (the then age of consent for homosexual conduct lowered to 18 in 1994) (House
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of 16 with the principle of legality17 and proceedings (always) ex officio.18 No other state has a legislation as strict as this. In some countries (e.g., Germany, Austria, Switzerland), the minimum age limit covers (nonpublic) sexual acts in front of children and youths (private exhibition) and incitement to masturbation. Most states do not have such offences. Private exhibition is not criminal in two-thirds of the jurisdictions, and incitement to masturbation not in 80%.19 Honest, not negligent error about the age removes liability in nearly all countries, with the only exceptions being the United Kingdom, Ireland, Italy, and Norway. In the majority of jurisdictions negligent error also removes liability; mens rea (criminal intent) is afforded. The penalties established are very diverse. They reach from 2 years in the United Kingdom (for vaginal intercourse with a girl under 16, but not under 13) to 21 years in Norway (for sexual relations with someone under 14). HOMOSEXUAL RELATIONS There has been an international trend developing toward equality of lesbians and gay men. The European Court of Human Rights ruled that a total ban on homosexual behavior violates the European Convention on Human Rights,20 and recently the European Commission on Human Rights held that a higher minimum age limit for homosexual conduct than for heterosexual violates the European Convention on Human Rights (Art. 8 & 14).21 The Commission rejected the arguments put forward in favor of a special age limit. It stated that current medical opinion is to the effect that sexual orientation is fixed in both sexes before the age of puberty,22 that the risk posed by predatory older men would appear to be as serious whether the victim is a male or female, and it denied that of Commons, 1994, p. 102). Also in the Netherlands about two-thirds of the cases are dropped; moreover, relations with minors over 12 can be prosecuted only on complaint (of the adolescent, his legal representatives, or the Council for Youth Protection). And as a result of extensive power of discretion granted to the prosecution authorities, there have hardly been any prosecutions for sexual relations with 14- and 15-year-old adolescents in Norway (personal communication Thore Langfeldt, World Congress for Sexology, Valencia, 1997). As the Netherlands, Portugal also(over 12) binds prosecution for (consensual) sexual relations with minors under the minimum age on a complaint (by the minor or his legal representative). But even some countries with an age limit lower than 16 do require a complaint: Greece, Hungary (heterosexual acts only), Italy (over 10), Malta, San Marino, Spain (also the state prosecutor can complain), Vatican. 17 Principle of legality means that police authorities are obliged to investigate, prosecutors to prosecute, and courts to convict in each and every case. No power of discretion is attributed to them. 18 Proceedings ex officio means that prosecution can take place without complaint or consent of the victim, its legal representative, or a certain institution or organization. 19 Recently, Portugal (1995) and Italy (1996) decriminalized incitement of children and youths (under 16) to masturbation (Graupner 1997e, 1997f). 20 Case Dudgeon v. UK 1981; Norris v. Ireland 1988; Modinos v. Cyprus 1989. 21 Case Euan Sutherland v. UK (appl. 25186/94, report 01.07.97). 22 Euan Sutherland v. UK (par. 59,64).
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“society’s claimed entitlement to indicate disapproval ofhomosexual conduct and its preference for a heterosexual lifestyle . . . could in any event constitute an objective and reasonable justification for inequality of treatment under the criminal law.”23 The United Nations Human Rights Committee held that a total ban on homosexual behavior violates the fundamental right to privacy (Toonen v. Commonwealth of Australia 1994). And in its concluding observations on the report of Austria under the International Convenant on Civil and Political Rights (ICCPR), the Committee declared higher age limits for homosexual as compared to heterosexual conduct to be a violation of international human rights law and called on Austria to repeal its respective law: “The Committee considers that existing legislation on the minimum age of consent for sexual relations in respect of male homosexuals is discriminatory on grounds of sex and sexual orientation. It requests that the law be revised to remove such discriminatory provisions” (Human Rights Committee 1998, par. 13).24 The World Health Organisation (WHO) deleted homosexuality from its International Classification of Diseases (ICD) in 1993. The parliamentary bodies of the Organisation for Security and Cooperation in Europe (OSCE),25 the Council of Europe (COE), and the European Union (EU) all demanded to end discrimination of homosexuals with the COE- and EU-bodies, calling on their member states to fully equalize homo- and bisexuals with heterosexuals before the law.26 An increasing number of states have not only repealed special offences against homosexual conduct, but have even further enacted antidiscrimination laws, outlawing discrimination of homo- and bisexuals,27 and/or legally recognize same-sex partnerships (cf. for extensive survey in Graupner, 1998a, 1998c, 2000). The Scandinavian countries (Denmark, Greenland, Norway, Sweden, Iceland) and the Netherlands introduced de facto (not de jure) marriage, “registered partnership,” of same-sex couples, France and Belgium introduced new institutes for legally recognized (homo- and heterosexual) partnerships in 1999 (France: Pacte de Solidarit´e Civil [PACS]; Belgium: Contrat de Cohabitation) (cf. for details in Graupner, 1998a, 1998c, 2000). In two recent cases the European Court on Human Rights held a ban on lesbians and gay men for service in the 23 Euan
Sutherland v. UK (par. 64f). study by Fernand-Laurent (1988) on behalf of the UN Commission on Human Rights (elaborated by appointment of the Economic and Social Council) called for an end of discrimination of homosexuals and for equal age of limits for homo- and heterosexual contact. 25 Former Conference for Security and Cooperation in Europe (CSCE). 26 For details, cf. Graupner, 1995, Vol. 1, 433ff; 1997b, Vol. 1, 433ff), European Parliament (1997, 1998a, 1998b, 1998c, 2000). 27 Norway (1981), France (1985, 1986), Denmark (1986), Sweden (1987), Ireland (1989), the Netherlands (1992, 1994), Austria (1993), Slovenia (1995), Spain (1995), and Luxemburg (1997). South Africa (1994, 1996), Ecuador (1998), and Fiji (1998) even enshrined the principle of nondiscrimination on the basis of “sexual orientation” in their national constitutions. For other examples outside of Europe and for sources, cf. the extensive survey in Graupner (1998a, 1998c, 2000). 24 The
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armed forces to be a violation of the right to respect for private life (Art. 8 ECHR) (Lustig-Prean & Beckett vs. UK 1999; Smith & Grady vs. UK 1999) and unequal treatment of homosexuals in respect to custody for children as discrimination on the basis of “sexual orientation” (Salgueiro da Silva Mouta vs. Portugal 1999). The Treaty of the European Community (ECT) (as amended by 1st May 1999) empowers the Community (within its limits of power) to enact measures against discrimination on the basis of (inter alia) “sexual orientation” (Art. 13 ECT). In January 2000 the Parliamentary Assembly of the Council of Europe called to expressly ban discrimination on the basis of “sexual orientation” in the European Convention on Human Rights naming such discrimination as “especially odious” (Parliamentary Assembly 2000). The European Parliament declared that it will not allow the accession of states to the European Union that in their legislation discriminate against lesbians and gay men (European Parliament, 1998b, 2000). In our field, one-half of the jurisdictions today set equal age limits (see Table II).28,29 However, it must not be overlooked that most of the countries with unequal limits—besides the United Kingdom and some smaller commonlaw jurisdictions—are states from the former Communist bloc. In the Eastern bloc, only Poland (since 1932), the GDR (since 1988), and Slovenia (since 1977) treated homo- and heterosexuality equally in their criminal law. All the other states had special provisions against homosexual conduct, and often a total ban. Disintegration of the Communist bloc has been the starting point for a remarkably rapid development towards equality and decriminalization in these countries. The impression given in Table II reflects just a snapshot of this development. Among the member states of the COE, a considerable majority (26 of 41) set equal age limits and only 4 of the 15 EU states (Ireland, United Kingdom,30 28 All
countries that took over the French Code Napol´eon or that oriented their criminal law after it, repealed the ban on homosexuality during the 19th century. Homosexuality has not been mentioned in the criminal law anymore, and homo- and heterosexual relations were treated equally. Special offences—as there are higher minimum age limits, bans on homosexual prostitution only or higher penalties in the case of homosexual acts in a public place—did not exist. The (uniform) age limits have been set very low, between 12 and 14 in most states. Some countries in the beginning even had no fixed limit. However, the countries that did not come under the influence of the Code Napol´eon kept the total ban on homosexuality up to the 20th century. Decriminalization in the 19th century has been confined to the Romanic jurisdictions. But also there discriminatory regulations have been reintroduced (temporarily), in most cases higher age limits for homosexual relations. Italy and Turkey have been the only countries in Europe that decriminalized homosexuality in the 19th century and ever since have been treating homosexual relations equally under its criminal legislation. But only Portugal (1912–1945), Spain (1928–1934), Serbia (1929–1994), and Romania (1948–1996) (and the Soviet Union 1934–1993 [year when Russia abolished the law; the Ukraine 1991, Estonia 1992, Latvia 1992, Lithuania 1993, Belarus 1994, Moldova 1995]) reintroduced the total ban on homosexuality (cf. for details Graupner, 1997b, 1998a). 29 In the case of seduction provisions, only two (F¨ ar¨oer, Greece) jurisdiction(s) do establish differences concerning minors (Table III.). Bulgaria, Cyprus, and Romania have general discriminatory provisions in this area (ibid). 30 In 1998 the House of Commons (by 336:129) passed a law equalizing the minimum age limit at 16 (Stonewall, 1998), the House of Lords, however (by 290:122), vetoed the law (Wockner, 1998).
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Graupner Table II. Minimum Age Limits for Homosexual Relations (Europe) R DMA
HTS
I. Uniform age limits for hetero- and homosexual relations Andorra n.k. 16 Belgium 1985 16 CIS Russia 1997 —/141 Ukraine 1991 —/MT2 Croatia6a 1997 14 Czechia 1990 15 Denmark 1976 15 Germany 1994 14 Finland 1998 —/167 France 1982 15 Former Yugoslavia Montenegro 1977 14 Vojvodina 1977 14 Greece 1951 15 Greenland 1978 15 Iceland 1992 14 Italy 1889 13/1410 Latvia 1998 14/1613 Luxembourg 1992 16 Malta 1973 12 Monaco n.k. 15 Netherlands 1971 16 Norway 1972 16 Poland 1932 15 San Marino 1865 14 Slovakia 1990 15 Slovenia 1977 14 Spain 1822 12 Sweden 1978 15 Switzerland 1942 1616 Turkey 1858 15/1819 Vatican 1929 12 R TB II. Different age limits—screening possible21 Albania 1995 Bulgaria 1968 CIS Belorus 1994 Moldova 1995 Cyprus31a 1998 Estonia 1992 F¨ar¨oer 1930 Gibraltar 1993 Guernsey 1983 Hungary 1961 Ireland 1993 Isle of Man 1992 Jersey 1990 Lithuania 1993 Macedonia 1996
HTS
HSF
HSM
16 16
16 16
—/143 —/MT4 1431a 15 15 14 —/168 15
—/145 —/MT6 14 15 15 14 —/169 15
14 14 15 15 14 13/1411 1414 16 12 15 16 16 15 14 15 14 12 15 1617 15 12
14 14 15 15 14 13/1412 1415 16 12 15 16 16 15 14 15 14 12 15 1618 15/1820 12
HSF
14 14
14 16/1822
—/MT24 —/1625 —/13/1632 —/1435 15 16 1639 14 15/1743 16/2144 1646 —/MT48 14
—/MT26 —/1627 —33 —36 18 16 16 14/1841 15 16 16 —/MT49 14
HSM 18 16/1823 —/1828 —/16/1829 —/1834 —/1637 18 1838 2140 14/1842 17 2145 16/2147 —/1850 1451 (Continued )
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Portugal Romania Serbia United Kingdom England and Wales Scotland Northern Ireland
HTS
HSF
1945 1996 1994
14 —/1454 14
14/1652 —/1855 14
14/1653 —/1856 14/1857
1967 1980 1982
16/1858 16/MT59 1760
16 16 17
1861 1862 1863
AH TV
HTS
HSF
HSM
12/13/1464 1467
12/13/1465 1468
12/13/14/1866 14/1869
HTS
HSF
HSM
14
14
—/1470
16
16
—/1671
14
14
—/1472
III. Different age limits—no screening possible Austria 1971 Liechtenstein 1988
IV. Total ban on homosexuality Bosnia–Herzegovina (M)69a CIS Georgia (M) Former Yugoslavia Kosovo (M)
HSM
Note: R DMA: Year of the repeal of the different age limit. In states where a different limit never existed, the year of the repeal of the total ban on homosexual behavior is given.73 R TB: Year of the repeal of the total ban on homosexual behavior; MT: Individual (biological) sexual maturity; HTS: Minimum age for heterosexual relations; HSF: Minimum age for homosexual relations between females; HSM: Minimum age for homosexual relations between males; (M): The total ban covers male homosexual relations only; (MF): The total ban covers male and female homosexual relations; n.k.: not known. Bold Member states of the European Union. Italics Member states of the Council of Europe. 1 The age limit for some sexual acts (vaginal, oral, anal) is 14, for others it is 14 only if the act is considered “depraving.” 2 For “sexual intercourse” (presumably vaginal, anal, or oral sex) with persons 16 or older the limit is individual biological maturity (Art. 120 CC). For “sexual intercourse” with persons younger than 16 and for sexual contacts not deemed to constitute “sexual intercourse,” there is no fixed age limit. Such contacts, if committed by a person 16 or over, however, can be prosecuted if deemed “depraving acts” (Art. 121 CC) (Ministry of Justice, 1997). 3 The age limit for some sexual acts (vaginal, oral, anal) is 14, for others it is 14 only if the act is considered depraving. 4 For “sexual intercourse” (presumably vaginal, anal, or oral sex) with persons 16 or older the limit is individual biological maturity (Art. 120 CC). For “sexual intercourse” with persons younger than 16 and for sexual contacts not deemed to constitute “sexual intercourse,” there is no fixed age limit. Such contacts, if committed by a person 16 or over, however, can be prosecuted if deemed “depraving acts” (Art. 121 CC) (Ministry of Justice, 1997). 5 The age limit for some sexual acts (vaginal, oral, anal) is 14, for others it is 14 only if the act is considered “depraving.” 6a Criminal Code 1997 (NN 110/97). 6b For “sexual intercourse” (presumably vaginal, anal, or oral sex) with persons of 16 or older the limit is individual biological maturity (Art. 120 CC). For “sexual intercourse” with persons younger than 16 and for sexual contacts not deemed to constitute “sexual intercourse,” there is no fixed age limit. Such contacts, if committed by a person of 16 or over, however can be prosecuted if deemed “depraving acts” (Art. 121 CC) (Ministry of Justice, 1997). (Continued )
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7 The limit for sexual penetration (which is penetration by a sexual organ or directed at a sexual organ,
Chapter 20 § 10 CC as amended by law EV 60/1998vp) is set at 16 (Ch. 20 § 6 CC as amended 1998). Other kinds of sexual relations with persons under 16 are outlawed only if the contact is “conducive to impairing his/her development” (ch. 20 § 6 CC as amended 1998). There is no fix minimum age for such sexual contacts not considered being “conducive to impairing his/ her development.” 8 See note 7. 9 See note 7. 10 The minimum age is 13 when the older partner is not more than 13. In all the other cases it is 14. 11 The minimum age is 13 when the older partner is not more than 13. In all the other cases it is 14. 12 The minimum age is 13 when the older partner is not more than 13. In all the other cases it is 14. 13 In Latvia the minimum age limit for vaginal intercourse is 16 (Art. 161 CC 1998). For other sexual contact it is 14 (Art. 160 CC 1998). 14 In Latvia the minimum age limit for vaginal intercourse is 16 (Art. 161 CC 1998). For other sexual contact it is 14 (Art. 160 CC 1998). 15 In Latvia the minimum age limit for vaginal intercourse is 16 (Art. 161 CC 1998). For other sexual contact it is 14 (Art. 160 CC 1998). 16 Sexual contact is not punishable if the age difference is no more than 3 years. 17 Sexual contact is not punishable if the age difference is no more than 3 years. 18 Sexual contact is not punishable if the age difference is no more than 3 years. 19 The higher age limit of 18 covers vaginal and anal intercourse only. 20 The higher age limit of 18 covers vaginal and anal intercourse only. 21 These jurisdictions allow for screening of cases which do not require prosecution. This means that either prosecution authorities are being granted power of discretion to prosecute or not and to judge each case on its merits or that prosecution requires a complaint (mostly by the minor, his legal representative or a youth protection authority). 22 16 applies when the older person is under 18, 18 applies when the older person is 18 or above (Art. 157 CC as amended by Criminal Law Amendment Act, 1997 (Official Gazette 62/1997)). 23 16 applies when the older person is under 18, 18 applies when the older person is 18 or above (Art. 157 CC as amended by Criminal Law Amendment Act, 1997 (Official Gazette 62/1997)). 24 In Belorus there is a minimum age limit (MT) for certain kinds of sexual contact (vaginal, oral, anal) only. For other sexual contacts there is no minimum age limit. Such contacts (up to the age of 18) can be prosecuted if considered “depraving.” 25 In Moldova a minimum age limit exists for certain kinds of sexual contact only. For other kind of sexual contact there is no fix minimum age. Such contacts can be prosecuted (up to 16) if considered “depraving acts.” 26 See note 24. 27 In Moldova a minimum age limit exists for certain kinds of sexual contact only. For other kind of sexual contact there is no fix minimum age. Such contacts can be prosecuted (up to 16) if considered “depraving acts.” 28 The limit of 18 covers anal and oral intercourse between men only. For other male homosexual contact there is no minimum age. Such contacts (up to age 18) can (only) be prosecuted if considered “depraving” (Art. 119 CC as amended 01.03.1994). 29 The age limit of 18 covers anal intercourse only, the age limit of 16 oral intercourse only. For other kind of sexual contact there is no fix minimum age. Such contacts can be prosecuted (up to 16) if considered “depraving acts.” 30 14 applies when the older person is under 18, 18 applies when the older person is 18 or above (Demsar, 1981). 31 In spring 2000 Cyprus parliament passed a new law amending the section on sexual offences. The author could not yet get a translation of the Greek text of this new law. 32 In Cyprus there is a minimum age for vaginal (penile) intercourse with girls (16) and for anal intercourse (HTS: 13, HS: 18) only. For other sexual acts, individual capacity to give informed consent is decisive. 33 In Cyprus there is a minimum age for vaginal (penile) intercourse with girls (16) and for anal intercourse (HTS: 13, HS: 18) only. For other sexual acts, individual capacity to give informed consent is decisive. (Continued )
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34 The
European Court on Human Rights in 1993 held that the total ban on anal intercourse (“carnal knowledge against the order of nature”) violates the right to respect for private life (Modinos vs. Cyprus). In 1998, parliament repealed the total ban but kept a special age limit of 18 for anal intercourse between males (Art. 171 CC as amended by the Criminal Code (Amendment) Law 40 (I) of 1998). For male homosexual acts not constituting anal intercourse there is no fixed minimum age limit. Individual capacity to give informed consent is decisive in these cases. 35 In Estonia there is a minimum age limit for vaginal intercourse with girls only. For other kind of sexual contact there is no fixed minimum age. Such contacts can be prosecuted (up to 16) if considered “depraving acts.” 36 In Estonia there is no minimum age for lesbian relations. Such contacts can be prosecuted (up to 16) if considered “depraving acts.” 37 In Estonia there is a minimum age limit for male homosexual anal intercourse only. For other kinds of male homosexual contact there is no fixed minimum age (Rebane, 1980, 387f ). Such contacts can be prosecuted (up to 16) if considered “depraving acts.” 38 Also, male homosexual relations between persons over 18 are offences if more than two persons are present. 39 There is a total ban on heterosexual anal intercourse regardless of the age of the partners. 40 Also, male homosexual relations between persons over 18 are an offence if more than two persons are present. 41 14 applies when the older person is under 18, 18 applies when the older person is 18 or above. 42 14 applies when the older person is under 18, 18 applies when the older person is 18 or above. 43 The minimum age limit of 17 covers vaginal intercourse with girls and anal intercourse with girls and boys. For all other kinds of (heterosexual and lesbian) contact there is a minimum age limit of 15. 44 On the Isle of Man the age limit for anal intercourse is fixed at 21; for all other kinds of heterosexual contact at 16. 45 Also, male homosexual relations between persons over 21 are an offense if more than two persons are present. 46 Heterosexual anal intercourse is punishable with life imprisonment regardless of the age of the partners. 47 The age limit of 21 covers anal intercourse only. For other male homosexual contact the limit is 16. Also male homosexual relations between persons over these limits are an offense if more than two persons are present. 48 In Lithuania there exists a minimum age limit for vaginal, anal, and oral intercourse only. This limit is fixed at the individual (biological) maturity for heterosexuals and lesbians and at 18 for homosexual males. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 16) however can be prosecuted if considered depraving. 49 In Lithuania there exists a minimum age limit for vaginal, anal, and oral intercourse only. This limit is fixed at the individual (biological) maturity for heterosexuals and lesbians and at 18 for homosexual males. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 16) however can be prosecuted if considered depraving. 50 In Lithuania there exists a minimum age limit for vaginal, anal, and oral intercourse only. This limit is fixed at the individual (biological) maturity for heterosexuals and lesbians and at 18 for homosexual males. There is no fixed age limit for other kinds of sexual contact. Such acts (up to 16) however can be prosecuted if considered depraving. 51 Criminal Code, 1996 (Chapter 19). 52 14 applies when the older person is under 18 (Art. 172 CP 1995), 16 applies when the older person is 18 or above (Art. 175 CP 1995). 53 14 applies when the older person is under 18 (Art. 172 CP 1995), 16 applies when the older person is 18 or above (Art. 175 CP 1995). 54 In Romania a minimum age exists for vaginal intercourse with girls only. For other heterosexual contact there is no fixed age limit. (Continued )
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55 The
age limit of 18 applies only when the older partner is 18 or older (Art. 200 par. 2 as amended by Criminal Law Amendment Act, 1996). If the partner is under 18, there is no fix age-limit. Such contacts (up to 18) can, however, be prosecuted if considered “depraving” (Art. 202 CC). 56 The age limit of 18 applies only when the older partner is 18 or older (Art. 200 par. 2 as amended by Criminal Law Amendment Act, 1996). If the partner is under 18, there is no fixed age-limit. Such contacts (up to 18) can, however, be prosecuted if considered “depraving” (Art. 202 CC). 57 The age limit of 18 covers anal intercourse; the limit of 14 all other kinds of sexual contact. 58 For anal intercourse the minimum age is 18. 59 For man/girl relations there is a minimum age of 16; for woman/boy relations the individual (biological) sexual maturity of the boy is decisive. 60 Anal intercourse is punishable with life imprisonment regardless of the age of the partners. 61 Also, male homosexual relations between persons over 18 are an offence if more than two persons are present. 62 Also, male homosexual relations between persons over 18 are an offence if more than two persons are present. 63 Also, male homosexual relations between persons over 18 are an offence if more than two persons are present. 64 The three limits apply to various kinds of contacts as follows: Age limit 12: applies to nonpenetrative sexual contact when disparity in age between the partners is not more than 4 years. Age limit 13: applies to penetrative sexual contact when disparity in age is not more than 3 years (but only in case of penetration with a part of the body, not in case of penetration with an object). Age limit 14: applies to (a) nonpenetrative sexual contact when disparity in age is more than 4 years, (b) penetrative sexual contact with parts of the body when disparity in age is more than 3 years, and (c) penetrative sexual contact with objects whatever the age of the partners may be (Art. 206, 207 CC as amended by the Criminal Law Amendment Act, 1998 (BGBl. 153/1998)). 65 The three limits apply to various kinds of contacts as follows: Age limit 12: applies to nonpenetrative sexual contact when disparity in age between the partners is not more than 4 years. Age limit 13: applies to penetrative sexual contact when disparity in age is not more than 3 years (but only in case of penetration with a part of the body, not in case of penetration with an object). Age limit 14: applies to (a) nonpenetrative sexual contact when disparity in age is more than 4 years, (b) penetrative sexual contact with parts of the body when disparity in age is more than 3 years, and (c) penetrative sexual contact with objects, whatever the age of the partners may be (Art. 206, 207 CC as amended by the Criminal Law Amendment Act, 1998 (BGBl. 153/1998)). 66 The four limits apply to various kinds of contacts as follows: Age limit 12: applies to nonpenetrative sexual contact when disparity in age between the partners is not more than 4 years. Age limit 13: applies to penetrative sexual contact when disparity in age is not more than 3 years (but only in case of penetration with a part of the body, not in case of penetration with an object). Age limit 14: applies to (a) nonpenetrative sexual contact when disparity in age is more than 4 years, (b) penetrative sexual contact with parts of the body when disparity in age is more than 3 years, and (c) penetrative sexual contact with objects, whatever the age of the partners may be (all three varients with the exception of male homosexual contact with partners of 19 and over; see below). (Art. 206, 207 CC as amended by the Criminal Law Amendment Act, 1998 (BGBl. 153/1998)). Age limit 18: applies to all male–male homosexual contact when the older partner is 19 or over (Art. 209 CC). 67 Sexual contact (save vaginal intercourse) is not punishable if the age difference is no more than 2 years. 68 Sexual contact (save vaginal intercourse) is not punishable if the age difference is no more than 2 years. (Continued )
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69a The
international Lesbian and Gay Association (ILGA) on its homepage (http://www.ilga.org/ Information/legal survey/europe/bosnia herzegovina.htm) with reference to information supplied by the Swedish embassy in Sarajevo reports that the Federation of Bosnia-Herzegovina (but not the Republika Srpska) on 28th November 1998 should have introduced a new Penal Code repealing the ban on male-male anal intercourse. The author however could not yet verify that information. 69b 14 applies when the older person is under 18, 18 applies when the older person is 18 or above. 70 The total ban covers anal intercourse between men only. For other male homosexual contact, the minimum age is 14. 71 The total ban covers certain kinds of male homosexual contacts only. For other sexual contact, there is a minimum age of 16. 72 The total ban covers anal intercourse between men only. For other male homosexual contact, the minimum age is 14. 73 Following the French Revolution, numerous European countries decriminalized homosexual relations and did establish uniform minimum age limits for hetero- and homosexual relations (mostly the age of individual maturity or 12 to 14). With the exception of Italy and Turkey only, all of these jurisdictions (which decriminalized homosexuality in the 18th or 19th century) did (for some time) reintroduce discriminatory legislation in the 20th century (for details, see Graupner, 1998; 1997b, 2, 359ff). The years shown in the table therefore do indicate the year from which on uniform age limits (without interruption) have been in force until today (that is, the year when a total ban has been repealed and uniform age limits established or when prior unequal limits have been equalized).
Portugal,31 and Austria32 ) still have a higher age limit for homosexual conduct. SEDUCTION Most jurisdictions do not have a provision on “seduction” of youths (see Table III). The states that do have such provisions have mostly set lower minimum age limits: at 12, 14, or 15. Just three states combine an age limit of 16 with an additional provision on “seduction,” as can be seen from Table III. In most jurisdictions the offense is restricted to certain forms of “seduction,” and certain means are afforded. The European Parliament immediately thereafter expressly welcomed the decision of the House of Commons and deplored the veto by the House of Lords (European Parliament, 1998b). In 16th December 1998 the House of Commons again passed the law, and, on 13th April 1999, the House of Lords, again vetoed it. After the House of Commons for a third time passed the law on 11th February 2000, the House of Lord, on 11th April 2000, passed the law in the second reading. The law however still deserves a third reading in the House of Lords. 31 Portugal repealed all special laws against homosexual behaviour in 1982 and since 1945 established an equal age limit of 16. The current inequality results from a lowering of the minimum age limit in 1995 for heterosexual contact only (from 16 to 14). The following inequality between hetero- and homosexual contacts has been criticized in the literature (Pizarro Beleza, 1996, 27). 32 See Graupner (1997d). On 27 November 1996, Austrian parliament voted on the repeal of the law. The repeal failed on one vote: 91 MPs voted in favor, 91 against. Within 1 12 years (between 8 April 1997 and on 12 December 1998), the European Parliament four times urgently called on Austria to repeal this law (European Parliament, 1997, 1998a, 1998b, 1998c). It did so again in spring 2000 (European Parliament, 2000).
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Graupner Table III. “Seduction” (Europe)
I. No laws against “seduction” Albania Austria Belgium CIS Belorus Georgia Moldova Russia Ukraine Czechia Former Yugoslavia (3 jurisdictions additional to Slovenia) France Gibraltar Greece (heterosexual and lesbian relations) Guernsey Hungary Ireland Isle of Man Jersey Latvia Lithuania Liechtenstein Luxemburg Malta Norway Poland Slovakia Slovenia Switzerland United Kingdom East and West Northern Ireland Scotland Vatican Age (years)
G
Sex, cont.
II. Laws against “seduction”—screening possible1 Andorra 18 MF All Bulgaria
—
Mm
All
Cyprus2 Denmark3
— 18
Mm MF
AI All
F¨ar¨oer
18/214
MF
All
Finland
18
MF
All
Former Yugoslavia: 4 jurisdictions
18
Mf
VI
Means afforded “Deception ”; “Abuse of a superiority based on authority or situation” “Against payment”; “Incitement to perversion” “Indecent proposals” “Gross abuse of a superiority based on age and experience” “(Gross) abuse5 of a superiority based on age and experience” “Promising or giving remuneration”6 ; “Taking advantage of immaturity”7 “False promise of marriage” (Continued )
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G
Sex, cont. All
Germany
16
MF
Greenland
18
MF
Italy Monaco
16 21
MF F
Netherlands9
18
Portugal Romania
San Marino
16 18 —10 —11 21
bM F MF Mf Mm Ff Mf
Spain
—
MF
Sweden
16 —/1812
MF MF
Turkey
“Girls”13
Mf
Means afforded
“Practising on a position of constraint”; “Against remuneration”; “Practising on lacking capacity to sexual self-determination” All “Gross abuse of a superiority based on age and experience” All “Against remuneration”8 All “False promise of marriage or deceitful acts” All “Money and goods”; “Abuse of superiority”; “Deception” VV “Practising on inexperience” VI “False promise of marriage” All — All — All “Promise of marriage under deception over one’s marital status” All “Abusing a manifest situation of superiority which restricts the victim’s sexual liberty” All “Deception” All “Against remuneration”; “To the participation in pornographic productions” “Defloration” “False promise of marriage”
III. Laws against seduction—no screening possible Greece 17 Mm All Iceland 16 MF All
— “Deception, gifts or other ways”
Note: Age: “Seduction” is punishable up to the age as given. G: “protected” gender; M: Law covers “seduction” of males only; F: Law covers “seduction” of females only; MF: Law covers “seduction” of males and females; Mf: Law covers “seduction” of females by males only; Mm: Law covers “seduction” of males by males only; Mf: Law covers “seduction” of females by females only; bMF: Law covers “seduction” of “blameless” males and females only. Means afforded: Only “seduction” by the mentioned means is punishable; Sex cont: Punishable is only “seduction” to: AI: anal intercourse; OI: oral intercourse; VI: vaginal intercourse; All: all sexual contacts. 1 These jurisdictions allow for screening of cases which do not require prosecution. This means that either prosecution authorities are being granted power of discretion to prosecute or not and to judge each case on its merits or that prosecution does require a complaint (mostly by the minor, his legal representative or a youth protection authority). 2 Art. 171-174A CC as amended by the Criminal Code (Amendment) Law 40 (I) of 1998. 3 The law is hardly ever enforced. 4 Heterosexual “seduction”—18; Homosexual “seduction”—21. 5 Heterosexual “seduction”: the abuse must be “gross”; Homosexual “seduction”: the abuse need not be “gross.” 6 Art. 20:8 CC (as amended by law EV 60/1998 vp-HE 6 ja 117/1997 vp). 7 In 1998, the following provision was introduced: “Section 5 Sexual Abuse (1) A Person who abuses his/her position and entices one of the following into sexual intercourse, into another sexual act (Continued )
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essentially violating his/her right of sexual self-determination, or into submission to such an act, . . . 2. a person younger than eighteen years of age, whose capacity to independently decide on his/her sexual acting is essentially weaker than that of offender’s owing to his/her immaturity and the age difference between the parties, where the offender blatantly takes advantage of that immaturity . . . shall be sentenced for sexual abuse to a fine or to imprisonment for at most four years” (Ch. 20 CC). 8 Art. 600bis CP as amended by law 269 (02.08.99). 9 The law is hardly ever enforced. 10 According to Art. 200 par. 4 CC (as amended by Criminal Law Amendment Act, 1996), seduction into homosexual contact is a criminal offence whatever the age of the partners maybe. 11 According to Art. 200 par. 4 CC (as amended by Criminal Law Amendment Act, 1996), seduction into homosexual contact is a criminal offence whatever the age of the partners maybe. 12 In 1998, Swedish parliament passed a law outlawing sexual contacts “against remuneration” regardless of the age of the partners. Only the paying partner will be committing an offence. The law came into force 01.01.1999 (Ministry of Labour, 1998; Austria Press Agency, 1998). 13 The law does not set a fixed age limit; it just speaks of the defloration of “girls.”
Generally, we can speak of two types of “seduction provisions”: an older one and a more modern type. The older type covers all kinds of “seduction” regardless of the means employed (see Greece, Iceland, and Germany before 1994). Under such laws, each sexual contact with an adolescent is rendered criminal if the older partner initiated to the contact. However, relations are complex, and in most cases it is not clearly discernible who initiated to which sexual contact. Moreover, the quality of a relationship does not really depend on who initiated a contact. So, those general seduction provisions emphasizing on who took the initiative to the contact often lead to a “moralizing” court practice that protects more traditional moral norms than self-determination and autonomy of the adolescent. “Seduction” provisions that focus on the “false promise of marriage” also belong to this type of offences. The more modern type of “seduction” provisions is restricted to certain constellations. This type aims to protect adolescents over the general age limit against certain interferences with their sexual self-determination, interferences that do not reach the intensity needed for the enforcement of the offences on sexual violence. An example of this more modern type of seduction provisions is the German law with its three constellations “practising on a position of constraint,” “against remuneration,” and “practising on lacking capacity to sexual self-determination” (Art. 182 CC).33 This modern type of law is based mainly on the convictions of lawyers. During the hearings in both chambers of the German parliament, scientists of other fields (physicians, psychologists, psychotherapists, criminologists, sexologists, and social workers working in projects for teenage prostitutes) opposed the law. They expressed the opinion that in the case of adolescents over 14 years old, the law cannot contribute to the solution of the problems involved and they feared that 33 Cf.
also the similar provisions in Finland, Italy, and Portugal.
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the law would do more harm than good to the adolescents. Although the lawyers focused on the “immaturity” of 14- and 15-year-old adolescents and their need for protection against undue influences, the other experts pointed out that adolescents of 14 and over are sufficiently able to cope with such influences and emphasized their right to sexual self-determination. They took the view that this age group requires the protection of the criminal law only against the use of force and coercion and against misuse of a relationship of authority, and they feared that criminalization beyond that would endanger the sexual self-determination of adolescents. Although they acknowledged that problematic situations could occur that bear the potential of leading to negative experiences, they were of the opinion that neither does the (attempted) eradication of all negative experiences further a positive psychosexual development, nor are the criminal law and criminal investigations apposite means to solve the problems connected with such situations. If someone exerts pressure on an adolescent who finds himself in a position of constraint, these experts argued, it would be of no help for him if the perpetrator will be jailed sometimes. He will go with him anyway. Effective help could only be offered by offering the adolescent real alternatives, by eradicating the position of constraint. If an adolescent runaway unbureaucratically has access to a sleeping place, food, and care, he will not feel the constraint to go with someone who offers him these things in exchange for sexual services. The state could not solve his own social deficiencies by the criminal law, they explained. And where “tricks” do not practice from a position of constraint, sex against remuneration (per se) did not violate the self-determination and autonomy of the adolescent. Youth prostitution, as the experts pointed out, is a social problem that must be solved by social work and not by the criminal law. Criminalization drives it underground and makes the young prostitutes, facing the state as persecutor, unavailable for social and AIDS-prevention work. In this respect, the experts pointed to the fact that teenage prostitutes (i.e., males) often perceive the tricks as “co-conspirators” in their effort to life a self-determined life apart and independent from (often negatively experienced) traditional authorities and structures (like parents, school, work, etc.), and that not infrequently they engage in symbiotic relationships with their tricks. Moreover, charging or accepting remuneration for sex is an easy and frequent way for gay and bisexual adolescents to live their (hidden) homo- (or bi-) sexuality without having to consciously accept their (homo- or bi-) sexual orientation right away. Sex for remuneration becomes a way to cope with the coming-out process (“coming-out-prostitution”). The experts argued that the risks of teenage prostitution cannot be solved against the youths involved, but only in cooperation with them by offering effective support and not by tempting the adolescents (who often enough find themselves on the respective verge) into delinquency, by offering them an effective and promising means for blackmail. As regards the third alternative “practising on lacking capacity to sexual self-determination,” which, according to the lawyers, is intended to protect developmentally retarded adolescents, the fear was expressed that courts generally (without special evidence to the contrary)
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would assume 14- and 15-year olds to be incapable of sexual self-determination; or, if not, the verdict would depend on complex expert opinions on the psychosexual development of the adolescent, whose outcome will not be foreseeable and would hurt the adolescent whatever the outcome may be: whether the prosecution is confirmed, who wants to present the young as inexperienced as can be (“innocent”), or the defense, who tends to present him as experienced as possible (“corrupted”). Both can be injurious to an adolescent of that age: to be labeled as an inexperienced “sissy” or as a promiscuous “hussy”. The risk is high, the experts argued, that the adolescent leaves the courtroom highly offended, especially when he did not consent to the proceedings against his partner. To sum up: The nonlegal experts did accept the concerns of the lawyers, but they pointed out that the criminal law, being not only the strongest but also the most uncouth weapon of the state, would not be suited to solve the problems and enable the adolescents to a self-determined sexual life; instead, the use of the criminal law would create serious problems and dangers for the youths it intends to protect.34 In reaction to this opposition by the nonlegal experts heard by parliament (i.e., by the representatives of youth-prostitution projects), a somewhat compromise of a clause has been included into the law obliging the courts to drop the case if the wrong-doing was minor, whereby special consideration should be given to the behavior of the younger partner (Art. 182 par. 4 CC). This clause primarily is applied when the younger one starts the initiative or when he readily agrees to the initiative of the older.35 Moreover, prosecution based on the third alternative, “practising on lacking capacity to sexual self-determination” (Art. 182 par. 2 CC), has been bound to a complaint by the legal representative of the juvenile.36 Table III does not supply information from which age onwards a minor can legally consent to “seduction” because also in states that do not have special provisions on seduction, seduction can be punished under the minimum age provisions, which cover all sexual contacts, regardless of the means used. The following table shows in how many states consensual sexual relations (with “seduction” but out of a relationship of authority) are legal in a certain age group (Table IV): 12 14 15 16
Only Malta and Vatican37 46% (26–57) 61% (35–57) 88% (50–57)
So, in nearly one-half of the jurisdictions, a 14-year old can legally consent to 34 Cf.
Deutscher Bundesrat (1992), Deutscher Bundestag (1993), Graupner (1995, Vol. 1, 361–408; 1997b, Vol. 1, 361–408). law of the German Supreme Court (“Bundesgerichtshof”) on the identical Art. 174 par. 4 CC and the former Art. 175 par. 4 CC. In interpreting Art. 182 par. 4 CC, the Federal Court sticks to this case law (cf. BGH 06.04.1995, 1 StR 82/95). 36 This complaint must be made within 3 months after knowledge of deed and perpetrator (Art. 77b CC). The public prosecutor is entitled to prosecution only if, due to an outstanding public interest in prosecution, he deems prosecution necessary (Art. 182 CC). BGH 06.04.1995, 1 StR 82/95. 37 And Scotland, in the case of pubertal boys. 35 Case
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Table IV. “Seduction” without Coercion and Out of Relationships of Authority; Legal from the Age of1 (Europe) Individual sexual maturity From 12 Belorus Malta Lithuania Vatican Scotland2 Ukraine
From 14
From 15
Albania Austria3 Bosnia–Herzegovina Bulgaria Croatia Estonia Former Yugoslavia Kosovo Serbia Montenegro Vojvodina Hungary Italy4 Latvia5 Liechtenstein Macedonia Portugal6 Romania Russia San Marino Slovenia
Czechia France Greece Ireland Monaco7 Poland Slovakia Sweden8 Turkey
From 16
From 17
From 18
From 21
Belgium Northern Andorra Monaco14 Cyprus9 Ireland Denmark Germany F¨ar¨oer England & Finland Wales Greenland Georgia Netherlands Gibraltar Sweden13 Guernsey Iceland Isle of Man Jersey Latvia10 Luxemburg Moldova Norway Portugal11 Scotland12 Spain Switzerland
From the individual capacity to give informed consent: Cyprus15 General ban on “seduction”: Sweden (“against remuneration”),16 Spain (cf. Table III). 1 Some
jurisdictions (Czechia, Malta, Romania, Slovakia, the Vatican, and the jurisdictions on the territory of the former Soviet Union) have laws against “corruption” of youths or against “seduction” to an “idle or indecent life.” But these provisions have in common that they are intended to protect the “orderly life” of the youths. Therefore often a more intensive and repeated influence on the youth is afforded, so that he (or she) as a result of the offense is led into a “disorderly” life. A single contact, for instance against remuneration, normally does not invoke criminal liability. Likewise it is not punishable to “seduce” a juvenile (for instance by offering money for sexual contact) who already does lead a “disorderly” life. Such offences therefore have not been counted as “seduction” provisions for the purpose of this table. Four jurisdictions on the territory of the former Yugoslavia and Monaco, Romania, San Marino, and Turkey have laws against “seduction of minor girls under false promise of marriage.” This offense however, is intended to protect the virginity of the girls. The intention of these laws therefore is so narrow that they have not been counted as “seduction” provisions for the purpose of this table. Additionally, these laws (with the exception of Monaco and San Marino) do cover vaginal intercourse with girls only, and they are seldom enforced and of no practical importance. In Finland, Germany, Italy, and Sweden, there is a higher age limit for “casual sexual acts with a minor against remuneration.” Contacts with minors against remuneration in most cases do not constitute “seduction” (in most cases the adolescents offer themselves or readily agree to such an offer); the intention of legislators for such provisions, however, are based mostly upon the suggestion that the offer of remuneration contains an element of “seduction.” Therefore such provisions have been included here. Special offenses for homosexual “seduction” have been excluded from this table to keep it clear and legible. Moreover, they are based upon very special reasoning making it unapposite to mix them together with general seduction provisions. 2 In the case of heterosexual “seduction” of boys. (Continued )
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3 Seduction
is not perishable from 12 in the case of nonpenetrative sexual contact with a partner not more than 4 years older, and it is 13 in the case of penetrative sexual contact (with parts of the body), if the partner is not more than 3 years older. In other cases it is legal as of 14. 4 Seduction is legal from 13 onward if the older partner is not older than 16, and 14 if he is older than 16. 5 Except for vaginal intercourse. 6 For all contacts but vaginal intercourse with boys and girls. 7 For “seduction” of boys. 8 Except “against remuneration” and “seduction” to the participation in pornographic productions. 9 For vaginal intercourse with girls. 10 For vaginal intercourse. 11 For vaginal intercourse with boys and girls. 12 In the case of “seduction” of girls. 13 “Against remuneration” and “seduction” to the participation in pornographic productions. 14 For “seduction” of girls. 15 Valid for all sexual contact except vaginal intercourse and anal intercourse with girls and boys. 16 As of 1999 (cf. Table III).
“seduction”; and in a majority, a 15-year old can. The countries that do allow this as of age 16 are those with a single-stage system or with extensive possibilities to screen out.38,39 RELATIONS OF AUTHORITY Most jurisdictions have special higher age limits for contact within relations of authority; mainly those with a minimum age limit of under 16. Only a minority do not have such provisions (e.g., mainly common-law countries and CIS states). In most jurisdictions, it does not suffice that a relationship of authority exists, but it is afforded that the authority is misused in order to gain consent to the sexual contact, with one exception: contacts between ascendents and their descendents are always criminal, regardless of whether authority has been misused. Therefore, two different situations must be separated: 1. Authority has not been misused (e.g., love relationship between a student and teacher). The following table shows in how many states such relations are legal in a certain age group (see Table VI): 38 See
the Netherlands, where 80–90% of the cases (of seduction of 16- and 17-year-old adolescents) are dropped. Many of these countries also bind prosecution upon a complaint (by the adolescent or his legal representative): Germany (for the alternative “practicing on lacking ability to sexual self-determination,” Art. 182 par. 2 CC), Monaco (girls over 15), the Netherlands (over 12; as soon as the minor is 16 even just he himself can complain, legal representatives can do so for minors under 16 only), Portugal (over 12), Spain (the state prosecutor can also complain). Also, the offence of seduction by a false promise of marriage (which has not been considered for this calculation, see Table IV/ FN 1) in the successor states of the former Yugoslavia, in San Marino, and in Turkey can be prosecuted on the basis of a complaint (by the minor or his legal representative) only. The same is true for the offences of “corruption of minors” in Malta and the Vatican (see Table IV/FN 1). 39 Switzerland and Iceland are the only countries that do allow legally effective consent into “seduction” from the age of 16 only and do establish a multistage system and do not allow for extensive screening.
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40% (23–57) 54% (31–57) 81% (46–57)
(This table does not cover sexual relations between ascendents and their descendents) 2. Authority has been misused (but the misuse does not arise as a result of intimidation, coercion, or force covered by the offences on sexual violence). The following table shows in how many states such relations are legal in a certain age group (Table VII): 14 15 16 18
18% (10–57) 26% (15–57) 46% (26–57) 90% (51–57)
(This table does not cover sexual relations between ascendents and their descendents) Accordingly, if authority has been misused, the age limit mostly is set at 16 or 18, and if it is not misused, the age limit is set at 14, 15, or 16. OVERSEAS40 Remarkably, common-law countries (or countries having been under their influence) set the age limit in most cases at 16, and sometimes even today still have a total ban on homosexuality or on certain kinds of sexual contact; or a special higher age limit for certain sexual practices, as Canada for anal intercourse (at 18).41 Countries with French or Spanish influence or that have never been a colony in most cases set the minimum age low, with the notable exception of countries that have been a prime target of Western sex tourism: Thailand raised the limit from 13 to 15 in 1987, and in 1996 (for contacts “in the place of prostitution”) to 18; and the Philippines, while letting the minimum age at 12, passed a law criminalizing sexual contact with under-18 year olds, if the contact occurred for money, gift, or any other consideration or due to any influence of an adult. Apart from these cases, seduction provisions are very rare outside of Europe. In the United States of America, legislation on this issue is up to each state, which established very divergent regulations and there are minimum age limits from 14 up to even 18 in some states. It is striking that in the United States, the age 40 See
Table VIII. age limit of 18 applies to anal intercourse between unmarried persons. In the recent years, however, several (superior) courts have invalidated this higher age limit as unjustified discrimination on the basis of age, sexual orientation, and marital status [R. v. C.M. (1995), Henry Halms v. The Minister of Employment and Immigration (1995), R. v. Roy (1998); for more decisions, cf. R. v. Roy (1998)].
41 The
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Graupner Table V. Sexual Relations with Juveniles in Relations of Authority (Europe)
I. No laws Albania (I) Bulgaria (I) CIS Belorus Georgia Moldova Ukraine Cyprus (I) Estonia Gibraltar (I) Greenland Guernsey (I) Ireland (I) Isle of Man (I) Jersey (I) Latvia Lithuania Luxembourg Malta Monaco (for boys; for girls see II below) San Marino (I) Turkey United Kingdom East and West (I) Northern Ireland (I) Age II. Laws—screening possible1 Andorra Asc other Austria Asc
Belgium Bosnia–Herzegovina Croatia Czechia Denmark F¨ar¨oer Finland Former Yugoslavia Kosovo
18 18 — 19
G
Sex cont
Abuse of authority — Afforded — —
Other Asc Other Asc Other Asc Other Asc Other Asc Other Asc Other Asc Other
19 18 — 18 — 18 — 18 — 18 — 18 18 18
All All VI Other contacts than VI All All No provisions VI All VI All VI All All All All All All All
Asc Other
— 18
VI All
Afforded — — Afforded — Afforded — Afforded — — — — — Afforded — Afforded (Continued )
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Montenegro
G
Sex, cont.
Asc Other Asc Other Asc Other Asc Other
— 18 — 18 — 18 18 18
VI All VI All VI All All All
Germany
Asc Other
— 18
VI All
Greece Hungary
Other Asc Other
18 — 18
All All All
Macedonia
Asc Other Asc Other Asc Other Asc Other Asc Other Other
— 18 18 21 18 18 — 18 — —2 16 18
VI All All All All All All All All All All All
Asc Other Other Asc Other Asc Other Asc Other Asc Other
— 18 —3 — 18 18 18 —4 —5 — 18
Asc Other
— 16
VI VI
Other
15
All
18 — 18 —7 16
All All All All All
Serbia Vojvodina France
Monaco Netherlands Norway Poland Portugal Romania Russia Slovakia Slovenia Spain Sweden United Kingdom Scotland Vatican6
III. Laws—no screening possible Greece Asc Iceland Asc Other Italy Asc Other
F
F
VI VI All VI All VI All All All All All
Abuse of authority — Afforded — Afforded — Afforded — Afforded, if the authority is based upon a public office (teacher, educator, etc.) — Up to 16, not afforded; from 16 onward, afforded — — “Endangering of the moral development” afforded — Afforded — Afforded — — — — Afforded Afforded — Up to 16, not afforded; from 16 onward, afforded — Afforded Afforded — Afforded — Afforded — Afforded — — — “Common household” afforded — — — — — — (Continued )
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Graupner Table V. (Continued ) Age
Liechtenstein
Switzerland Vatican
Asc
— 20
Other Asc Other Asc
20 — 20 —8
G
Sex. cont,
Abuse of authority
VI Other contacts than VI All VI All All
— — Afforded — Afforded —
Note: Age: Sexual relations in relations of authority are punishable with persons up to the age as given; Other: relations of authority which are not ascendent/descendent–relations (e.g., education, care, supervision, etc.); Asc: Ascendents/descendents–relations; Abuse of Authority: —: abuse of authority is not afforded for prosecution; Afforded: not all sexual contacts in relations of authority are punishable, but only if the authority has been abused; G: “protected” gender (where nothing is indicated the law covers males and females); F: law covers authority relations over females only; (I): there is a general offence of incest regardless of the age of the partners; Sex cont: punishable only: AV: anal intercourse; OV: oral intercourse; VI: vaginal intercourse; All: all sexual acts; All HTS: all heterosexual acts; All HS: all homosexual acts. 1 These jurisdictions allow for screening of cases which do not require prosecution. This means that either prosecution authorities are being granted power of discretion to prosecute or not and to judge each case on its merits or that prosecution does require a complaint (mostly by the minor, his legal representative or a youth protection authority). 2 In Poland there is a general law against the abuse of dependency for sexual purposes regardless of the age of the partners. 3 In Russia it is an offence (irrespective of age) to practise upon a financial or other dependency to gain sexual contact. 4 In Spain there is a general law against the abuse of authority for sexual purposes regardless of the age of the partners. 5 In Spain there is a general law against the abuse of authority for sexual purposes regardless of the age of the partners. 6 No screening possible if the offense is committed by abuse of parental power or of the power of a guardian. 7 Sexual relations between ascendents and descendents (over 16 years of age) are punishable only if they are held in a way that invokes a public scandal. 8 Sexual relations between ascendents and descendents (over 15 years of age) are punishable only if they are held in a way that invokes a public scandal.
limits go considerably higher than in the rest of the world.42 A specialty of the U.S. system is that many states have established different age limits for different kinds of sexual practices (vaginal, anal, oral intercourse, mutual masturbation, etc.),43 42 Wyoming set the minimum age limit even as high as 19. Just one of the jurisdictions studied worldwide
does establish a higher one: Chile, where the limit is 20. The most restrictive legislation the author found was Canadian legislation between the years 1955 and 1969: homosexual but also heterosexual “gross indecency” (potentially all kinds of sexual contact) has been a criminal offense regardless of the age of the partners. In 1969, the offense was slightly modified: if not more than two persons were present and the partners were married or both above 21 years of age. In 1988, this law was abolished (for details, cf. Graupner, 1997b, 334/46). 43 With the exception of total bans on (certain) homosexual acts in some US states (see Table VIII), homosexual contacts are subject to the same regulations as heterosexual ones. Homosexual conduct (or some kinds of) therefore is either totally illegal or subject to the same regulations. Unequal laws
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Table VI. Sexual Relations with Juveniles in Relations of Authority without Coercion and without Misuse of Authority1 (Europe)2 Legal from the age of Individual maturity Belorus Lithuania Scotland3 Ukraine
12
14
15
16
17
18
Malta Spain
Albania Austria4 Bosnia–Herzegovina Bulgaria Croatia Estonia Former Yugoslavia Kosovo Montenegro Serbia Vojvodina Latvia5 Liechtenstein Macedonia Romania6 Russia San Marino Slovenia
Czechia Greenland Ireland Monaco Poland Slovakia Turkey Vatican
Andorra Belgium Cyprus7 England & Wales8 Finland Georgia Germany Gibraltar9 Guernsey10 Isle of Man11 Italy Jersey12 Latvia13 Luxemburg Moldova Portugal Scotland14 Switzerland
Northern Ireland15
Denmark F¨ar¨oer France Greece Hungary Iceland Netherlands Norway Sweden
No age limit: Romania16 From the individual capacity to give informed consent: Zypern17 1 Excluding
relations between ascendents with their desendents.
2 Special offences for homosexual “seduction” have been excluded from this table to keep it clear and
legible. Moreover, they are based upon very special reasoning making it unapposite to mix them together with general provisions. 3 For other contacts with boys than vaginal intercourse. 4 The limit is 12 in the case of nonpenetrative sexual contact with a partner not more than 4 years older, and it is 13 in the case of penetrative sexual contact (with parts of the body) if the partner is not more than 3 years older. In other cases, it is 14. 5 Except for vaginal intercourse. 6 For vaginal intercourse with girls. 7 For vaginal intercourse with girls. 8 For anal intercourse there is a special limit of 18. 9 Anal intercourse is a criminal offence regardless of the age of the partners. 10 Anal intercourse is a criminal offence regardless of the age of the partners. 11 For anal intercourse, there is a special limit of 18. 12 Anal intercourse is a criminal offence regardless of the age of the partners. 13 For vaginal intercourse. 14 For sexual contacts with girls and for vaginal intercourse with boys. 15 Anal intercourse is a criminal offence regardless of the age of the partners. 16 Not for vaginal intercourse with girls. 17 Not for vaginal intercourse with girls.
Malta
Albania Bulgaria Estonia Latvia4 San Marino
14 Greenland Ireland Monaco5 Turkey Vatican
15 Belgium Cyprus6 England & Wales7 Georgia Gibraltar8 Guernsey9 Isle of Man10 Italy Jersey11 Latvia12 Luxemburg Moldova Scotland13
16 Northern Ireland14
17 Andorra Bosnia–Herzegovina Croatia Czechia Denmark F¨ar¨oer Finland Former Yugoslavia Kosovo Montenegro Serbia Vojvodina France Germany Greece Hungary Iceland Macedonia Netherlands Norway Portugal Romania15 Slovakia Slovenia Sweden
18 Austria
19
Liechtenstein Switzerland
20
Monaco16
21
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No age limit: Poland,17 Romania,18 Russia,19 Spain20 From the individual capacity to give informed consent: Cyprus21
Belorus Lithuania Scotland3 Ukraine
12
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from this table to keep it clear and legible. Moreover, they are based upon very special reasoning making it unapposite to mix them together with general provisions. 3 For other contacts with boys than vaginal intercourse. 4 Except for vaginal intercourse. 5 For contacts with boys. 6 For vaginal intercourse with girls. 7 For anal intercourse there is a special age limit of 18. 8 Anal intercourse is a criminal offence regardless of the age of the partners. 9 Anal intercourse is a criminal offence regardless of the age of the partners. 10 For anal intercourse there is a special age limit of 21. 11 Anal intercourse is a criminal offence regardless of the age of the partners. 12 For vaginal intercourse. 13 For sexual contacts with girls and for vaginal intercourse with boys. 14 Anal intercourse is a criminal offence regardless of the age of the partners. 15 For vaginal intercourse with girls. 16 For sexual contacts with girls. 17 In Poland it is an offence regardless of the age of the partners to gain consent to a sexual contact by abusing a dependency. 18 Not for vaginal intercourse with girls. 19 In Russia it is an offence (irrespective of age) to practise upon financial or other dependency to gain sexual contact. 20 In Spain it is an offence regardles of the age of the partners to gain consent to sexual acts by abusing a relationship of superiority which restricts the victim’s sexual liberty. 21 For sexual contacts save vaginal intercourse with girls and anal intercourse with girls and boys.
1 Excluding relations between ascendents with their desendents. 2 Special offences for homosexual “seduction” have been excluded
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Graupner Table VIII. Sexual Consent (Overseas) Mf
I. Age limits for sexual relations1 Australia Australian Capital Territory New South Wales 16 Northern Territory 16 Queensland 16/182 South Australia Tasmania Victoria Western Australia 16 Brasilia 14 Canada Chile 20 Ghana 14 India 15/16 Japan 13 New Zealand 12/16 Papua New Guinea —/16 Philippines 12 South Africa —/16 South Korea 13 Taiwan 16 Thailand 15/189 Tuvalu —/15
United States14,15 Alabama Alaska American Samoa Arizona Arkansas California Colorado Connecticut DC Delaware Florida17 Georgia Guam Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky
Fm
Ff
Mm
10/16
FRO
MST R TB
—
—
10/16 —
1976
17 — — 18 — 17/18 17 — 18 — — — — —/20 — 18 — — — — —
16
1987/90 1983 1990 1972 1997 1980 1989 n.k. 1969 —/1998 — — 18806 1986 — — 19988 — 1912/30 195713 —
16 16 14 16 16/183 16 16/17 —/12/15/17 —/10/16 16 16 14 14 —/14/185 20 20 — — — — 13 13 — —/12/16 —/14 —/16 12 12 —/16 19 13 13 16 16 15/1810 15/1811 — —/15
20 — — 13 16 — 12 — 13 16 15/1812 —
— — — — — — — 18 18 — — — — — — 187 — — — — —
Mf
Fm
Mm
Verf AV
VOR MST AHTV
16 14
16 14
16 14
— — —
— 18 —
(A) (A) n.k.
— — n.k.
— — 18 — — — — — — — — — — — — — —
— — — 18 18 — — 18 — — — — 18 — 16 — —
(A) —
— — (?) — — — — n.k. 14 n.k. — — — — — — —
16 16/1818 14 16 14 16 16
Ff —/12/16 16 14
—15/18 —/14/16 14/16/1816 —/15 —/15/16 16 16 14/16 16/1819 16/1820 14 14 16 16 14 14 18 16 16 —/16 —/14/16 16 16 14/16
18 18 16/184
Sed Auth
21 14
16 16/1821 14 16 14 16 16
16 —/16 16 16 16 16 — — —/16 (A) 16 n.k. — —/14 — — — — — — — — — — — — — — 16/19 16/19 — — — — [?] [?] — —
(A) — (A) (A) n.k. 14 n.k. — — — — (A) (A) (A)
— 1978 n.k. — — —/1975 1971 1969 — n.k. — 199822 n.k. n.k. — 1961 1976 197623 — 199224
(Continued )
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Fm
Ff
Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virgin Islands Virginia
—/12/15/17 —/14/16 —/14/16 14/16 13/16 13/16 —/14/1827 14/17 16 16 16 —/14/16 29 30 14/16 14/16 14 13/16 —/13/16 13/16 14/17 —/13/16 15/18 13/16 34 —/14 /16/18 — 14/18 13/1635 14 14 14 1538 /16 —/14/1539 1640 13/18 —/14/17 14 14 14 16 16 16 —/16 13/14/ 13/14/ 13/14 15 15 Washington —/12/14/16 West Virginia —/11/16 Wisconsin 15/1843 19 19 19 Wyoming46 People’s Republic —/14 — — of China Vietnam 16 16 16
Mm
Verf
AV
VOR
MST
AHTV
— — — — 16 16/18 18 — — — — 16 16/18 16 — 18 18 — — — — — — 16 — — — 18 — — —
—/17 — — — — — — — — — 14 1631 — — — 16 (A) (A) 16 — (A) n.k. (A) (A) (A) — (A) & 14 (A) — n.k. 14
—/17 — — — — — — — — — — — — — — 16 15 — 16 — — n.k. — — — — — — — n.k. 13
— 1975 — 197425 — — — — 199628 n.k. — 1973 197832 1975 198033 — n.k. 1972 — 1971 198037 — — — n.k. 199641 199842 — 1977 — —
19 —
— — — — —
18 — — — —
(A) — “child”44 — —
— — “child”45 — —
1975 1976 n.k. 1977 1912/30
16
—
—
n.k.
n.k.
n.k.
— — — — — —/1526 — — 16 — 17 14 — — — — — — — — — — — 1836 14 — — — — 18 — 14 18 16 — — 13/14 14
II. Total ban on (certain) homosexual contacts Australia Northern Territory (HSM)47 United States Arkansas (AnI, F, PV, PA) Kansas (AnI, F, C, PA) Missouri (AnI, F, C, MAST) Nevada (AnI, F, C) Oklahoma (HSF, HSM) III. Total ban on (hetero- and homosexual) anal and oral intercourse Canada (AnI)48 (Continued )
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United States Alabama (AnI, F, C) California (AnI, F, C)49 District of Columbia [M] (AnI, F, C) Minnesota [M] (AnI, F, C) Utah [M] (AnI, F, C, Va/An) Virginia [M] (AnI, F, C a.o.) Virgin Islands (AnI, F, C) IV. Total ban on heterosexual anal and oral intercourse and on (all) kinds of homosexual contact Papua New Guinea [M] (AnI, HSM) Tuvalu [M] (AnI, HSM) United States Puerto Rico (“sodomy,” “homosexual intercourse”) V. Total Ban on “Unnatural and Perverse Acts”50 Ghana [M] (AnI, HS a.o.) India [M] (AnI, F, HSPV a.o.)51 United States Arizona [M] (AnI, F, C, HSMAST a.o.) Florida (AnI, F, C a.o.)52 Idaho [M] (AnI, F a.o.) Louisiana [M] (AnI, F, C a.o.) Maryland [M] (AnI, F, PA a.o.) Michigan [M] (AnI, GI) Mississippi [M] (AnI, F, C a.o.) North Carolina [M] (AnI, F, C a.o.) Rhode Island [M] (AnI, F, C a.o.) South Carolina [M] (AnI a.o.) VI. “Fornication”53 and cohabitation54 United States Arizona (COH) District of Columbia (FORN) Florida (FORN, COH) Georgia (FORN) Idaho (FORN) Illinois (FORN) Massachusetts (FORN)55 Michigan (FORN, COH) Minnesota (FORN) Mississipi (FORN) New Mexico (COH) North Carolina (FORN, COH) North Dakota (COH) Oklahoma (FORN)56 South Carolina (FORN, COH) Utah (FORN) Virginia (FORN, COH) West Virginia (FORN, COH) Note: (G): There does exist a general offense covering exhibition in private regardless of the age of the persons involved; R TB: Year in which the total ban on certain sexual relations (e.g., homosexual contacts, anal intercourse, etc.) has been lifted (if such a total ban ever existed in this country)57 ; (Continued )
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Auth: Sexual relations within certain relations of authority are punishable up to the age (of the juvenile) as given; AnI: Anal intercourse; C: Cunnilingus; COH: Cohabitation; F: Fellatio; Ff: Minimum age for sexual relations of a girl with a woman; Fm: Minimum age for sexual relations of a boy with a woman; FORN: Fornication; GI: “Gross indecency”; HSF: Homosexual relations between females; HSM: Homosexual relations between males; HSMAST: Mutual masturbation between persons of the same sex; HSPV: Homosexual penetration of the vagina; [M]: The total ban of the listed kinds of sexual contact also covers contact between married partners; MAST: Mutual masturbation; Mf: Minimum age for sexual relations of a girl with a man; Mm: Minimum age for sexual relations of a boy with a man; MST: Incitement to masturbation punishable up to age (of the juvenile) as given; n.k.: Not known; PA: Penetration of the anus; PP: Penetration of the penis; PV: Penetration of the vagina; Va/An: Vagina/anus–contacts; Sed: Provisions on “seduction” of youths up to the age (of the adolescent) as given, mostly restricted to certain means of seduction; FRO: Sexual contacts in front of children or adolescents (without bodily contact) punishable up to age (of the juvenile) as given. 1 Where in this table different age limits are indicated this means that there are established different limits for different kinds of sexual acts and/or for different kinds of age difference between the partners. The respective regulations are to complex to represent them here in detail. A detailed representation is given in Graupner (1995, 324–357; 1997b, 324–357). 2 The age limit of 18 applies to anal intercourse. 3 The age limit of 18 applies to anal intercourse. 4 The age limit of 18 applies to anal intercourse. 5 The age limit of 18 applies to anal intercourse between unmarried persons. In the recent years, however, several (superior) courts have invalidated this higher age limit as unjustified discrimination on the basis of age, sexual orientation, and marital status (R. v. C.M. (1995), Henry Halms v. The Minister of Employment and Immigration (1995), R. v. Roy (1998); for more decisions, cf. R. v. Roy (1998)). 6 In Japan just one time there was a law outlawing some sexual acts generally. At the beginning of the Meiye Restoration in 1873—in the course of the reform of the Japanese criminal law under Western influence—homosexual acts have been criminalized. This law, however, has not been adopted to the first Criminal Code of the year 1880. 7 In 1992, the Philippines outlawed sexual contacts with minors (under 18) for money, profit, or other consideration or which occur due to the influence of any adult. 8 The total ban on male homosexual acts has been declared unconstitutional by the High Court and the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice (08.05.1998 & 09.10.1998: with the declaration having been granted effect even back to 27.04.1998)). Heterosexual intercourse interfemora and heterosexual oral sex has been decriminalized in 1932 (R v. K & F ); heterosexual anal intercourse in 1961 (R v N ). 9 The age limit of 18 (introduced with the Suppression of Prostitution Act, 1996) applies to (extramarital) sexual contacts “in the place of prostitution” only. 10 The age limit of 18 (introduced with the Suppression of Prostitution Act, 1996) applies to (extramarital) sexual contacts “in the place of prostitution” only. 11 The age limit of 18 (introduced with the Suppression of Prostitution Act, 1996) applies to (extramarital) sexual contacts “in the place of prostitution” only. 12 The age limit of 18 (introduced with the Suppression of Prostitution Act, 1996) applies to (extramarital) sexual contacts “in the place of prostitution” only. 13 The Criminal Code of 1908—the first one—made “carnal knowledge of man or woman against the order of nature” an offence (incarceration of 3 months up to 3 years and a fine). The adoption of this provision seems to be the result of influence of Western advisers in elaborating Thailand’s first Criminal Code and seems to have found its way into Thailand’s law from English law over the Indian Criminal Code, 1860 and the Egyptian Criminal Code, 1904, since all other Criminal Codes used as a model (France 1810, German Empire 1870, Hungary 1878, Netherlands 1886, Japan 1907) did not know such an offence. It has been wording similar to the offence of “buggery” of the Anglo-Saxon law and therefore seems to have been applied to anal intercourse (on the other side, it must be considered that India applied and applies its offence of “carnal knowledge against the order of nature” to all sexual acts which cannot lead to conception). How alien this law seems to have been to the Thais is shown on the penalty prescribed for it: while in the Anglo-Saxon countries (from where the law (Continued )
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originated) stiff penalties have been applied (the death penalty or at least life imprisonment), the Thais established rather low penalties. The law has not been taken over into the Criminal Code, 1957. 14 The United States Federal Criminal Code establishes a general minimum age of 12 years (§ 2241) and an additional limit of 16, if the partner is 4 or more years older than the adolescent (§ 2243), but these provisions apply only to territories which come under the special territorial and maritime jurisdiction of the United States and to federal correctional institutions. Under state legislation, there is usually no special age afforded for the older partner. Therefore sexual contacts of youths under the respective age limits always are criminal, even if their partner also is under this limit. Additionally in most states sexual relations with minors can be prosecuted under the offence of “contributing to the delinquency of a minor” (if the relation contributed to the “moral corruption” of the minor; and if the minor has not already been “delinquent” in this sense before). The Federal Crime Bill, 1994 introduced a new offence: Whoever travels in interstate or international commerce with the intent to engage in sexual contact with someone under 16 is liable to imprisonment of up to 10 years (§§ 2423, 2243 Federal Criminal Code). Liable for prosecution is also he who prepares for such a travel. This leads to an obscure legal situation: The minimum age for sexual relations is set at 14 in Hawaii, for instance. A couple consisting of a 15-year old and a 21-year old therefore can legally have sex. But when both travel to another U.S. state or to another country, their relation becomes a criminal offence and the older partner can be jailed up to 10 years, even if the relation also is legal in the other U.S. state (e.g., Florida) or in the other country (e.g., Canada). Under federal law it is also an offence to “knowingly transport, or knowingly persuade, induce, or coerce any individual to travel in interstate or foreign commerce, or in any territory or possession of the United States, with intent that such individual engage in any sexual activity for which any person can be charged with a criminal offence” (18 U.S.C.A. §§ 2421 [enacted 1948], 2422 [enacted 1948]) (Posner and Silbaugh, 1996, 71). 15 In 1981, the U.S. Supreme Court held that stricter rules for males do not violate the equal protection clause of the Constitution, on the theory that men lack the disincentives associated with pregnancy that women have to engage in sexual activity, and the law may thus provide men with those disincentives in the form of criminal sanctions (Michael M. v. Superior Court, 450 U.S. 464 [1981]). 16 Cf. The People v. T.A.J. (1998). 17 Cf. B.B. v. State (1995). 18 General age of consent is 16 (Fla. Stat. Ann. § 800.04 [enacted 1993]); Moreover, “unlawful carnal intercourse with any unmarried person, of previous chaste character” under 18 is also a felony (Fla. Sat. Ann. § 794.05 [enacted 1892]) (Posner and Silbaugh, 1996, 49). 19 General age of consent is 16 (Fla. Stat. Ann. § 800.04 [enacted 1993]); Moreover, “unlawful carnal intercourse with any unmarried person, of previous chaste character” under 18 is also a felony (Fla. Sat. Ann. § 794.05 [enacted 1892]) (Posner and Silbaugh, 1996, 49). 20 General age of consent is 16 (Fla. Stat. Ann. § 800.04 [enacted 1993]); Moreover, “unlawful carnal intercourse with any unmarried person, of previous chaste character” under 18 is also a felony (Fla. Sat. Ann. § 794.05 [enacted 1892]) (Posner and Silbaugh, 1996, 49). 21 General age of consent is 16 (Fla. Stat. Ann. § 800.04 [enacted 1993]); Moreover, “unlawful carnal intercourse with any unmarried person, of previous chaste character” under 18 is also a felony (Fla. Sat. Ann. § 794.05 [enacted 1892]) (Posner and Silbaugh, 1996, 49). 22 State v. Anthony Powell, Supreme Court of Georgia (23.11.1998). 23 State v. Pilcher (1976). 24 Commonwealth v. Wasson, Supreme Court of Kentucky (1992). 25 Commonwealth v. Balthazar (1974). 26 Age limit of 15 only for “seducers” 18 or over (Minn. Stat. Ann. § 609.352 [enacted 1986]) (Posner and Silbaugh, 1996, 54). 27 Age limit of 18 only for “carnal knowledge” (“illicit connection”) with an adolescent of “previous chaste character” and only if perpetrator is “older” than the adolescent (Miss. Code Ann. §§ 97-3-67 [enacted 1917], 97-5-21 [enacted 1857]) (Posner and Silbaugh, 1996, 55). 28 Gryczan v. State of Montana, Supreme Court of Montana (1997). (Continued )
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29 The
age limit of 16 covers only heterosexual vaginal, anal, and oral intercourse, and only if the partner is 18 or over (Nev. Rev. Stat. §§ 200.364 [enacted 1977], 200.368 [enacted 1977]) (Posner and Silbaugh, 1996, 56). 30 The age limit of 16 covers only heterosexual vaginal, anal and oral intercourse, and only if the partner is 18 or over (Nev. Rev. Stat. §§ 200.364 [enacted 1977], 200.368 [enacted 1977]) (Posner and Silbaugh, 1996, 56). 31 N.H. Rev. Stat. Ann. § 645:1 (enacted 1971) (Posner and Silbaugh, 1996, 57). 32 State v. Saunders (1977), State v. Cuiffini (1978). 33 People v. Onofre (1980), People v. Uplinger (1983). 34 Okla. Stat. Ann. tit. 21, § 1114 (enacted 1981) (Posner and Silbaugh, 1996, 59). 35 18 PA. Cons. Stat. Ann. §§ 3121, 3122.1, 3123, 3125, 3126 (enacted 1995) (Posner and Silbaugh, 1996, 60). 36 It is (also) an offence to seduce a female of “good repute,” under 18, with promise of marriage (18 PA. Cons. Stat. Ann. § 4510 [enacted 1939]) (Posner and Silbaugh, 1996, 60). 37 Commonwealth v. Bonadio (1980). 38 R.I. Gen. Laws §§11-37-8.1 (enacted 1984), 11-37-8.3 (enacted 1984) (Posner and Silbaugh, 1996, 60). 39 S.C. Code Ann. § 16-3-655 (Posner and Silbaugh, 1996, 61). 40 S.D. Codified Laws Ann. §§ 22-22-7, 22-22-7.3 (Posner and Silbaugh, 1996, 61). 41 Campbell v. Sundquist, Supreme Court of Tennessee (1996). 42 In November 1998, the Texas Supreme Court (State v. Lawrence & Gardner) overruled the state’s sodomy law (which covered same-sex sodomy only) (International Gay and Lesbian Human Rights Commission, 1998). 43 Between 15 and (under) 18, it is rebuttably presumed that the minor is incapable of consent (Wis. Stat. Ann. §§ 940.225, 948.09 [enacted 1987]) (Posner and Silbaugh, 1996, 63). 44 Wis. Stat. Ann. § 948.10 (enacted 1987) (Posner and Silbaugh, 1996, 64). 45 Wis. Stat. Ann. § 948.10 (enacted 1987) (Posner and Silbaugh, 1996, 64). 46 Cf. Campbell v. State (1985). 47 In the Northern Territory, homosexual contact is an offence if more than two persons are present. 48 In Canada, anal intercourse between unmarried partners is an offence if more than two persons are present. 49 Applies in state prisons only (Cal. Penal Code §§ 286 [enacted 1872], 288a [enacted 1921], 289 [enacted 1978]) (Posner and Silbaugh, 1996, 66f ). 50 Named differently (“Abominable and detestable crime against nature,” “Infamous crime against nature,” “unnatural and lascivious acts,” etc.). 51 India punishes all sexual penetration which cannot lead to conception (“carnal intercourse against the order of nature”). 52 “Unnatrual and lascivious acts” (Fla. Stat. Ann. § 800.02 [enacted 1993]) (Posner and Silbaugh, 1996, 67). 53 Consensual heterosexual acts performed in private between unmarried persons (regardless of the age of the partners); for details, see Posner and Silbaugh (1996, 98ff ). 54 Heterosexual (unmarried) cohabitation (regardless of the age of the partners); for details see Posner and Silbaugh (1996, 98ff ). 55 Cf., however, Commonwealth v. Balthazar (1974). 56 Only seduction of a female of “previous chaste character under promise of marriage.” 57 If “—” is indicated, this can either mean that in this jurisdiction a total ban on certain sexual acts never existed or that such a ban still is in force. Where this sign (“—”) is given and the country is not listed under II to V, this means that the author could not find any period where certain sexual acts have generally been criminalized.
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often combined with different limits for different age breaks between the partners. This leads to a very complex legal situation that cannot be easily understood by ordinary people without the help of a specialized lawyer. There is only one Federal Law in our field.44 In 1994, a provision was introduced against sex tourism into the Federal Criminal Code. This law is worded in a way that can produce obscure results, making it an offence to travel on interstate or international commerce with the intent to engage in sexual contact with someone under 16 (§§ 2423, 2243 Federal Criminal Code). The minimum age limit is set at 14 in Hawaii, for instance. A couple consisting of a 15- and a 21-year old can therefore legally have sex there. But when both travel to another U.S. state or to another country, their relation becomes a criminal offence, and the older partner is liable to imprisonment of up to 10 years, even if the relation is legal in the other U.S. state (e.g., Florida) or in the other country (e.g., Canada). In Europe in recent years, Austria,45 Belgium, Finland,46 Germany,47 France,48 and Norway49 have passed legislation making their citizens liable to prosecution under their laws on sexual minimum age regardless of where the contact occurred, even when the contact has been completely legal in the country where it occurred.50 These laws also can produce obscure situations. A 19-year-old Belgian, for instance, who travels to Spain and there has sex with his 15-year-old Spanish summer love commits a criminal offence (under Belgian law). But he is the only one who does. Other people taking holidays there, from for instance Britain, Italy, Denmark or other states, could legally engage in a relation with the 15-year old. Whereas in Germany and Austria the respective laws address only the citizens of for the protection of youths (as different age limits) for hetero- and homosexual contacts are not known in US law. 44 Besides the provisions on “child” pornography. These render all visual depiction of sexual acts by and with persons under 18 years of age criminal. Also, visual depictions representing “lascivious exposure” of the “genitals or the pubic area” of a person under 18, even if this person is fully clothed and even if the outlines of these areas are not discernible through clothing (§§ 2251–2256 Federal Criminal Code; Confirmation of Intent of Congress in Enacting Section 2252 and 2256. Section 160003 of Pub.L. 103-322). Canada passed a similar law in 1993 (ch. 46, 40-41-42 Elizabeth II.23.06.1993). In Europe, only Estonia, France, Germany, Italy, Latvia, Spain, and Sweden have an age limit for taking part in pornographic performances that is higher than the general age limit (as far as the criminal law is concerned). 45 Art. 64 CC. This regulation applies to the general age limit of 14 only, not to the higher minimum age for homosexual relations (18 years). 46 Chapter 1 § 11 CC. 47 In 1998, Germany extended this principle of exterritoriality also to its seduction provision (Art. 182 CC) (cf. IV above and Table III.) (Art. 1 lit. 2b 6th Criminal Law Reform Act, 1998). 48 Art. 227-27-1 CP. 49 For sexual contacts with persons under 14. 50 This is of importance because these countries as a principle do confine the absolute application of their criminal law to offences on their territory. The question does not arise in countries that bound their citizens to their criminal law wherever they are and irrespective of the law of the country where the offence occurs (for example, the Netherlands, Italy, Poland, the Czech Republic). For Italy, see also Art. 604 CP, as amended by law 02.08.1998 (no. 269), in relation to Art. 4ff CP.
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their countries going abroad,51 Belgium criminalizes everyone who is caught on its territory.52 As a result, for example, a 20-year-old German (or Austrian, French, etc.) can be prosecuted in Belgium for sexual relations with his 15-year-old girlfriend in their home country that are legal there. In the United Kingdom, such a law project has been rejected.53 The Council of the European Union recommended to introduce the principle of exterritoriality but expressly left it open to the member states to bind prosecution on the requirement that an act constitutes a criminal offence in the country itself and abroad (Council of the European Union, 1998, 4). The Council of Europe generally recommends to “introduce rules on exterritorial jurisdiction in order to allow the prosecution and punishment of nationals who have committed offences concerning sexual exploitation of children outside the national territory” (Committee of Ministers, 1993, 12, 42), also leaving it open to the member states to afford double punishability. GOVERNMENTAL EXPERT COMMISSIONS National governments frequently appoint expert commissions to scrutinize the law on sexual offences and make recommendations. Most of these commissions in Europe recommended a minimum age limit of 14;54 the Dutch “MelaiCommission” of 12.55 The experts heard by both chambers of the German parliament and by the Austrian parliament favored an age limit of 14.56 Three commissions suggested 15,57 and only one 16.58 Nearly all called for effective screening of cases in which criminal proceedings would do more harm to the child 51 France
applies its law to its citizens and foreigners permanently residing in France.
52 Norway also applies its respective laws extensively. But for the prosecution of an offence committed
by a nonresident foreigner abroad, a decision by the king is afforded. the United Kingdom restricted the power of its jurisdiction to actions within its own territory. Sexual conduct outside the United Kingdom did not fulfill an offence triable by British courts, even if the conduct was an offence both at home and abroad. In 1997, the British parliament passed a law making (certain) sexual offences (against persons under 16) abroad triable by its courts. But as a requirement, the conduct can only be prosecuted in the United Kingdom if it is an offence both in the United Kingdom and abroad (s. 7 & 8 Sex Offenders Act, 1997). 54 Schweizer Expertenkommission (1977), Swedish Commission on Sexual Offences (1976), Danish Council on the Criminal Law (1975), Bundesministerium f¨ur Justiz (1956–1962). 55 Niederl¨ andische Strafrechtsreformkommission (Melai-Kommission) 1980. 56 Deutscher Bundesrat (1992), Deutscher Bundestag (1993); Osterreichischer ¨ Nationalrat (1995). 57 The Norwegian Criminal Law Commission (which recommended to lower the minimum age limit in Norway from 16 to 15; Justis og politiedepartementet, 1997); The Finnish Criminal Law Commission, 1993 (which recommended to lower the minimum age limit in Finland from 16 to 15; Oikeusministeri¨on, 1993); The Law Reform Commission of Ireland (1990); but also: “Although age limits are necessarily arbitrary, the age in this country of 15 on one view seems particularly difficult to justify. . . . No doubt, prosecutorial discretion and flexible sentencing can, and probably does, avoid the grosser injustices which such a law could produce: nonetheless, its retention on the statute book in this form is at least questionable” (The Law Reform Commission of Ireland, 1989, 65). 58 Policy Advisory Committee on Sexual Offences, 1981 (and just adopting its recommendations the Criminal Law Revision Committee, 1984). 53 Traditionally,
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than good, and made concrete proposals in this respect (necessity of a complaint, power of discretion for prosecution authorities and the courts, power for the victim to veto criminal proceedings, etc.) (Graupner 1995, 2, 26ff; 1997b, Vol. 2, 26ff). Just one of the commissions proposed a special age limit for “seduction”: the Dutch “Melai-Commission” recommended a minimum age limit of 12, suggested to criminalize sexual contacts with 12- to 16-year olds if the older partner initiated the contact.59 Most of the European commissions proposed the noncriminality of “seduction” over the age of 14.60 Three set this limit at 1561 and one at 16.62 No European commission recommended a special provision for sex against remuneration. The Swedish Commission explicitly called for the repeal of the respective provision in Swedish law.63 The experts heard by both chambers of the German parliament opposed “seduction” provisions (see above).64 Since the late 1960s, only one of the European commissions proposed a special (higher) age limit for homosexual contacts.65 All other commissions advocated uniform provisions.66 The same is true for almost all of the experts heard by the German parliament67 and the Austrian parliament.68 The European commissions did not reach uniform conclusions in the area of relations of authority. The English Policy Advisory Committee (1981), based upon its findings the Criminal Law Revision Committee (1984), opposed a special provision on contacts in relationships of authority; 16- and 17-year-old adolescents, they argued, do not require special protection against teachers, employers, youthclub leaders, and other persons in authority over them. Disciplinary law would suffice.69 Moreover, such a law would be contradictory, because the partner could even marry in this age group. The other commissions advocated a special higher 59 Niederl¨ andische
Strafrechtsreformkommission (Melai-Kommission) 1980. Expertenkommission (1977), Swedish Commission on Sexual Offences (1976), Danish Council on the Criminal Law (1975), Bundesministerium f¨ur Justiz (1956–1962). 61 The Norwegian Criminal Law Commission, 1997 (Justis og politiedepartementet, 1997); The Finnish Criminal Law Commission, 1993 (Oikeusministeri¨on, 1993); The Law Reform Commission of Ireland 1990 [only for vaginal and anal (not oral) penetration of (not by) adolescents it recommended an age limit of 17]. 62 Policy Advisory Committee on Sexual Offences, 1981 (and just adopting its recommendations the Criminal Law Revision Committee, 1984). 63 Swedish Commission on Sexual Offences (1976). 64 Deutscher Bundesrat (1992), Deutscher Bundestag (1993). 65 Policy Advisory Committee on Sexual Offences, 1981 (and just adopting its recommendations the Criminal Law Revision Committee, 1984). 66 The Norwegian Criminal Law Commission, 1997 (Justis og politiedepartementet, 1997); The Finnish Criminal Law Commission, 1993 (Oikeusministeri¨on, 1993); The Law Reform Commission of Ireland (1990), Niederl¨andische Strafrechtsreformkommission (Melai-Kommission) 1980, Schweizer Expertenkommission (1977), Swedish Commission on Sexual Offences (1976), Danish Council on the Criminal Law (1975), Health Council of the Netherlands (1969). 67 Deutscher Bundesrat (1992), Deutscher Bundestag (1973, 1990, 1993). 68 Osterreichischer ¨ Nationalrat (1995). 69 June 1998: the House of Commons (by 234:194) rejected a motion to introduce an age limit of 18 for relationships of authority (Stonewall, 1998). 60 Schweizer
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age limit for relationships of authority. As age limit the Dutch Melai-Commission (1980) recommended 16, the Law Reform Commission of Ireland (1990) 17, and the Swedish Commission on Sexual Offences as well as the Swiss Law Reform Commission (1977) 18. In Germany, four of the experts heard by parliament advocated 16, two 18 (Deutscher Bundestag, 1970).70 SUMMARY All states in Europe and all of the studied non-European jurisdictions have minimum age limits for sexual relations and punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe in one-half of the jurisdictions, consensual sexual relations with 14-year-old adolescents are legal; in almost three-quarters of the jurisdictions, consensual sexual relations with 15-year olds are legal; and in a majority also when the older partner initiated the contact (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions such relations are legal from age 16 onward. Most states apply a higher age limit for contacts in relationships of authority. If authority is not misused, this age limit in most jurisdictions is set between 14 and 16; if it is misused, between 16 and 18. Most states make no distinction between homo- and heterosexual relations.
CONCLUSIONS It is not the intention of this study to provide final answers to the two questions posed at the beginning. Rather, it should present a factual comparative law basis for further discussion of these problems. However, the author does not conceal his view that in applying the rules established by the European Court on Human Rights71 , in accordance with the recommendations of most of the European governmental expert commissions and in accordance with Horstkotte (1984), sexual acts with prepuberal children should 70 Cf.
Graupner (1995, Vol. 1, 596; 1997b, Vol. 1, 596).
71 See Introduction. So far, the European Court on Human Rights never had to use this test to give a final
ruling on an age of consent regulation. In the only case in which it had to deal with an age of consent issue, in the end—for formal reasons—it refused to decide the question (Dudgeon vs. UK 1981, §§ 62, 66). The European Commission on Human Rights, however, did repeatedly decide age of consent issues. All but one of these cases concerned special higher age limits for male homosexual relations (cf. the section on “Homosexual Relations”). In the only case dealing with a general minimum age limit, the Commission upheld a limit of 14 years (M.K. vs. Austria, 1997). In all these decisions, however, the Commission merely referred to the necessity to protect the young without giving any special reasoning (i.e., not in detail referring to or applying the principles for review elaborated in its and the case law of the Court). According to protocol No. 11 to the European Convention on Human Rights, as of 1 November 1998, the Commission and the Court both have been replaced by a new and permanent European Court on Human Rights.
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be and should remain criminalized, that a minimum “age limit of 14 is sufficient and a higher age limit for cases of ‘seduction’ neither workable nor necessary” (Horstkotte, 1984; p. 198).72 A higher age limit for contacts in relationships of authority should be set and it should be applied when authority is used to pressure the young into consenting to sexual acts. An age of 16 seems sufficient in this respect. And “the availability of some procedural reliefs should not obscure the fact that in many cases a complete dropping of the procedure and a crisis management by medical and youth welfare services and by private persons and organizations constitute the most efficient support for the child” (Horstkotte, 1984; p. 197). Screening seems indispensable, and states should provide for effective remedies for that. Also, the law should see no difference between heterosexual and homosexual behavior (Horstkotte, 1984; p. 202). CASES CITED Abdulaziz, Cabales and Balkandali v. UK, 94 ECtHR Series A (1985). B.B. v. State, 659 So.2d 256 (Fla. 1995). Campbell v. State, 709 P.2d 425 (Wyo. 1985). Campbell v. Sundquist, Tennessee Supreme Court, 926 S.W. 2d 250, Tenn. (1996). Commonwealth v. Balthazar 318 N.E.2d 478 (Mass. 1974). Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980). Commonwealth v. Wasson, Supreme Court of Kentucky, 842 SW 2d 487, Ky (1992). Dudgeon v. UK, 45 ECtHR Series A (1981). Gryczan v. State of Montana, Montana Supreme Court, ND 96-202 (1997). Halm v. Canada (Minister of Employment and Immigration), 2 F.C. 331, 27 CRR (2d) 23, 28 Imm.L.R. (2d) 252 (1995). Inze v. Austria, 126 ECtHR Series A (1987). Laskey, Jaggard & Brown vs. UK, ECtHR, Judgement (19.02.1997). Lustig-Prean & Beckett vs. UK, ECtHR, Judgement (appl. 31417/96, 32377/96) (27.09.1999). Mazurek vs. France, ECtHR, Judgement (appl. 34406/97) (01.02.2000). Marckx v. Belgium, 31 ECtHR Series A (1979). Michael M. v. Superior Court, 450 U.S. 464 (1981). M.K. vs. Austria, ECmHR, Decision (appl. 28867/95) (1997). Modinos v. Cyprus, 259 ECtHR Series A (1993). National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa (08.05. 1998). National Coalition for Gay and Lesbian Equality v. Minister of Justice, Johannesburg High Court (09.10.1998). Norris v. Ireland, 142 ECtHR Series A (1988). Open Door and Dublin Well Women v. Ireland, ECtHR, press release 468 (29.10.1992). People v. Onofre, 415 N.E.2d 936 (N.Y. 1980). People v. Scott, 9 Cal.4th 331, Cal. SC (1994). People v. Uplinger, 447 N.E.2d 62 (N.Y. 1983). R v. C.M., Ontario Court of Appeals, O.J. No. 1432 (1995). R v K & F, EDL 71 (1932). R v N, (3) ShA 147 (T) (1961). R v. Roy, 125 Quebec Court of Appeals, Canadian Criminal Cases (3d), 442 (1998). Rassmussen v. DK, 87 ECtHR Series A (1984). 72 For
a detailed reasoning, see Graupner (1997b, 1999).
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Salgueiro da Silva Mouta vs. Portugal, ECtHR, Judgement (appl. 33290/96) (21.12.1999) Smith & Grady vs. UK, ECtHR, Judgement (appl. 33985/96, 33986/96) (27.09.1999). State of Georgia v. Anthony Powell, Georgia Supreme Court (23.11.1998). State v. Lawrence & Gardner, Texas Supreme Court (according to IGLHRC 1998). State v. Cuiffini 395 A2d 904, App. Div. (N.J. 1978). State v. Pilcher, 242 N.W.2d 348 (Iowa 1976). Stubbings & Others vs. UK, ECtHR, Judgement (22.10.1996). Sutherland v. UK, ECmHR, Report (appl. 25186/94) (1997). The People v. T.A.J., Cal. Ct. App., 1st App. Distr., Div.2, A076464, 9th April (1998). Toonen v. Commonwealth of Australia, Communication No. 488/1992, 50th session, United Nations Human Rights Committee CCPR/C/50/D/488/1992 (1994). X & Y v. NL, ECtHR, judgement 26.03.1985 (EuGRZ 1985, 297).
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Graupner, H. (1997a). Keine Liebe zweiter Klasse—Diskriminierungsschutz und Partnerschaft f¨ur gleichgeschlechtlich L(i)ebende, Rechtskomitee LAMBDA, Vienna. ¨ Graupner, H. (1997b). Sexualit¨at, Jugendschutz, & Menschenrechte—Uber das Recht von Kindern und Jugendlichen auf sexuelle Selbstbestimmung, 2 Volumes, Peter Lang, Frankfurt, M/Berlin/ Bern/New York/Paris/Vienna. Graupner, H. (1997c). Sexuelle M¨undigkeit—Die Strafgesetzgebung in europ¨aischen und außereurop¨aischen L¨andern, Zeitschrift f¨ur Sexualforschung 10(4): 281–310, Stuttgart. Graupner, H. (1997d). Austria. In West, D. J., and Green, R. (eds.), Socio-Legal Control of Homosexuality—A Multi-Nation Comparison (pp. 269–287). Plenum: New York. Graupner, H. (1997e). Wider die Gewalt—f¨ur die selbstbestimmte Sexualit¨at, Das neue Sexualstrafrecht in Spanien und Italien (Teil I), Sexus 1 (II-IV), Aaptos: Vienna. Graupner, H. (1997f). Wider die Gewalt—f¨ur die selbstbestimmte Sexualit¨at, Das neue Sexualstrafrecht in Spanien und Italien (Teil I), Sexus 2 (II-IV), Aaptos: Vienna. Graupner, H. (1998a). Von “Widernat¨urlicher Unzucht” zu “Sexueller Orientierung”—Homosexualit¨at & Recht. In Roth, R., and Hey, B. (eds.), Que(e)erdenken: Weibliche/m¨annliche Homosexualit¨at und Wissenschaft, Studienverlag, Innsbruck. ¨ Graupner, H. (1998b). Homosexualit¨at und Strafrecht in Osterreich, 6th ed., Rechtskomitee LAMBDA: Vienna. Graupner, H. (1998c). Keine Liebe zweiter Klasse—Diskriminierungsschutz und Partnerschaft f¨ur gleichgeschlechtlich L(i)ebende, 2nd ed., Rechtskomitee LAMBDA: Vienna. Graupner, H. (1998d). Update on Austria. Euroletter 65 (November). Graupner, H. (2000). Keine Liebe zweiter Klasse—Diskriminierungsschutz und Partnerschaft f¨ur gleichgeschlechtlich L(i)ebende, 3rd ed., Rechtskomitee LAMBDA: Vienna. Graupner, H. (1999). Love versus Abuse—Crossgenerational Sexual Relations of Minors: A Gay Rights Issue? Journal of Homosexuality 37(4): 23–56. Health Council of the Netherlands. (1969). Memorie van Toelichting, Bijlage 4, Zitting, 1969–70— 10347; German Translation: Speijer-Report, Pais Press Produkt, Schweiz, 1976. Horstkotte, H. (1984). Ages and Conditions of Consent in Sexual Matters. In Council of Europe, European Committee on Crime Problems, Sexual Behaviour and Attitudes and Their Implications for Criminal Law. Reports presented to the 15th Criminological Research Conference, 1982, p. 165ff, Strasbourg. House of Commons. (1994). Minutes of the Debate on the Criminal Justice and Public Order Bill, 21.02.1994, 48 CD 21/28, London. Human Rights Committee. (1998). Concluding Observations to the Report of Austria Submitted under Art. 40 International Convenant of Civil and Political Rights, 46th session, Geneva: 11.11.1998. International Gay and Lesbian Human Rights Commission (IGLHRC). (1998). IGLHRC Celebrates the 50th Anniversary of the UDHR, email 11.12. Justis og politidepartementet. (1997). Seksuallovbrudd—Straffelovkommisjonens delutredning VI, NOU 1997:23, Oslo. Ministry of Justice. (1997). Letter to the Author, 07.07., Kiev. Ministry of Labour. (1998). Violence Against Women—Government bill, 1997/98:55, Fact Sheet, Swedish Government Offices: Stockholm. Niederl¨andische Strafrechtsreformkommission (Melai-Kommission). (1980). Schlußbericht, 1980, see Edward Brongersma, Schutzalter 12 Jahre?—Sex mit Kindern in der niederl¨andischen Gesetzgebung, in: Angelo Leopardi, Der p¨adosexuelle Komplex, S. 213ff, Berlin/Fft. 1988. Note. (1991). Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex. 104 Harvard Law Review 1660. Oikeusministeri¨on. (1993). Seksuaalirikokset—Rikoslakiprojektin ehdotus. Oikeusministeri¨on lainvalmisteluosaston julkaisu 8. Helsinki. ¨ Osterreichischer Nationalrat. (1995). Unterausschuß des Justizausschusses, Zusammenfassende Darstellung der Expertenanh¨orung zu den §§ 209, 220, 221 StGB, 10.10.1995 (Doc: U-AUJUS.DOC). Parliamentary Assembly of the Council of Europe. (2000). Opinion No. 216, 26th January. Pizarro Beleza, T. (1996). Sem Sombra de Pecado—O Repensar dos Crimes Sexuais na Revisao do C´odigo Penal, Lisboa. Policy Advisory Committee on Sexual Offences. (1981). Report on the Ages of Consent in Relation to Sexual Offences, London.
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Posner, R. A., and Silbaugh, K. B. (1996). A Guide to America’s Sex Laws. The University of Chicago Press: Chicago & London. Rebane, I. (1980). Commented Soviet Estonian Penal Code. Eesti Raamat: Tallin. Stonewall. (1998). First Step to Equalize Age of Consent in UK, Euroletter 61, 4 (July). Schweizer Expertenkommission f¨ur die Revision des Strafgesetzbuchs. (1977). Aenderung des Strafgesetzbuches und des Milit¨arstrafgesetzes betreffend die Strafbaren Hanldungen gegen Leib und Leben, gegen die Sittlichkeit und gegen die Familie: Vorentwurf und Erl¨auternder Bericht zu den Vorentw¨urfen, 3.82 600 14786/1, 3.82 1400 14786/2, Bern. Swedish Commission on Sexual Offences. (1976). Kjellin-Sexualbrottsutredningen, Sexuella o¨ vergrepp, Stockholm, 1976; (1) see Brongersma; E.: The Meaning of “Indecency” with Respect to Moral Offences Involving Children, British Journal of Criminology, 20, 20–34, 1980; (2) see Council of Europe: Sexual Behaviour and Attitudes and Their Implications for Criminal Law, Reports presented to the 15th Criminological Research Conference, 1982, European Committee on Crime Problems, Strasbourg, 1984; (3) see Verband von, 1974: Ein Land schafft gleiches Recht—Beitrag zur Diskussion um Paragraph 175 StGB nach amtlichen Drucksachen des Schwedischen Reichstages, Hamburg, 1979. The Law Reform Commission of Ireland. (1989). Consultation Paper on Child Sexual Abuse, Dublin. The Law Reform Commission of Ireland. (1990). Report on Child Sexual Abuse, Dublin. Walmsley, R., and White, K. (1979). Sexual Offences—Consent and Sentencing, Home Office Research Study No. 54, London. Wockner, R. (1998). House of Lords Stalls Age-of-Consent Change, Euroletter 62, 10 (August).
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Fraternal Birth Order and Sexual Orientation in Pedophiles Ray Blanchard, Ph.D.,1,2,4 Howard E. Barbaree, Ph.D.,1,2 Anthony F. Bogaert, Ph.D.,3 Robert Dickey, M.D., F.R.C.P.(C),1,2 Philip Klassen, M.D., F.R.C.P.(C),1,2 Michael E. Kuban, M.Sc.,1 and Kenneth J. Zucker, Ph.D.1,2
Whether homosexual pedophiles have more older brothers (a higher fraternal birth order) than do heterosexual pedophiles was investigated. Subjects were 260 sex offenders (against children age 14 or younger) and 260 matched volunteer controls. The subject’s relative attraction to male and female children was assessed by phallometric testing in one analysis, and by his offense history in another. Both methods showed that fraternal birth order correlates with homosexuality in pedophiles, just as it does in men attracted to physically mature partners. Results suggest that fraternal birth order (or the underlying variable it represents) may prove the first identified universal factor in homosexual development. Results also argue against a previous explanation of the high prevalence of homosexuality in pedophiles (25% in this study), namely, that the factors that determine sexual preference in pedophiles are different from those that determine sexual preference in men attracted to adults. An alternative explanation in terms of canalization of development is suggested. KEY WORDS: birth order; canalization; homosexuality; pedophilia; phallometry; sexual orientation; sibling sex ratio.
INTRODUCTION Studies of American, British, Canadian, and Dutch subjects have repeatedly shown that birth order correlates with sexual orientation in men (Blanchard, 1997); 1 Centre
for Addiction and Mental Health, Toronto, Ontario, Canada. of Psychiatry, Faculty of Medicine, University of Toronto, Toronto, Ontario, Canada. 3 Health Studies Program, Brock University, St. Catharines, Ontario, Canada. 4 To whom correspondence should be addressed at CAMH—Clarke Division, 250 College Street, Toronto, Ontario M5T 1R8, Canada; e-mail: Ray
[email protected]. 2 Department
463 C 2000 Plenum Publishing Corporation 0004-0002/00/1000-0463$18.00/0 °
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homosexual men have a higher mean birth order (i.e., more older siblings) than comparable heterosexuals. It has further been shown that homosexual men have a higher birth order than heterosexual men primarily because they have a greater number of older brothers. They do not differ with regard to older sisters, once their number of older brothers has been taken into account (Blanchard and Bogaert, 1996a,b; Blanchard et al., 1998; Jones and Blanchard, 1998). This means that the probability a man will be homosexual increases only in proportion to his number of older brothers; older sisters neither increase nor decrease the probability of homosexuality in later-born males. This phenomenon has therefore been termed the fraternal birth order effect. Virtually all this research has been carried out on men who are sexually attracted to physically mature partners. Only two studies have investigated whether sexual orientation also correlates with fraternal birth order in pedophiles. One study found that homosexual pedophiles do have a higher fraternal birth order (more older brothers) than heterosexual pedophiles (Bogaert et al., 1997); the other failed to confirm this difference for men with sexual offenses against prepubescent boys or girls, but did confirm it for men with offenses against pubescent boys or girls (Blanchard and Bogaert, 1998). The relation of fraternal birth order to sexual orientation among pedophiles is relevant to theories of pedophilia and of homosexuality. The best epidemiological evidence indicates that only 2–4% of men attracted to adults prefer men (ACSF Investigators, 1992; Billy et al., 1993; Fay et al., 1989; Johnson et al., 1992); in contrast, around 25–40% of men attracted to children prefer boys (Blanchard et al., 1999; Gebhard et al., 1965; Mohr et al., 1964). Thus, the rate of homosexual attraction is 6–20 times higher among pedophiles. One explanation of this discrepancy is that the factors that determine sexual preference in pedophiles are different from those that determine sexual preference in men attracted to adults (Freund et al., 1984). A confirmed finding that fraternal birth order correlates with sexual preference in both groups would indicate that this explanation is incorrect or, at best, incomplete. Other hypotheses would have to be explored—for example, the possibility that the same factors increase the probability of homosexuality in men attracted to adults and men attracted to children, but they have a greater impact on the latter. The correlation of fraternal birth order and sexual orientation in pedophiles is equally relevant to theories of homosexual development. No common feature has yet been identified in the family demographics or developmental histories of all types of homosexual men. The best established predictor of adult homosexuality— cross-gender behavior in childhood (Bailey and Zucker, 1995)—does not appear to characterize homosexual pedophiles (Freund and Blanchard, 1987; Freund et al., 1982), although there is some evidence this group may be less masculine in boyhood without being more feminine (Freund and Blanchard, 1987). A finding that high mean fraternal birth orders characterize men attracted to boys as well as those
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attracted to other men—homosexual groups who differ as widely as possible in their own characteristics and in the characteristics of their desired partners—would suggest that fraternal birth order (or the underlying variable it reflects) may be the first universal factor in homosexual development to be identified. The inconsistency of the prior findings concerning the correlation of fraternal birth order and sexual orientation in pedophiles may relate to methodologic problems in the two relevant studies. The first of these was a retrospective study of sex offenders, which included only those subjects whose clinical charts happened to contain birth order data (Bogaert et al., 1997). It is therefore possible that some selection bias affected its results. The second was a reanalysis of archived data from a classic, large-scale study of sexual offenders (Blanchard and Bogaert, 1998). The recoverable information regarding the subjects’ offense histories was minimal, and it is possible that the sexual preferences of the pedophiles in that study were not accurately classified from the available information. Our study was therefore undertaken to settle the empirical question. This is the first study in which data were collected with the express purpose of examining the relation of fraternal birth order to sexual orientation in a consecutive series of pedophiles. It was also the first to examine directly the relation between pedophiles’ fraternal birth orders and their penile responses to laboratory stimuli depicting male and female adults and children.
METHOD Subjects There were two sources of pedophilic patients: Male outpatients referred to the Kurt Freund Phallometric Laboratory of the Centre for Addiction and Mental Health—Clarke Division (Toronto, Ontario) for psychophysiological assessment of their erotic preferences, and incarcerated male sex offenders undergoing assessment or treatment at the Sexual Behaviour Clinic of Warkworth Institution (Campbellford, Ontario). A patient was selected for the present study if he met one or more of the following inclusion criteria: (a) He had one or more charges, convictions, or credible accusations of sexual interaction with boys or girls age 14 or under; (b) he had one or more self-reported instances of sexual interaction with boys or girls age 14 or under; or (c) he verbally acknowledged that boys or girls age 14 or under are more sexually interesting to him than men or women aged 17 or over. In the foregoing criteria, sexual interaction included noncontact offenses (primarily exposing) as well as offenses involving physical touching. An otherwise eligible patient was eliminated from the study if he met either of the following exclusion criteria: (a) He had any incest offenses, defined as offenses against biological children, stepchildren, or children living in the same household
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toward whom he acted as a father; or (b) he had any offenses against males or females age 15 or over. Two further exclusion criteria disqualified any subject from the study, patient or control: (a) The subject was a twin, or (b) the subject was not sure that he knew of all children born to his biological mother. Of the 260 pedophilic subjects selected according to the foregoing criteria, 245 came from the Toronto site and 15 from the Campbellford site. All subjects were examined from 1995 through 1998. Two of the 245 Toronto subjects had been assessed at the Kurt Freund Phallometric Laboratory 10 and 16 years before, respectively, and data from their earlier assessments had been included in the study by Bogaert et al. (1997). There were 14 patients who complained of erotic attraction to children (the third inclusion criterion) but stated that they had never acted on their feelings. The number and ages of the children involved in the offenses of the remainder are inexact quantities, partly because these occasionally had to be estimated (if, for example, a man exposed himself to a group of schoolchildren), and partly because some patients undoubtedly concealed offenses for which they were never apprehended. The 246 patients with known offenses involved a total number of 913 children, for a mean of 3.71 children per patient (SD = 10.50). Children <6 years old accounted for 12% of the total, children 6–11 years old accounted for 69%, and children 12–14 years old accounted for 19%. Control subjects were drawn from a pool of 663 men that included subjects who had participated in an earlier study (Blanchard and Bogaert, 1996b) and additional subjects who were recruited and examined in an identical manner to augment that pool. These subjects were paid $10 (Canadian) for completing a self-administered, anonymous questionnaire concerning their family background and other personal information. They were recruited through clubs for promoting business contacts, particular charities, or social events for specific communities and similar organizations; and through advertisements, posted on two university campuses, for heterosexual research subjects. Subjects recruited at club meetings or organized community events were solicited with the understanding that payment would be made to designated charities on their behalf; those recruited as individuals were paid for their participation directly. All subjects indicated, in response to a sexual-orientation item on the questionnaire, that they were heterosexual. It is reasonable to assume, on purely statistical grounds, that virtually 100% of them were gynephilic (i.e., most interested sexually in physically mature females), and they are so labeled in this article. An elaborate matching procedure, which is described later, was used to select 260 men from this pool. Of those selected, 162 had been in the earlier study and 98 had not. The matching procedure ensured that the mean age of the controls, 33.97 years (SD = 12.83), was very close to that of the pedophilic patients, 34.73 years (SD = 14.20). It was not feasible to match subjects on education, however, and the groups did differ in this regard. Education was coded on an 8-point ordinal scale. The
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median pedophilic patient had some high school education, but without graduation; the median control subject had either completed or was currently enrolled in a bachelor’s program. The educational difference between patients and controls was significant [Mann–Whitney U(N = 520) = 8541.00, p < .001]. This statistical test was two-tailed, as were all others reported in this article unless otherwise specified. The groups did not differ significantly in ethnic origin: 87% of the patients and 93% of the control subjects described themselves as White. Materials and Procedure Historical and Demographic Data Information on a pedophilic patient’s history of sexual offenses came primarily from objective documents on his chart; for example, reports from probation and parole officers. These offenses were recorded on a standardized protocol form, as were any additional offenses that he might admit. This form was also used to record the patient’s subjective self-report regarding the age and sex of persons who most interest him sexually. For those procedures in which patients were selected or classified on the basis of their sexual offenses, this was done on the basis of all available information regarding their history of sexual offenses, not just on the basis of their latest offense or some otherwise determined index offense. In such procedures, patients with no sexual offenses were selected or classified according to their self-report instead. Information concerning personal demographics (e.g., a man’s age, educational level, ethnic origin) and family demographics (e.g., the ages of the man’s parents at the time of his birth, the sequence of boys and girls in his sibship) was collected from both patients and controls by means of a self-administered questionnaire. Only children born to the subject’s biological mother were recorded; that is, maternal half-siblings were recorded but paternal half-siblings were not. There were both theoretical and methodologic reasons for this: (1) maternal halfsiblings—like full siblings—develop in the same uterus as the subject, whereas paternal half-siblings do not; (2) maternal half-siblings are more likely than paternal half-siblings to be reared in the same home as the subject; and (3) a subject is more likely to know of all children carried by his mother than he is to know of all children sired by his father. In this study, maternal half-siblings were counted the same as full siblings. Phallometric Measures For the pedophilic patients at the Toronto site, phallometric testing was used to assess the subject’s attraction to male versus female prepubescent children,
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male versus female pubescent children, and male versus female adults. In the phallometric test procedure, penile blood volume, the dependent measure of erotic arousal, is monitored during the presentation of potentially erotic test stimuli. The test used in this study is a modification of one described in detail elsewhere (Freund and Blanchard, 1989). The stimuli are audiotaped narratives presented through headphones and accompanied by slides. There are seven categories of narratives, which describe sexual interactions with prepubescent girls, pubescent girls, adult women, prepubescent boys, pubescent boys, and adult men, and also solitary, nonsexual activities (“neutral” stimuli). All narratives are written in the second person and present tense (e.g., “You are babysitting your neighbors’ little girl for the evening”) and are approximately 100 words long. The narratives describing heterosexual interactions are recorded with a woman’s voice, and those describing homosexual interactions, with a man’s. Neutral stimuli are recorded with both. Each test trial consists of one narrative, accompanied by photographic slides showing the front view, rear view, and genital region of a nude model corresponding in age and sex to the topic of the narrative. Neutral narratives are accompanied by slides of landscapes. The full test consists of four blocks of seven trials, with each block including one trial of each type in fixed pseudorandom order. The length of each trial is 54 sec; however, the interval between trials varies because penile blood volume must return to its baseline (flaccid) value before a new trial is started. The time required to complete a test is usually about 1 hr. Penile blood volume change is sampled four times per second throughout a trial. The subject’s response is quantified in two ways: as the extremum of the curve of blood volume change (i.e., the greatest departure from initial value occurring during the 54 sec of the trial), and as the area under the curve. To identify subjects whose penile blood volume changes might reflect random physiological variation rather than erotic arousal, the mean of the three highest positive extremum scores— a quantity called the Output Index (Freund, 1967)—is calculated. The phallometric data of subjects who fail to meet the criterion output index of 1.0 ml are excluded. Each subject’s 28 extremum scores are then converted into standard scores, based only on his own extremum data, and the same operation is carried out on his area scores. Next, for each subject, the standardized extremum and area scores are combined to yield a separate composite score for each of the 28 trials, using the formula, (z iE + z iA )/2, where z iE is the standardized extremum score for the ith trial, and z iA is the standardized area score for the ith trial. These operations are carried out for the following reasons: (a) In phallometric work, some transformation of raw scores is generally required in combining data from different subjects, because the between-subjects variability in absolute magnitude of blood volume changes can otherwise obscure even quite reliable statistical effects. There are numerous sources of such variability; for example, the subject’s age, his state of health, the size of his penis, and the amount of time since his last ejaculation from masturbation or interpersonal sexual activity. Empirical research has shown the z-score transformation to be satisfactory (Harris et al., 1992; Langevin, 1985).
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(b) The (highly correlated) area and extremum z-scores are averaged to obtain a composite that reflects both the speed and amplitude of response and lessens the impact of anomalous responses; that is, large change from initial value but small area or vice versa (Freund et al., 1983). In the last stage of basic processing, the data are reduced to seven final scores for each subject by averaging his four composite scores in each of the seven stimulus categories. These seven category scores are taken as measures of the subject’s relative erotic interest in adult women, pubescent girls, prepubescent girls, and so on. For the present study, the previously mentioned category scores were used to compute three special measures of sexual orientation. A Pedophilic Sex-Preference Index was calculated as the subject’s category score for prepubescent boys minus his category score for prepubescent girls, and a Hebephilic Sex-Preference Index was similarly calculated as the subject’s category score for pubescent boys minus his category score for pubescent girls. Finally, a Teleiophilic Sex-Preference Index (Greek t´eleios, “full-grown”) was calculated as the subject’s category score for adult men minus his category score for adult women. It should be noted that many pedophilic subjects can and do control their reactions during phallometric testing in order to produce a more “normal” response profile (e.g., Freund and Blanchard, 1989). This is primarily accomplished by suppressing responses to pubescent and prepubescent stimulus categories. There was no reason to expect, however, that such attempts at test manipulation might produce spurious positive correlations between the subject’s number of older brothers and his scores on the Pedophilic or Hebephilic Sex-Preference indices. On the contrary, the most likely result of such efforts would be to diminish the apparent size of true positive correlations. Consent All of the patients and the supplemental volunteer subjects signed consent forms giving permission for their data to be used for research purposes. Control subjects for the earlier study (Blanchard and Bogaert, 1996b) had instead been given an information sheet that stated that the purpose of the study was to examine the relation between people’s family backgrounds and their later sexual orientation as adults. That alternative procedure had been approved by the University of Toronto Human Subjects Review Committee, which also examined and approved the information sheet. RESULTS The previously described version of the phallometric test was administered to 214 of the Toronto patients. The data of 18 were discarded because of technical
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Table I. Linear Regressions of the Three Sex-Preference Indices on the Subject’s Number of Older Brothers, Older Sisters, Younger Brothers, and Younger Sisters Sex-preference indices (criteria) Pedophilic Sibling-type (predictors) Older brothers Older sisters Younger brothers Younger sisters
Hebephilic
Teleiophilic
β
p
β
p
β
p
.26 −.06 .01 .09
.001 .47 .93 .25
.15 −.04 −.02 .12
.07 .64 .78 .12
.20 −.11 .03 .03
.01 .17 .72 .70
problems (e.g., the patient was too obese to get the volumetric apparatus properly seated) or gross uncooperativeness from the patient (e.g., he continued to avoid looking at the visual stimuli, despite repeated instructions to attend to them). The data of another 6 were discarded because the patient responded insufficiently to meet the Output Index criterion. The phallometric data of the remaining 190 patients were examined in a series of linear regression analyses. A separate analysis was carried out for each of the three sex-preference indices, which served as the criterion variables. All analyses used the same four predictor variables—namely, the patient’s number of older brothers, older sisters, younger brothers, and younger sisters. The predictors were entered directly into the regression equation. The results (specifically, the standardized β coefficients and their associated significance levels) are shown in Table I. A positive β coefficient in Table I means that a greater number of siblings (of a particular type) was associated with a higher (more homosexual) score on the corresponding sex-preference index. Number of older brothers correlated with the Pedophilic Sex-Preference Index and, to a lesser degree but still significantly, with the Teleiophilic Sex-Preference Index. The correlation between number of older brothers and the Hebephilic Sex-Preference Index was in the same direction, but this correlation did not reach the .05 level of statistical significance. None of the other three types of siblings correlated significantly with any of the sex-preference indices. These results indicate that the more older brothers a pedophile has, the greater his sexual interest in boys compared with girls. Two additional linear regression analyses were conducted, both using the Pedophilic Sex-Preference Index as the criterion variable. The first of these added the age of the patient’s mother at the time of the patient’s birth as a fifth predictor variable; the second added the age of the patient’s father instead. The patients in the first analysis were those 175 who knew their mother’s age, and those in the second were the 165 who knew their father’s age. The results did not change any of the conclusions. The number of older brothers, and only the number of older brothers, was significant in both analyses. Neither maternal nor paternal age correlated with the relative preference for male vs female children (β = .01,
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p = .90, and β = .08, p = .33, respectively). These results demonstrate that the observed fraternal birth order effect was not really an artifact of parental age. The linear regression analyses of phallometric data were a sensitive means for showing that sexual orientation correlates with number of older brothers among pedophiles as it does among teleiophiles. These analyses did not, however, show whether homosexual pedophiles (conceived as a discrete group) have more older brothers than men in the general population, or where heterosexual and bisexual pedophiles stand in this regard. Another analysis was therefore carried out, using the already-mentioned gynephilic control group. In this analysis, the full group of 260 Toronto and Campbellford pedophiles were divided into three groups according to their offense histories or self-reported erotic preferences: 152 heterosexual pedophiles (men with offenses or self-reported attractions involving girls only), 43 bisexual pedophiles (boys and girls), and 65 homosexual pedophiles (boys only). These were matched with an equal number of gynephilic controls, bringing the total number of subjects in this analysis to 520. The gynephilic controls were matched to the pedophilic patients on two variables. The first of these was the subject’s year of birth. This variable was used because demographic trends during the years when a sample of randomly selected subjects were born can have a significant effect on that sample’s expected birth order (Hare and Price, 1969, 1974; Price and Hare, 1969). The second variable was the subject’s total number of siblings other than older brothers—that is, older sisters plus younger brothers plus younger sisters. This variable was used as a means of controlling for family size while allowing the subject’s number of older brothers to vary between groups. The decision to add these three classes of siblings together was justified by the findings of the linear regression analyses that none of them correlated with sexual orientation, once number of older brothers was taken into account. The 260 controls were randomly selected from the pool of 663 gynephilic volunteers so as to match the joint distribution of pedophilic patients by year of birth and number of siblings other than older brothers. This was effected as follows: The combined group of pedophilic patients was divided into quartiles according to year of birth. These quartiles were cross-tabulated with the subject’s total number of siblings other than older brothers. The same procedure was carried out on the pool of gynephilic volunteers. From each cell in the volunteers’ table, a sample of controls, equal in size to the number of patients in the corresponding cell in the patients’ table, was selected. This is most easily understood by example: There were 13 patients and 29 gynephilic volunteers who were born between 1952 and 1962, and who had a total of 3 siblings other than older brothers. A computer program therefore randomly selected 13 of the 29 volunteers for the control group. When the number of available volunteers in a cell was smaller than the number of patients, adjacent cells in the volunteers’ table were combined. The control group selected by this procedure was closely similar to the combined group of pedophiles on the two relevant variables. The mean year of birth for
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Fig. 1. The mean number of siblings of each type reported by each group. “Gyne Controls,” gynephilic controls; “Hetero Pedo,” heterosexual pedophiles; “Bisex Pedo,” bisexual pedophiles; “Homo Pedo,” homosexual pedophiles.
the controls was 1960.73 (SD = 13.84) and that for the pedophiles was 1961.57 (SD = 14.26). The controls’ mean number of siblings other than older brothers was 2.29 (SD = 1.98), and that of the patients was 2.28 (SD = 1.99). Figure 1 shows the mean numbers of older brothers, older sisters, younger brothers, and younger sisters for each of the four groups. One would expect, both from the results of the regression analyses and from the fact that these variables were used in selecting the matched controls, that there would be no differences between groups in mean numbers of older sisters, younger brothers, or younger sisters. This was confirmed by one-way ANOVAs (all Fs < 0.40). In contrast, a oneway ANOVA for number of older brothers, the “unconstrained” variable, revealed the presence of significant between-groups differences (F(3, 516) = 4.20, p = .006). A set of Dunnett tests, which compared each of the three pedophilic groups with the gynephilic control group, showed that the homosexual pedophiles had more older brothers than the controls ( p = .002), but the heterosexual and bisexual pedophiles did not ( p = .29, and p = .99, respectively). These results confirm the finding of the regression analyses that fraternal birth order correlates with sexual
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orientation in pedophiles; they further suggest that fraternal birth order does not correlate with pedophilia per se. A final series of analyses investigated whether the sibships of any of the groups contained an unusual excess of males or females. The variable, sibling sex ratio, is commonly reported as the ratio of brothers to sisters collectively reported by a given group of subjects (who are usually referred to as the probands in this type of research). In White populations, the ratio of male live births to female live births is close to 106 males per 100 females (Chahnazarian, 1988; James, 1987). In the computation of inferential statistics, this value is more conveniently expressed as the proportion of males rather than the ratio of males to females, that is, .515 (106/206). For reasons pertaining to the existence of slight betweencouples variability in the probability of producing male offspring, an adjusted value of .518 has been suggested for use when a sample of probands consists entirely of males (James, 1998). In this study, the gynephilic controls had 380 brothers and 368 sisters, for a sibling sex ratio of 103 (and a proportion of .508); the heterosexual pedophiles had 243 brothers and 228 sisters, for a sibling sex ratio of 107 (.516); the bisexual pedophiles had 57 brothers and 58 sisters, for a sibling sex ratio of 98 (.496); and the homosexual pedophiles had 123 brothers and 94 sisters, for a sibling sex ratio of 131 (.567). These data were compared with the adjusted population value (.518) using the z approximation to the binomial test. The sibling sex ratios of the first three groups showed no evidence of a greater than expected proportion of brothers (all p values > .30, one-tailed). The sibling sex ratio of the homosexual pedophiles, however, did approach statistical significance ( p = .08, one-tailed). This result is probably not redundant with the finding of a high fraternal birth order for this group, because the sex ratio was high for siblings born after the proband (123) and for those born before the proband (137). DISCUSSION Implications for Sexual Orientation The results show that pedophiles with more older brothers have more sexual interest in boys relative to their sexual interest in girls. These results confirm the prior finding that sexual orientation correlates with fraternal birth order in pedophiles (Bogaert et al., 1997) and thus establish that this correlation extends beyond men who prefer physically mature partners (teleiophiles). The present study did not address the specific mechanism linking older brothers and homosexuality. The authors have previously speculated that the proximate cause is maternal antibodies to Y-linked minor histocompatibility antigens (H-Y antigens), which are raised in increasing concentrations by each succeeding male fetus, and which have increasingly stronger effects on sexual differentiation in the
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brain in each succeeding male fetus (Blanchard and Bogaert, 1996b; Blanchard and Klassen, 1997). This hypothesis is consistent with a variety of evidence, including the apparent irrelevance of older sisters to the sexual orientation of later-born males, the absence of any correlation between birth order and sexual orientation in females, the probable involvement of H-Y antigen in the development of sextypical traits, and the detrimental effects of immunization of female mice to H-Y antigen on the reproductive performance of subsequent male offspring (Blanchard, 1997; Blanchard and Klassen, 1997). There are, of course, other possible explanations of the fraternal birth order effect besides the maternal immune hypothesis (e.g., Bem, 1996; Sulloway, 1996, pp. 433–434, 488). A variety of these has been reviewed elsewhere (Blanchard, 1997). The most popular rival hypothesis is the notion that sexual interaction with older males increases a boy’s probability of developing a homosexual orientation, and that a boy’s chances of engaging in such interactions increase in proportion to his number of older brothers (e.g., Jones and Blanchard, 1998). Although this hypothesis may seem intuitively plausible, there are little empirical data to recommend it (see discussion in Purcell et al., in press). Implications for Pedophilia The proportion of pedophiles in this study who were exclusively or primarily interested in boys, as assessed from their offense histories, was 25%. This result is consistent with previous studies that suggest the prevalence of homosexuality is about 10 times higher in pedophiles than in teleiophiles (Blanchard et al., 1999; Gebhard et al., 1965; Mohr et al., 1964). As previously noted, one explanation of this discrepancy is that the factors that determine sexual preference in pedophiles are different from those that determine sexual preference in teleiophiles (Freund et al., 1984). The finding that fraternal birth order correlates with sexual preference in both groups shows that this explanation is incorrect or, at best, incomplete. An alternative explanation for the high prevalence of homosexuality in pedophiles is the following: Pedophilia and homosexuality tend to occur in the same men because these individuals are generally less resistant to factors that divert psychosexual development from the species-typical outcome of sexual interest in receptive, physically mature females. This hypothesis is consistent with evidence that other sexually variant behaviors, for example, exhibitionism, are also common in pedophiles (Paitich et al., 1977; Raymond et al., 1999; Rooth, 1973). This hypothesis proposes that the clustering of sexual variations results from the absence of a single protective factor, rather than the presence of multiple pathogenic factors, or a single pathogenic factor with multiple effects. The missing protective factor could be analogous to, or an aspect of, the biological phenomenon known as canalization—that is, the tendency for feedback loops to return a developing system to its usual pathway, when that system has been diverted to a minor extent
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from it (e.g., Waddington, 1962). As used by biologists, this term includes mechanisms that stabilize development against disruptive environmental influences and those that buffer development against genetic-mutational loss of function (Wilkins, 1997). Of particular relevance to the present discussion is the finding that there are individual differences in efficiency of canalization, with some persons being more prone to multiple developmental disruptions than others (Bogle et al., 1994; Cronk and Reed, 1981; Prader et al., 1963; Rose et al., 1987; Shapiro, 1975). The hypothesis that the failure of some protective (or corrective) mechanism might account for the emergence of multiple paraphilias has previously been advanced in other contexts. For example, the clustering of fetishism, transvestism, and autogynephilia (sexual arousal in association with thoughts of having a woman’s body) has been attributed to “the failure of some developmental process that, in normal males, keeps heterosexual learning ‘on track’ ” (Blanchard, 1991, p. 247). In the present case, the correlation of pedophilia and mental retardation (Blanchard et al., 1999) suggests that the hypothesized failure of canalization may sometimes be part of a larger picture of neurological dysfunction. The canalization-failure hypothesis—or any similar hypothesis that focuses on the susceptibility of the individual—can explain why the prevalence of homosexuality is higher in pedophiles than in teleiophiles, even if the factors that influence sexual orientation in the two groups are identical in nature and in objective magnitude. This hypothesis changes the original question from, “Why is the prevalence of homosexuality so high in pedophiles?” to “Why do the same individuals tend to become both homosexual and pedophilic?” The greatest drawback of the hypothesis is its silence regarding the difference in cross-gender behavior between boys who will later be homosexual pedophiles and those who will later be attracted to adult men—a difference that was handily explained by the hypothesis that homosexuality has different etiologies in pedophiles and teleiophiles (Freund et al., 1984). This issue may prove a fatal flaw in the canalization-failure hypothesis, leading to its eventual rejection, or merely a temporary lack that is filled by subsequent theoretical elaboration. Implications for Gender Identity Disorder The topic of cross-gender behavior is also raised by one of this study’s secondary findings. Several studies of homosexual men, including some of the largest studies of homosexuality ever conducted, have found that homosexual men have higher than expected sibling sex ratios. This research has been reviewed in detail elsewhere (Blanchard, 1997). In the authors’ experience, homosexual groups who have a sibling sex ratio that is significantly higher than the expected value of 106 always have an excess of younger brothers as well as an excess of older brothers, although the excess of younger brothers is considerably smaller (Blanchard, 1997). This suggests that a high sibling sex ratio is not merely an alternative view of a
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high fraternal birth order, but perhaps a separate phenomenon requiring its own explanation (Blanchard, 1997). An early review of the evidence (Blanchard et al., 1995) suggested that high sibling sex ratios are specific to extremely feminine homosexual male groups (e.g., transsexuals). Several studies in the succeeding years seemed to confirm that hypothesis (Blanchard, 1997). The latest evidence, however, casts doubt on it. One recent study found a high sibling sex ratio in a sample of predominantly AfricanAmerican homosexual men, who were not recruited with regard to their gender role behavior, and who may or may not have been notably feminine (Bogaert, 1998). That result is consistent with the present finding of a sibling sex ratio of 131 for homosexual pedophiles (who, as already explained, are not feminine). That value was not statistically significant given the sample size (N = 217 siblings), but it is quite high in absolute terms. Moreover, the sibling sex ratio was high for the subjects’ younger siblings and for their older siblings. The present study, therefore, also suggests that the hypothesis of Blanchard et al. (1995) was incorrect. Implications for Societal Attitudes A few closing comments are necessary to preclude any misunderstanding or misuse of this study. First, the statistical association of homosexuality and pedophilia concerns developmental events in utero or in early childhood. Ordinary (teleiophilic) homosexual men are no more likely to molest boys than ordinary (teleiophilic) heterosexual men are to molest girls. Second, the causes of homosexuality are irrelevant to whether it should be considered a psychopathology. That question has already been decided in the negative, on the grounds that homosexuality does not inherently cause distress to the individual or any disability in functioning as a productive member of society (Friedman, 1988; Spitzer, 1981). ACKNOWLEDGMENTS Study supported in part by Standard Research Grant 410-95-0003 from the Social Sciences and Humanities Research Council of Canada to Ray Blanchard. The authors thank Heike Boedeker, James M. Cantor, Martin L. Lalumi`ere, Timothy Perper, Michael C. Seto, and Cathy Spegg for their various forms of assistance. REFERENCES ACSF Investigators. (1992). AIDS and sexual behaviour in France. Nature 360: 407–409. Bailey, J. M., and Zucker, K. J. (1995). Childhood sex-typed behavior and sexual orientation: A conceptual analysis and quantitative review. Dev. Psychol. 31: 43–55. Bem, D. J. (1996). Exotic becomes erotic: A developmental theory of sexual orientation. Psych. Rev. 103: 320–335.
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Billy, J. O. G., Tanfer, K., Grady, W. R., and Klepinger, D. H. (1993). The sexual behavior of men in the United States. Fam. Plann. Perspect. 25: 52–60. Blanchard, R. (1991). Clinical observations and systematic studies of autogynephilia. J. Sex Marital Ther. 17: 235–251. Blanchard, R. (1997). Birth order and sibling sex ratio in homosexual versus heterosexual males and females. Ann. Rev. Sex Res. 8: 27–67. Blanchard, R., and Bogaert, A. F. (1996a). Biodemographic comparisons of homosexual and heterosexual men in the Kinsey interview data. Arch. Sex. Behav. 25: 551–579. Blanchard, R., and Bogaert, A. F. (1996b). Homosexuality in men and number of older brothers. Am. J. Psychiat. 153: 27–31. Blanchard, R., and Bogaert, A. F. (1998). Birth order in homosexual versus heterosexual sex offenders against children, pubescents, and adults. Arch. Sex. Behav. 27: 595–603. Blanchard, R., and Klassen, P. (1997). H-Y antigen and homosexuality in men. J. Theor. Biol. 185: 373–378. Blanchard, R., Watson, M. S., Choy, A., Dickey, R., Klassen, P., Kuban, M., and Ferren, D. J. (1999). Pedophiles: Mental retardation, maternal age, and sexual orientation. Arch. Sex. Behav. 28: 111– 127. Blanchard, R., Zucker, K. J., Bradley, S. J., and Hume, C. S. (1995). Birth order and sibling sex ratio in homosexual male adolescents and probably prehomosexual feminine boys. Dev. Psychol. 31: 22–30. Blanchard, R., Zucker, K. J., Siegelman, M., Dickey, R., and Klassen, P. (1998). The relation of birth order to sexual orientation in men and women. J. Biosoc. Sci. 30: 511–519. Bogle, A. C., Reed, T., and Rose, R. J. (1994). Replication of asymmetry of a–b ridge count and behavioral discordance in monozygotic twins. Behav. Genet. 24: 65–72. Bogaert, A. F. (1998). Birth order and sibling sex ratio in homosexual and heterosexual non-white men. Arch. Sex. Behav. 27: 467–473. Bogaert, A. F., Bezeau, S., Kuban, M., and Blanchard, R. (1997). Pedophilia, sexual orientation, and birth order. J. Abnorm. Psychol. 106: 331–335. Chahnazarian, A. (1988). Determinants of the sex ratio at birth: Review of recent literature. Soc. Biol. 35: 214–235. Cronk, C. E., and Reed, R. B. (1981). Canalization of growth in Down syndrome children three months to six years. Hum. Biol. 53: 383–398. Fay, R. E., Turner, C. F., Klassen, A. D., and Gagnon, J. H. (1989). Prevalence and patterns of samegender sexual contact among men. Science 243: 338–348. Freund, K. (1967). Diagnosing homo- or heterosexuality and erotic age-preference by means of a psychophysiological test. Behav. Res. Ther. 5: 209–228. Freund, K., and Blanchard, R. (1987). Feminine gender identity and physical aggressiveness in heterosexual and homosexual pedophiles. J. Sex Mar. Ther. 13: 25–34. Freund, K., and Blanchard, R. (1989). Phallometric diagnosis of pedophilia. J. Consult. Clin. Psychol. 57: 100–105. Freund, K., Heasman, G., Racansky, I. G., and Glancy, G. (1984). Pedophilia and heterosexuality vs. homosexuality. J. Sex Mar. Ther. 10: 193–200. Freund, K., Scher, H., Chan, S., and Ben-Aron, M. (1982). Experimental analysis of pedophilia. Behav. Res. Ther. 20: 105–112. Freund, K., Scher, H., and Hucker, S. (1983). The courtship disorders. Arch. Sex. Behav. 12: 369–379. Friedman, R. C. (1988). Male Homosexuality: A Contemporary Psychoanalytic Perspective, Yale University Press, New Haven, CT. Gebhard, P. H., Gagnon, J. H., Pomeroy, W. B., and Christenson, C. V. (1965). Sex Offenders: An Analysis of Types, Harper & Row, New York. Hare, E. H., and Price, J. S. (1969). Birth order and family size: Bias caused by changes in birth rate. Br. J. Psychiat. 115: 647–657. Hare, E. H., and Price, J. S. (1974). Birth order and birth rate bias: Findings in a representative sample of the adult population of Great Britain. J. Biosoc. Sci. 6: 139–150. Harris, G. T., Rice, M. E., Quinsey, V. L., Chaplin, T. C., and Earls, C. (1992). Maximizing the discriminant validity of phallometric assessment data. Psych. Assess. 4: 502–511. James, W. H. (1987). The human sex ratio. Part 1: A review of the literature. Hum. Biol. 59: 721– 752.
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Psychiatric Comorbidity in Heterosexual Couples with Sexual Dysfunction Assessed with the Composite International Diagnostic Interview Jacques J. D. M. van Lankveld, Ph.D.,1,3 and Yvonne Grotjohann, M.A.2
Psychiatric comorbidity of sexual dysfunction (SD) in heterosexual couples was investigated with the Composite International Diagnostic Interview, version 1.1 (CIDI; WHO, 1992). Demographic data, diagnoses of sexual dysfunction according to DSM-IV criteria, CIDI data, and scores on the Golombok Rust Inventory of Sexual Satisfaction (GRISS: Rust and Golombok, 1986) were collected for 382 men and women with SD who applied for participation in a study of bibliotherapy. The prevalence of psychiatric disorder in the study sample was compared with the general population as documented in the NEMESIS epidemiological study in the Netherlands (Bijl et al., 1998). GRISS scores corroborated the diagnoses of SD. An increased prevalence of current anxiety disorder was found in sexually dysfunctional men (11.6%; χ 2 (df = 1) = 7.753; p = .005). An increased rate of lifetime diagnoses of affective (21.5%; χ 2 (df = 1) = 9.728; p = .002) and a near significant increased rate of lifetime anxiety disorders (19.9%; χ 2 (df = 1) = 5.642; p = .018) was found in men with SD. In the sexually dysfunctional female participants, a higher prevalence of current anxiety disorder was found (20.4%; χ 2 (df = 1) = 10.057; p = .002). Lifetime affective disorders (38.3%; χ 2 (df = 1) = 20.719; p < .001) as well as lifetime anxiety disorders (37.3%; χ 2 (df = 1) = 16.254; p < .001) were more prevalent than in the general female population. Psychiatric comorbidity in men and women with SD was significantly higher than that found in the general population. The increased comorbidity of psychiatric disorders in men and women with SD warrants adding efficient psychiatric screening to the standard intake assessment procedure of patients with SD. KEY WORDS: sexual dysfunction; psychopathology; psychiatric comorbidity.
1 Department
of Medical, Clinical and Experimental Psychology, Academic Hospital Maastricht, PO Box 5800, 6202 AZ Maastricht, The Netherlands; e-mail:
[email protected] 2 Department of Clinical Psychology, University Utrecht. 3 To whom correspondence should be addressed. 479 C 2000 Plenum Publishing Corporation 0004-0002/00/1000-0479$18.00/0 °
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INTRODUCTION The association of sexual dysfunction (SD) and psychiatric disorder has been studied from different points of view. Research has been conducted into psychiatric comorbidity in individuals and couples with SD, in epidemiologic studies, studies of sexology clinic populations, or in the investigation of predictors of sex therapy outcome. Research has also been conducted into the occurrence of SD as a concomitant disorder of psychiatric conditions (Offit, 1989) and into SD as an unwanted side effect of psychopharmacologic treatment (Crenshaw and Goldberg, 1996). The results of these research strategies will necessarily diverge. Depending on the inclusion criteria, the selected recruitment areas, and the recruitment strategies employed, results are tapped from widely varying sources, which will, theoretically, have limited overlap. The picture that emerges from published empirical studies thus far is incomplete and inconsistent in several respects. In the following paragraphs, studies from these areas of research are reviewed separately. A review of the literature regarding psychopharmacological effects on sexual functioning and the pertinent psychometric literature (Safir and Almagor, 1991) was considered to be outside the scope of this paper and is omitted.
Psychiatric Comorbidity in Individuals with Sexual Dysfunction Derogatis et al. (1981) reported the results of psychiatric evaluation according to DSM-II criteria of 325 patients of a sexology outpatient clinic with various SDs. Although not stated explicitly, it appears that the current clinical status was assessed. No reference was made to lifetime psychiatric diagnoses. Among the male patients with erectile disorder (n = 137), 63% received no diagnosis, 12% were diagnosed with personality disorder, 8% with affective disorder, 9% with anxiety disorder, 4% with adjustment disorder, 2% with somatoform disorder, and 3% with psychotic disorder. Among the men with premature ejaculation (n = 62), 66% received no diagnosis, 16% were diagnosed with personality disorder, 8% with affective disorder, 7% with anxiety disorder, and 3% with adjustment disorder. Among the female patients with anorgasmia (n = 110), 50% received no diagnosis, 19% were diagnosed with personality disorder, 9% with affective disorder, 7% with anxiety disorder, 13% with adjustment disorder, and 2% with psychotic disorder. Among the women with dyspareunia or vaginismus (n = 16), 13% received no diagnosis, 75% were diagnosed with personality disorder, and 13% with affective disorder. No anxiety disorders, adjustment disorders, somatoform disorders, or psychotic disorders were diagnosed in this subgroup. The study did not comprise individuals with hypoactive sexual desire disorder. The most prominent difference between diagnostic groups was the proportion of personality disorders, which was much higher in women with sexual pain disorder. The types of personality disorder were not specified.
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In a later study of this research group (Fagan et al., 1988), DSM-III Axis I and II diagnoses were assessed for 223 men and 65 women with SD. Among the men, 18 (8%) were found to have substance abuse, 11 (5%) affective disorder, 6 (3%) anxiety disorder, 7 (3%) adjustment disorder, 6 (3%) another Axis I disorder, and 25 (11%) personality disorder. Among the women, 3 (5%) were found to have substance abuse, 6 (9%) affective disorder, 0 (0%) anxiety disorder, 2 (3%) adjustment disorder, 3 (5%) another Axis I disorder, and 10 (15%) personality disorder. Diagnoses were arrived at after mental status examination, completion of self-report questionnaires, and discussion of the findings at a case conference with a senior staff member. All in all, 30.5% of the men and 30.8% of the women were assigned a psychiatric disorder on Axis I, Axis II, or both axes. Concurrent psychiatric disorder was found in 34% and previous psychiatric disorder in 35% of males presenting at a sexual dysfunction clinic in Great Britain (Catalan et al., 1990). Current and lifetime psychiatric disorder were diagnosed in 50% and 51%, respectively, of the women presenting in this study. Current psychiatric disorders were predominantly depression and anxiety disorders, or mixed depression and anxiety disorders. Previous disorders were predominantly affective disorders. Schover et al. (1992) observed major depression or adjustment disorder with depressed mood, according to DSM-III-R, in 36%, and somatization disorder in 42% in a sample of 45 women with vulvar vestibulitis, a form of dyspareunia. This contrasted with the observed absence of psychopathology in their sample measured with the Brief Symptom Inventory (Derogatis and Melisaratos, 1983). Depression was diagnosed more frequently in men with erectile disorder compared with age-matched controls, assessed with the Primary Care Evaluation of Mental Disorder and the Beck Depression Inventory (Shabsigh et al., 1998). When compared with sexually functional controls, both male and female patients with hypoactive sexual desire disorder (HSDD) were found to have a higher lifetime prevalence of depressive disorder (Schreiner-Engel and Schiavi, 1986). No current diagnoses of affective, anxiety, or psychotic disorders were found. The proportion of individuals with HSDD in whom a history of affective disorder was found (men: 73%; women: 71%) was more than twice as large as in normals (men: 32%; women: 27%). Moreover, the onset of the affective disorder usually preceded or coincided with the onset of the desire disorder. Schreiner-Engel and Schiavi (1986) employed the SADS–Lifetime Version to diagnose psychiatric disorder. Hawton and associates (1986, 1991, 1992) studied psychiatric disorder in couples with SD with regard to its predictive value for the outcome of sex therapy. Their findings diverged for the different types of SD. A history of psychiatric illness and psychiatric treatment predicted worse long-term outcome (mean follow-up period: >3 years) in a group of couples with various sexual dysfunctions (Hawton et al., 1986). In another study, psychiatric disorder in the female partner predicted dropout and worse outcome of sex therapy in couples in which the male had erectile disorder (Hawton et al., 1992). In still another study, no influence of psychiatric history on outcome was found for couples with sexual desire problems (Hawton et al., 1991).
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Sexual Dysfunction as a Concomitant Disorder of Psychiatric Condition Kockott and Pfeiffer (1996) compared patients with nonacute schizophrenia (n = 100) and patients with affective psychoses (n = 58), all still being treated on an outpatient basis, with dermatology outpatients (n = 30), and found significantly different rates of sexual dysfunction. Forty-nine percent (49%) of the schizophrenic patients and 36% of the patients with affective psychoses were diagnosed with a concomitant sexual dysfunction, whereas only 13% of the control patients, who also were suffering from chronic illness and being treated for it, were found to be sexually dysfunctional. The most frequently diagnosed dysfunction was HSDD. The proportion of diagnoses of SD was greatest in patients with schizophrenic psychoses who were treated with neuroleptic medication. In more than one-third of the patients with an SD, multiple factors were believed to cause the dysfunction, specifically the psychiatric disorder and the psychoactive medication. In another study, HSDD was also found to be more prevalent in male schizophrenic patients regardless of whether they were treated with neuroleptic medication (Aizenberg et al., 1995) than in normal controls. Problems with sexual arousal were largely confined to treated patients, suggesting an adverse side effect of the medication. In a large-scale epidemiological study (Araujo et al., 1998) of male aging in the United States, a significant association of depression and erectile dysfunction was found in men between 40 and 70 years of age. The estimated odds ratio for erectile dysfunction was 1.82 in the presence of depressive symptoms as compared with the absence of depressive symptoms, with a 95% confidence interval of 1.21– 2.73. Erectile problems were assessed by means of a 9-item self-report questionnaire. Depression was assessed with a validated self-report questionnaire (CES-D) measuring the current level of depressive symptomatology. Increased depression scores do not necessarily coincide with the diagnosis of clinical depression. The association was cleared of potentially confounding influences of demographic and anthropometric variables, health status, medication use, hormones, and lifestyle factors. In a community survey in the United Kingdom (Osborne et al., 1988) 436 women aged 35–59 years were randomly recruited from two general medical practices. Psychiatric disorders were assessed using the present state examination (Wing et al., 1974). Sexual problems were assessed with a semistructured interview, producing a number of operationally defined SDs as well as self-defined sexual problems. Thirty-three percent (33%) of the women had at least one operationally defined SD, whereas 10% regarded themselves as having a sexual problem. Among the women having any of the operationally defined SDs, 13% were found to be a psychiatric “case” according to PSE criteria, versus 8% of the women in the rest of the sample. This difference was not significant. When looking at separate SDs, impaired sexual interest, infrequency of orgasm, and dyspareunia but not vaginal dryness, were significantly associated with being a psychiatric “case.” Of the women with self-defined sexual problems, 31% were found to be a psychiatric “case” versus 7% of the rest of the women. This was a significant difference. The
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nature of the psychiatric disorder was not specified in this study. Discriminant function analysis, performed because several background factors were found to be associated with SD, revealed that psychiatric disorder did not contribute to the discrimination of women with and without sexual dysfunction. The Present Study The present study was carried out to augment the database for the association of SD and psychiatric disorder. It specifically sought to establish valid diagnoses of psychiatric comorbidity in heterosexual couples in which one or both partners had SD. Moreover, it compared the psychiatric comorbidity rates in these couples with the psychiatric morbidity rates in the general population, assessed with the same instrument, to enable a valid evaluation of the observed comorbidity rates. In most of the previously discussed studies, the diagnosis of psychiatric disorder was established with the help of a clinical interview method without information regarding the normal population rates of psychiatric diagnoses according to these instruments. Without such normative data, statements about the association of psychiatric condition and sexual dysfunction lack external validity. In some reports it was not clear which diagnostic criteria were applied to arrive at a diagnosis or what the interrater reliability was. Other investigators used standardized and validated diagnostic procedures such as the SADS-L or the CES-D. In the present study, the Composite International Diagnostic Interview (CIDI), version 1.1 [World Health Organization (WHO), 1992] was used. The instrument (Robins et al., 1988) is based on the Diagnostic Interview Schedule and the present state examination. Although its use requires extensive training of the interviewers to maximize interrater reliability, it does not presuppose formal clinical qualifications. It generates diagnoses of mental illness according to DSM-III-R criteria. For the purpose of comparison of the prevalence of psychiatric disorder with prevalence rates in the general population, the Netherlands Mental Health Survey and Incidence Study (NEMESIS), a Dutch survey study that also used CIDI (Bijl et al., 1998a,b), was used. In this survey, affective disorders, anxiety disorders, eating disorders, schizophrenia and other not-affective psychotic disorders, substance abuse, and dependence disorders were diagnosed in a representative population sample of 7076 adult men and women. METHODS Participants and Procedure Participants were applicants for participation in a controlled study of cognitive–behavioral bibliotherapy for sexual dysfunctions in heterosexual couples (van Lankveld, 1998), the results of which are to be published elsewhere. The
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present study included only the data of the sexually dysfunctional members of the participating couples. Three hundred eighty-two (382) participants were included; 181 men and 201 women. Couples were recruited from two different sources. Forty percent (40%) were patient couples from the outpatient clinic for Psychosomatic Gynecology and Sexology of the Leiden University Medical Center in the Netherlands who were referred by general practitioners (45%), gynecologists and urologists (40%), and mental health professionals (15%). When couples were placed on the waiting list for professional treatment after comprehensive medical and psychological assessment, they received an invitation to join the bibliotherapy study and a leaflet introducing the research procedure. Of the couples invited during the recruitment period, 48% did not answer the invitation to participate. The reasons for not responding to this invitation could not be systematically assessed for ethical considerations. Fifty-two percent (52%) of the invited couples were willing to participate and contacted the research assistant to schedule appointments. Sixty percent (60%) of the couples participating in the present study were recruited by advertisements in local and national Dutch newspapers. Couples responded to these advertisements by calling the aforementioned outpatient clinic from which they received information about the study by telephone and in writing. Participant groups from both recruitment sources were collapsed after multivariate comparisons had revealed that the variability of their demographic characteristics and baseline scores on the outcome variables used in the bibliotherapy study was associated with the different types of SD, and not with recruitment route (van Lankveld et al., 1999). Inclusion criteria for all participants in the bibliotherapy study were: heterosexual couples with both partners over 16 years of age seeking help for an SD of at least one partner. Dysfunctions were required to meet the DSM-IV criteria, including the absence of major organic causes for sexual dysfunction and of medication effects. Exclusion criteria for participation in the bibliotherapy study were current psychotic disorder; major depression or abuse of alcohol or psychoactive drugs by either partner; imminent divorce; and concurrent psychological or psychiatric treatment for sexual, psychological, or marital problems, including psychopharmacologic treatment. The presence of major alcohol and substance abuse was screened by telephone interviewing in case of recruitment through advertisement and by clinical interviewing in sexology outpatients. Both screening procedures took place before participants were admitted to the assessment session for the bibliotherapy study. A female research assistant (YG), a trained psychologist and experienced in sexology, collected all data. The assessment session lasted from 90 to 180 min. Each partner was evaluated separately while the other partner completed self-report questionnaires in an adjacent room. Informed consent forms were completed after full explanation of the procedure. The research assistant conducted a structured interview to collect demographic, marital, sexual history, and treatment history data.
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Separately for each partner, self-presented SDs were classified according to DSM-IV (APA, 1994). When more than one sexual problem was presented, participants were asked to prioritize them. The highest priority dysfunction was used for further classification. No distinction was made between lifelong and acquired dysfunctions, or between global and situational dysfunctions. Next, the presence of psychiatric disorders was investigated using CIDI. The variation of duration of the interview was largely due to the time needed to complete this part of the assessment. After completion of the assessment procedure, couples who met all inclusion and exclusion criteria were included in the bibliotherapy study. Excluded couples who had applied via newspaper ads were given guidance to receive adequate help. Excluded couples who were on the waiting list for sex therapy further awaited the beginning of their therapist-administered treatment. Data reported in this paper reflect the results of the preinclusion assessment.
MATERIALS Composite International Diagnostic Interview, Version 1.1 (CIDI) CIDI (WHO, 1992) is a structured diagnostic interview used to evaluate the criteria for mental disorders, according to DSM-III-R (APA, 1987), Axis I. It enables data collection with simultaneous computer scoring. Interrater and test–retest reliability were found satisfactory in field trials (Andrews et al., 1995; Cottler et al., 1991), although one study found the reliability for phobias, social phobia, and agoraphobia to be less satisfactory (Wittchen et al., 1996). The validity was found to be good for most diagnoses (Farmer et al., 1987, 1991), except for acute psychotic states (Helzer et al., 1985). At the moment of data collection, no such instrument was available that used DSM-IV criteria. The sections concerning abuse and dependence on alcohol, tobacco, and psychoactive drugs and concerning organically based mental disorders were omitted from analysis. A significant influence of tobacco smoking has been found on vasculogenic erectile dysfunction (Condra et al., 1986; Hirshkowitz et al., 1992). Abuse of alcohol and psychoactive drugs and organic mental disorder have also been found to be associated with sexual dysfunction (Abel, 1985). However, we did not expect to be able to assess the prevalence of these disorders validly in our samples. Many couples with substance-related disorders and organic mental disorder would have been excluded during the initial screening procedure by telephone in the volunteer subsample, clinical interviewing, and medical examination in the patient subsample before admission to the baseline assessment of the bibliotherapy study, thus confounding the results. The CIDI procedure allows the diagnosis of multiple mental disorders. Subjects can be diagnosed with a current diagnosis (disorder present within previous 2 weeks)
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or a lifetime diagnosis (disorder having been present in any period of life until the day of the interview). The Golombok Rust Inventory of Sexual Satisfaction (GRISS) The GRISS (Rust and Golombok, 1986) is a self-report questionnaire with separate forms for men and women, each consisting of 28 items. It measures the most common psychosexual complaints and has been chosen to assess the degree of sexual dysfunction. Six main dimensions of sexual functioning were selected: three male subscales measuring sexual infrequency (scoring range: 2–10), erectile dysfunction (scoring range: 4–20), premature ejaculation (scoring range: 4–20); and three female subscales measuring sexual infrequency (scoring range: 2–10), anorgasmia (scoring range: 4–20), and vaginismus (scoring range: 4–20). The vaginismus subscale also measures vaginal discomfort, as experienced by women with complaints of dyspareunia. The reliability of the GRISS and its predictive validity for the identification of sexual dysfunction within a sexological population were found to be satisfactory in English (Rust and Golombok, 1986) and Dutch samples (ter Kuile et al., 1999; van Lankveld and ter Kuile, 1999). The subscales were found to be independent of social desirability (van Lankveld and ter Kuile, 1999). Statistical Analysis First, the GRISS data were used to examine the robustness of the DSM-IV diagnoses of sexual dysfunctions that identify sample subgroups. Differences were tested by means of MANOVA with subsequent Scheff´e multiple post-hoc comparisons. Pillai’s criterion of significance of the multivariate model was used to maximize robustness, in view of the unequal sample sizes (Olson, 1979). Second, prevalence rates of psychiatric disorders were compared with rates in the general population using chi-square tests. A Bonferroni correction for multiple tests was applied to the general significance level when the prevalence rates of larger diagnostic clusters were tested (psychotic disorders, affective disorders, anxiety disorders, and eating disorders) in the complete group of sexually dysfunctional men and women. Several other comparisons of separate types of SD with the general population were performed for exploratory purposes without adjustment of the general significance level. RESULTS CIDI data were obtained from 181 men. One hundred eleven (111) men were diagnosed with HSDD, 39 men with erectile dysfunction (ED), and 31 men with premature ejaculation (PE). CIDI data were collected from 201 women.
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One hundred twenty (120) women were diagnosed with HSDD, 18 women with orgasmic disorder (OD), 31 women with vaginismus (V), and 32 women with dyspareunia (D). Demographic characteristics of subgroups are shown in Table I. Male participants had an average age of 41.2 (±11.1) years, men with ED having the highest age (x¯ = 48.0 ± 11.4 years). Due to study inclusion criteria, all participants were living in a stable heterosexual relationship with an average length of 14.9 (±11.2) years. Men with ED, again, had the longest relationships (x¯ = 17.4 ± 14.2 years). Ninety-one percent (91%) of the male participants were living together with their female partner; 23.8% had never been married, 70.7% were married, 1 participant was a widower with a new partner, 5.0% were divorced and had a new partner; 54.7% had children; 48.1% had no religious affiliation, 20.4% were Protestant, 23.7% were Roman Catholic, 7.7% had other religious affiliations; 83.4% had a paid job, 3.3% of the male participants were students, whereas 13.2% had no or other occupations; 61.3% had previous experience with occasional sexual contact before starting their present relationship; 53.6% had a previous sexual relationship of longer duration before their present relationship; 30.4% had previously received psychiatric or psychological help for other than the sexual problem. Female participants had an average age of 34.8 (±10.9) years. Due to study inclusion criteria, all of these women were living in a stable heterosexual relationship with an average length of 13.2 (±10.7) years. Ninety-one percent (91%) of the female participants were living together with their partner; 36.3% had never been married, 62.2% were married, 1.5% were divorced and had a new partner; 44.8% had children; 44.8% had no religious affiliation, 20.9% were Protestant, 28.4% were Roman Catholic, 6.0% had other religious affiliations; 58.7% had a paid job, 9.5% of the female participants were students, whereas 31.8% were housewives or had no or other occupations; 61.7% had previous experience with occasional sexual contact before starting their present relationship; 52.2% had a previous sexual relationship of longer duration before their present relationship; 45.8% had previously received psychiatric or psychological help for other than the sexual problem. Sexual functioning and sexual satisfaction of the diagnostic subgroups, measured with the use of GRISS subscales were compared for the purpose of diagnostic validation, with MANOVA and subsequent univariate comparisons. The combined GRISS variables were significantly associated with male sexual dysfunction type (F(9, 354) = 30.28, p < .001). All separate male subscales contributed significantly to the differentiation of diagnostic subgroups (male infrequency F(2) = 8.45, p < .001; impotence F(2) = 72.59, p < .001; premature ejaculation F(2) = 17.41, p < .001). The combined female GRISS variables were significantly associated with female type of SD (F(9, 594) = 25.64, p < .001). All separate female subscales contributed significantly to the differentiation of diagnostic subgroups (female infrequency F(3) = 9.17, p < .001; anorgasmia F(3) = 6.53, p < .001; vaginismus F(3) = 107.19, p < .001). The GRISS data thus
Age (years) Length of relationship (years) Duration of problem (years) Education high (%) Have children together (%)
48.0/11.4 17.4/14.2 5.8/6.5 56.4 48.7
40.4/11.3 13.3/11.0 9.6/9.1 61.3 51.6
PE n = 31 M/SD 41.2/11.1 14.9/11.2 8.1/8.1 60.2 54.7
Total n = 181 M/SD 36.4/10.4 15.1/10.4 8.5 /7.68 47.9 64.2
HSDD n = 120 M/SD 36.4/11.1 12.6/9.8 7.2/8.4 44.4 38.9
OD n = 18 M/SD
29.6/9.1 8.5/8.8 7.8/5.7 54.8 9.7
V n = 31 M/SD
32.7/12.6 11.0/12.7 5.0/5.8 56.3 9.4
D n = 32 M/SD
Female sexual dysfunction type
34.8/10.9 13.2/10.7 7.7/7.2 50.0 44.8
Total n = 201 M/SD
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HSDD = hypoactive sexual desire disorder; ED = erectile disorder; PE = premature ejaculation; OD = orgasmic disorder; V = vaginismus; D = dyspareunia.
39.1/10.0 14.5/10.0 8.5/8.2 61.3 57.7
Characteristic
ED n = 39 M/SD
Male sexual dysfunction type
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validated the assigned DSM-IV diagnostic labels of SD by differentiating satisfactorily between diagnostic subgroups, except between women with vaginismus and dyspareunia. Women in both of these groups had increased scores on the GRISS vaginismus subscale, compared with other groups. This is easily explained by the fact that this subscale also contains items on vaginal discomfort, pertinent to female dyspareunia. Table II presents the CIDI diagnoses in men. Differences in psychiatric comorbidity between our entire male sample and the general Dutch population as documented in the NEMESIS study (Bijl et al., 1998a) were tested using the diagnostic clusters of affective, anxiety, and eating disorders. The null prevalence of psychotic disorders in the male sample prohibited statistical testing. The general significance level for men was set at α = 0.05/6 = 0.008 after Bonferroni correction. A higher prevalence of current anxiety disorder in sexually dysfunctional male participants was found (χ 2 (df = 1) = 7.753; p = .005). The prevalence of current and lifetime eating disorders did not differ from the general population. No psychotic disorders were found. Lifetime diagnoses of affective disorders (χ 2 (df = 1) = 9.728; p = .002) were more prevalent in sexually dysfunctional men. Lifetime anxiety disorders were also more prevalent but this difference with the general population only approached statistical significance (χ 2 (df = 1) = 5.642; p = .018). Subsequent comparisons of the male sexual dysfunction types with regard to these clusters of psychiatric diagnoses revealed significant differences (α = .05). Men with HSDD were found to have, compared with the normal male Dutch population, higher prevalence rates of current anxiety disorders (12.6%; χ 2 (df = 1) = 6.824; p = .009), current eating disorders (0.9%; χ 2 (df = 1) = 7.127; p = .008), and of lifetime affective disorders (21.6%; χ 2 (df = 1) = 6.078; p = .014). Men with ED had higher prevalence rates of lifetime affective disorders (25.6%; χ 2 (df = 1) = 6.078; p = .014). Men with PE showed increased prevalence rates of current social phobia (9.7%; χ 2 (df = 1) = 5.388; p = .020), current simple phobias (9.7%; χ 2 (df = 1) = 4.465; p = .035), as well as lifetime anxiety disorders (29.0%; χ 2 (df = 1) = 6.046; p = .014), most frequently social phobia (19.4%; χ 2 (df = 1) = 10.108; p = .001). Table III presents the CIDI diagnoses in women. The null prevalence of current psychotic disorders in the female sample prohibited statistical testing. The general significance level for women was set at α = 0.05/7 = 0.007 after Bonferroni correction. A significant higher prevalence of current anxiety disorder was found (χ 2 (df = 1) = 10.057; p = .002). The prevalence of current affective disorders in sexually dysfunctional women, although higher, was not found to be significantly different from the general Dutch female population. The prevalence of eating disorders did also not differ from the general population. No current psychotic disorders were found. The number of lifetime diagnoses of psychotic disorder was small, and limited to female participants with HSDD. The prevalence of lifetime affective disorders exceeded the general female population’s prevalence
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Table II. Psychiatric Comorbidity in Sexually Dysfunctional Males: Current (Within Previous 2 Weeks) and Lifetime Diagnoses (Earlier in Life until Day of Interview) Male sexual dysfunction type HSDD ED PE Total General b χ2 p (n = 111) (n = 39) (n = 31) (n = 181) populationa % % % % % (df = 1) obs. Current diagnosesc Psychotic disorder Affective disorder Major depression Dysthymia Bipolar disorder Anxiety disorder Panic disorder Agoraphobia without panic Generalized anxiety disorder Social phobia Simple phobia Obsessive–compulsive disorder Eating disorder Anorexia Bulimia Lifetime diagnoses Psychotic disorder Affective disorder Major depression Dysthymia Bipolar disorder Anxiety disorder Panic disorder Agoraphobia without panic Generalized anxiety disorder Social phobia Simple phobia Obsessive–compulsive disorder Eating disorder Anorexia Bulimia
— 5.4 3.6 2.7 1.8 12.6e 1.8 0.9
— 7.7 5.1 2.6 2.6 7.7 — —
— — — — — 12.9 — —
— 5.0 3.3 2.2 1.7 11.6 1.1 0.6
0.1 2.8 1.9 1.0 0.4 6.5 0.8 0.6
3.6
2.6
—
2.8
0.6
3.6 4.5 1.8
2.6 2.6 —
9.7d 9.7d —
4.4 5.0 1.1
2.8 3.1 0.3
0.9e — 0.9
— — —
— — —
0.6 — 0.6
0.1 0.0 0.1
— 21.6d 18.0 6.3 4.5 17.9 5.4 1.8
— 25.6d 23.1 10.3 5.1 17.9 2.6 —
— 16.1 16.1 6.5 — 29.0d 3.2 3.2
— 21.5 18.8 7.2 3.9 19.9 4.5 1.7
0.4 13.6 10.9 3.8 1.5 13.8 1.9 1.9
4.5
7.7
—
4.4
1.6
6.3 5.4 1.8
12.8 2.6 —
19.4 f 12.9 —
9.9 6.1 1.1
5.9 6.6 0.9
0.9 — 0.9
— — —
— — —
0.6 — 0.6
0.2 0.0 0.2
3.139
.076
7.753
.005
3.710
.054
9.728
.002
5.642
.018
1.127
.288
Note: HSDD = hypoactive sexual desire disorder; ED = erectile disorder; PE = premature ejaculation.
a NEMESIS study (Bijl, Ravelli, and van Zessen, 1998). b χ 2 test statistics of the difference in observed prevalence
rates between the general Dutch population and the combined sexual dysfunction types. c Current diagnosis in the NEMESIS study defined as: disorder present within previous month. dp 2 obs. (χ ) ≤ .05. ep 2 obs. (χ ) ≤ .01. fp 2 obs. (χ ) ≤ .001.
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Table III. Psychiatric Comorbidity in Sexually Dysfunctional Females: Current (Within Previous 2 Weeks) and Lifetime Diagnoses (Earlier in Life until Day of Interview) Female sexual dysfunction type HSDD OD V D Total General b (n = 120) (n = 18) (n = 31) (n = 32) (n = 201) populationa χ 2 p % % % % % % (df = 1) obs. Current diagnosesc Psychotic disorder Affective disorder Major depression Dysthymia Bipolar disorder Anxiety disorder Panic disorder Agoraphobia without panic Generalized anxiety disorder Social phobia Simple phobia Obsessive–compulsive disorder Eating disorder Anorexia Bulimia Lifetime diagnoses Psychotic disorder Affective disorder Major depression Dysthymia Bipolar disorder Anxiety disorder Panic disorder Agoraphobia without panic Generalized anxiety disorder Social phobia Simple phobia Obsessive–compulsive disorder Eating disorder Anorexia Bulimia
— 8.3 3.3 4.2 1.7 18.3 1.7 0.8
— — — — — 11.1 — —
— 6.5 6.5 3.2 — 19.4 — 3.2
— 12.5d 15.6 f 3.1 — 34.4 f 3.1 3.1
— 8.0 5.5 3.5 1.0 20.4 1.5 1.5
0.2 5.0 3.4 2.1 0.8 12.9 2.2 1.4
—
—
—
6.3e
1.0
1.0
d
3.708 .054
10.057 .002
5.8 10.8 —
5.6 5.6 —
9.7 12.9 3.2
12.5 21.9e 9.4 f
7.5 12.4 2.0
4.7 8.0 0.2
0.8 — 0.8
— — —
— — —
— — —
0.5 — 0.5
0.4 0.0 0.4
0.048 .827
0.8 40.8 f 32.5 f 17.5 f 3.3 37.5e 6.6 8.3
— 27.8 22.2 11.1 5.6 27.8 5.6 11.1
— 32.3 32.3 6.5 — 29.0 3.2 12.9d
— 43.8d 43.8 f 15.6 — 50.0 f 12.6 3.1
0.5 38.8 33.3 14.9 2.5 37.3 7.0 8.5
0.3 24.5 20.1 8.9 2.1 25.0 5.7 4.9
0.262 .609 20.719 .000
10.0 f
—
3.2
9.4d
8.0
2.9
11.7 15.8 —
11.1 5.6 —
9.7 16.1 6.5 f
18.8 34.4 f 9.4 f
12.4 17.9 2.5
9.7 13.6 0.8
5.6 — 5.6
— — —
3.1 — 3.1
3.0 — 3.0
1.3 0.2 1.1
3.3d — 3.3
16.254 .000
4.448 .035
Note: HSDD = hypoactive sexual desire disorder; OD = orgasmic disorder; V = vaginismus; D = dyspareunia. a NEMESIS study (Bijl, Ravelli, and van Zessen, 1998). b χ 2 test statistics of the difference in observed prevalence rates between the general Dutch population and the combined sexual dysfunction types. c Current diagnosis in the NEMESIS study defined as: disorder present within previous month. dp 2 obs. (χ ) ≤ .05. ep 2 obs. (χ ) ≤ .01. fp 2 obs. (χ ) ≤ .001.
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(χ 2 (df = 1) = 20.719; p < .001), as did the prevalence of lifetime anxiety disorders (χ 2 (df = 1) = 16.254; p < .001). Lifetime eating disorders (bulimia) were diagnosed in female participants with different SDs, but not in women with vaginismus. Although higher, the difference in lifetime prevalence with the general female population did not reach significance. Separate tests of different types of female SD with regard to the aforementioned clusters of psychiatric diagnoses revealed several differences (α = .05). In women with HSDD, increased prevalence rates of the clusters of lifetime affective disorders (40.8%; χ 2 (df = 1) = 17.307; p < .001), lifetime anxiety disorders (37.5%; χ 2 (df = 1) = 10.000; p < .002), and lifetime eating disorders (3.3%; χ 2 (df = 1) = 3.867; p = .049) were found compared to the normal population. Specifically, higher rates of lifetime depressive disorder (32.5%; χ 2 (df = 1) = 11.489; p = .001), lifetime dysthymia (17.5%; χ 2 (df = 1) = 10.946; p = .001), and lifetime generalized anxiety (10.0%; χ 2 (df = 1) = 21.482; p < .001) disorder were diagnosed. In women with dyspareunia, increased prevalence rates of current affective disorders (12.5%; χ 2 (df = 1) = 3.789; p = .052), current anxiety disorders (34.4%; χ 2 (df = 1) = 13.134; p < .001), lifetime affective disorders (43.8%; χ 2 (df = 1) = 6.411; p = .011), and lifetime anxiety disorders (50.0%; χ 2 (df = 1) = 10.667; p = .001) were found. Specifically, higher rates of current (15.6%; χ 2 (df = 1) = 14.561; p < .001) and lifetime (43.8%; χ 2 (df = 1) = 11.145; p = .001) depressive disorder, current (6.3%; χ 2 (df = 1) = 8.909; p = .003) and lifetime generalized anxiety disorder (9.4%; χ 2 (df = 1) = 4.764; p = .029), current (12.5%; χ 2 (df = 1) = 4.347; p = .037) social phobia, current (21.9%; χ 2 (df = 1) = 8.370; p = .004) and lifetime simple phobia (34.4%; χ 2 (df = 1) = 11.754; p = .001), and current (9.4%; χ 2 (df = 1) = 134.959; p < .001) and lifetime obsessive–compulsive disorder (9.4%; χ 2 (df = 1) = 29.649; p < .001) were diagnosed. In women with vaginismus increased rates of lifetime agoraphobia (12.9%; χ 2 (df = 1) = 4.261; p = .039) and lifetime obsessive–compulsive disorder (6.5%; χ 2 (df = 1) = 12.477; p < .001) were found. In women with orgasmic disorder, no relevant psychiatric comorbidity was found. DISCUSSION Our study revealed significant psychiatric comorbidity in men and women with SD. Moreover, the rates of some psychiatric disorders were higher than those found in the general Dutch population (Bijl et al., 1998a) when assessed with the same instrument. The 5% comorbidity rate of current affective disorder in men with various sexual dysfunctions replicated the earlier findings of Fagan et al. (1988), but a higher (11.6%) rate of current anxiety disorder was found than in the Fagan et al. study. The 8% comorbidity rate of current affective disorder in women with various sexual dysfunctions in our study also replicated the findings in that study. However, the observed high rate (20.4%) of current anxiety disorder
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contrasts strongly with the null prevalence of anxiety disorder in women in the Fagan et al. study. The higher prevalence of anxiety disorders may be explained by differences in sensitivity for the anxiety cluster of psychiatric problems between the CIDI methodology and the assessment procedure of Fagan et al., which relied more heavily on clinical judgment and the use of paper-and-pencil instruments. The design of our study enabled comparison of individuals with different SDs with regard to earlier findings but interpretation should be done with caution, if only in view of the inflated type I error due to the large number of statistical tests we performed.
Men with Erectile Dysfunction No current or lifetime psychotic disorders were found in men with ED in the present study. Derogatis et al. (1981) reported that comorbid affective disorders were diagnosed in 8% of men with ED and comorbid anxiety disorders in 9%. The present study also revealed increased current affective (8%) and anxiety (8%) disorder rates in men with erectile disorder that were, however, not significantly higher than those found in the general male Dutch population (Bijl et al., 1998a). The rates of current anxiety disorder in men with ED were found to be lower than in men with other types of SD and not significantly higher than in the general population. This provides circumstantial evidence for the rather limited importance of anxiety in the current etiological conception of psychogenic erectile disorder (Barlow, 1986; Cranston-Cuebas and Barlow, 1990). Although higher than in the general male population, the observed 5% prevalence rate of current affective disorder in men with ED also does not corroborate the suggested importance of depressive affect in the etiology of this sexual disorder (Mitchell et al., 1998). We must bear in mind, however, that increased affect states can be present in individuals with subclinical levels of psychopathology. Furthermore, the cross-sectional nature of the present study prohibits causal interpretations.
Men with Premature Ejaculation The comorbid prevalence of current anxiety disorders (13%) in men with PE in this study was higher than that found by Derogatis et al. (7%; 1981). In particular, current diagnoses of both social phobia and simple phobia were established in almost 10% of the men with PE. The lifetime prevalence of anxiety diagnoses is even more pronounced, amounting to 29% of men with PE meeting DSM criteria for any anxiety disorder, most prominently social phobia (19.4%). This high rate of comorbid anxiety states suggests a considerable role of anxiety in the etiology of PE. If such high percentages of males with PE meet DSM-III-R criteria for a current anxiety disorder, many more can be expected to have subclinical anxiety
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symptoms. Our data contrast earlier findings by Strassberg and colleagues (1990), who reported no differences in state anxiety of males with PE and normal controls during sexual intercourse. Strassberg et al. (1990) measured anxiety using an undefined self-report questionnaire. This instrument may not have tapped the same anxiety features as those inherent in social phobia, including excessive self-focus, enhanced perception of sensations of autonomic arousal, negative self-evaluations, and fear of being evaluated negatively by others (B¨ogels, 1999). Comorbid current affective disorder was absent in men in this diagnostic category in our study, versus 8% in Derogatis et al. (1981).
Men with Hypoactive Sexual Desire Disorder Consistent with earlier findings (Schreiner-Engel and Schiavi, 1986), an increased prevalence of lifetime affective disorders was found in men with HSDD (21.6%). The prevalence of concurrent anxiety disorders (12.6%) was also increased. As in Schreiner-Engel and Schiavi’s (1986) study, no psychotic disorders were diagnosed. The high rate of current anxiety disorders, relative to the comorbidity of current affective disorders, may have implications for the etiological conception of low sexual desire. The temporal sequence of depression and loss of sexual interest, with the affective disorder usually predating the sexual problem, suggests a causal role of depression. Because anxiety disorders were presently found only to accompany HSDD, without evidence of increased lifetime prevalence, anxiety states may be a mere epiphenomenon, not reported in previous studies.
Women with Anorgasmia As in Derogatis et al. (1981), comorbid current anxiety disorders were found in women with anorgasmia, although the prevalence rate was equal to the general female population. Other psychiatric disorders, if any were found, never were higher than in the general female Dutch population, contrasting the findings of Derogatis et al. (1981), with respect to increased current affective disorders women in this diagnostic group.
Women with Vaginismus and Dyspareunia Derogatis et al. (1981) combined the psychiatric diagnoses of women with V and D, possibly because of the small number of women with these diagnoses in their study. Our results on the prevalence of comorbid current affective disorders in women with D (13%) replicated their finding. In the V category, however, current
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affective disorders were less prevalent (7%) and not higher than in the general female population. The prevalence of comorbid affective disorder in women with D, although higher than that found in the general female population, was lower than that found by Schover et al. (1992). This discrepancy may be explained by their wider definition of depression, which also comprised adjustment disorder with depressed mood. Contrasting with the findings of Derogatis et al. (1981), current anxiety disorders were found in the D group, with comorbidity proportions as high as 34.4%. This high comorbidity rate, which may be accompanied by an even higher rate of subclinical social anxiety symptoms in other patients with D, suggests a very important role of interpersonal anxiety in the etiology of sexual pain disorders (Meana and Binik, 1994; Spano and Lamont, 1975). Women with Hypoactive Sexual Desire Disorder Consistent with Schreiner-Engel and Schiavi (1986), women with HSDD in our study had an increased prevalence of lifetime affective disorders (41%). The prevalence of lifetime comorbid anxiety disorder (38%) was also increased in women with HSDD. Most prominent was the finding of increased lifetime prevalence of generalized anxiety disorder (10.0%). The higher lifetime prevalence of anxiety disorders, with prevalence rates approaching those of affective disorder, may shed new light on the psychopathology predating and perhaps causing loss of sexual desire. HSDD has also been associated with marital discord (Hartman and Daly, 1983; Trudel et al., 1993) and with acute and chronic somatic illness (Schover and Jensen, 1988). The ratios of lifetime affective disorder found in men (21.6/13.6 = 1.59) and women (40.8/24.5 = 1.67) with HSDD, compared with persons from the general population in the present study, was somewhat lower than the ratios found by Schreiner-Engel and Schiavi (1986) (2.28 for men and 2.63 for women). The higher absolute rates of lifetime affective disorder in their study may have been due to differences in sensitivity and specificity of SADS-L and CIDI, respectively.
CONCLUSIONS The relatively high proportion of men and women in this study who had HSDD compared to other dysfunction types may have had a considerable impact on the psychiatric comorbidity when diagnostic groups were collapsed. HSDD, however, is estimated to be the most prevalent SD among stable couples in the general population as well. Only individuals with SD who lived in a stable partner relationship were included in the present study. The exclusion from the bibliotherapy study of couples with concurrent psychological or psychiatric treatment for
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sexual, psychological, or marital problems, including psychopharmacologic treatment, may have resulted in selection bias towards a healthier sample. The same argument applies to the exclusion of couples with self-reported major marital conflict, alcohol abuse, and dependence. The recruitment strategy for the present study may have resulted in selection bias in other respects. The application for participation in a bibliotherapy effect study may have attracted healthier couples, who are more confident in their self-healing ability than couples who declined the invitation to participate and preferred therapist-administered treatment. This was, to some extent, contradicted by the finding that couples who were recruited in the previously mentioned way from a regular mental health service (the sexology department of a university hospital) were indistinguishable from couples without any previous treatment experience who responded to newspaper ads for the bibliotherapy study (van Lankveld et al., 1999). It can, however, be speculated that psychiatric comorbidity would therefore be even more frequent in a fully unselected sexology population. These design characteristics impose limitations on the interpretation of the present results. The presence of psychiatric disorder in individuals with SD does not necessarily preclude dysfunction treatment. Moreover, a psychiatric history has not been found to be a consistently reliable predictor of negative outcome of sex therapy (Hawton et al., 1986, 1991, 1992; Sarwer and Durlak, 1997). Nevertheless, the pervasiveness of the comorbid psychiatric disorder must be evaluated carefully for several reasons. Negligence of psychiatric disorder can bring about serious health risks. A negative outcome of treatment of the SD due to the presence of comorbid psychiatric problems may deter patients from seeking further adequate help. The increased comorbidity of psychiatric disorders in men and women with SD warrants adding psychiatric screening, using psychometrically sound instruments, to the standard intake assessment procedure. ACKNOWLEDGMENT Research supported by Research Grant 4142 from the Netherlands National Foundation of Mental Health. REFERENCES Abel, E. L. (1985). Psychoactive Drugs and Sex. Plenum Press, New York/London. Aizenberg, D., Zemishlany, Z., Dorfman-Etrog, P., and Weizman, A. (1995). Sexual dysfunction in male schizophrenic patients. J. Clin. Psych. 56: 137–141. American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Washington, DC. American Psychiatric Association. (1987). Diagnostic and Statistical Manual of Mental Disorders, Third Edition—Revised (DSM-III-R). Washington, DC. Andrews, G., Peters, L., Guzman, A. M., and Bird, K. A. (1995). Comparison of two structured diagnostic interviews: CIDI and SCAN. Aust. NZ. J. Psych. 29: 124–132.
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Araujo, A. B., Durante, R., Feldman, H. A., Goldstein, I., and McKinlay, J. B. (1998). The relationship between depressive symptoms and male erectile dysfunction: Cross-sectional results from the Massachusetts Male Aging Study. Psychosom. Med. 60: 458–465. Barlow, D. H. (1986). Causes of sexual dysfunction: The role of anxiety and cognitive interference. J. Cons. Clin. Psychol. 54: 140–148. Bijl, R. V., Ravelli, A., and van Zessen, G. (1998a). Prevalence of psychiatric disorder in the general population: Results of the Netherlands Mental Health Survey and Incidence Study (NEMESIS). Soc. Psych. Psych. Epid. 32: 587–595. Bijl, R. V., van Zessen, G., Ravelli, A., de Rijk, C., and Langendoen, Y. (1998b). The Netherlands Mental Health Survey and Incidence Study (NEMESIS): Objectives and design. Soc. Psych. Psych. Epid. 32: 581–586. B¨ogels, S. M. (1999). Cognitieve therapie bij sociale fobie. In S. M. B¨ogels and P. van Oppen (eds.), Cognitieve Therapie: Theorie en Praktijk. Houten/Diegem, Bohn Stafleu Van Loghum. Catalan, J., Hawton, K., and Day, A. (1990). Couples referred to a sexual dysfunction clinic: Psychological and physical morbidity. Br. J. Psych. 156: 61–67. Condra, M., Morales, A., Owen, J. A., Surridge, D. H., and Fenemore, J. (1986). Prevalence and significance of tobacco smoking in impotence. Urology 27: 495–498. Cottler, L. B., Robins, L. N., Grant, B. F., Blaine, J., Towle, L. H., and Wittchen, H. U. (1991). The CIDI-core substance abuse and dependence questions: Cross-cultural and nosological issues. The WHO/ADAMHA field trial. Br. J. Psych. 159: 653–658. Cranston-Cuebas, M. A., and Barlow, D. H. (1990). Cognitive and affective contributions to sexual functioning. Ann. Rev. Sex Res. 1: 119–161. Crenshaw, T. L., and Goldberg, J. P. (1996). Sexual Pharmacology. Norton, New York. Derogatis, L. R., Meyer, J. K., and King, M. A. (1981). Psychopathology in individuals with sexual dysfunction. Am. J. Psych. 138: 757–763. Derogatis, L. R., and Melisaratos, N. (1983). The Brief Symptom Inventory: An introductory report. Psych. Med. 13: 595–605. Fagan, P. J., Schmidt, C. W., Wise, T. N., and Derogatis, L. R. (1988). Sexual dysfunction and dual psychiatric diagnoses. Comp. Psych. 29: 278–284. Farmer, A. E., Katz, R., McGuffin, P., and Bebbington, P. (1987). A comparison between the present state examination and the Composite International Diagnostic Interview. Arch. Gen. Psych. 44: 1064–1068. Farmer, A. E., Jenkins, P. L., Katz, R., and Ryder, L. (1991). Comparison of CATEGO-derived ICD-8 and DSM-III classifications using the Composite International Diagnostic Interview in severely ill subjects. Br. J. Psych. 158: 177–182. Hartman, L. M., and Daly, E. M. (1983). Relationship factors in the treatment of sexual dysfunction. Beh. Res. Ther. 21: 153–160. Hawton, K., Catalan, J., Martin, P., and Fagg, J. (1986). Long-term outcome of sex therapy. Beh. Res. Ther. 24: 665–675. Hawton, K., Catalan, J., and Fagg, J. (1991). Low sexual desire: Sex therapy results and prognostic factors. Beh. Res. Ther. 29: 217–224. Hawton, K., Catalan, J., and Fagg, J. (1992). Sex therapy for erectile dysfunction: Characteristics of couples, treatment outcome, and prognostic factors. Arch. Sex. Beh. 21: 161–176. Helzer, J. E., Robins, L. N., McEvoy, L. T., Spitznagel, E. L., Stoltzman, R. K., Farmer, A. E., et al. (1985). A comparison of clinical and diagnostic interview schedule diagnoses. Physician reexamination of lay-interviewed cases in the general population. Arch. Gen. Psych. 42: 657–666. Hirshkowitz, M., Karacan, I., Howell, J. W., Arcasoy, M. O., and Williams, R. L. (1992). Nocturnal penile tumescence in cigarette smokers with erectile dysfunction. Urology 39: 101–107. Kockott, G., and Pfeiffer, W. (1996). Sexual disorders in nonacute psychiatric outpatients. Comp. Psych. 37: 56–61. Meana, M., and Binik, Y. M. (1994). Painful coitus: A review of female dyspareunia. J. Nerv. Ment. Dis. 182: 264–272. Mitchell, W. B., DiBartolo, P. M., Brown, T. A., and Barlow, D. H. (1998). Effects of positive and negative mood on sexual arousal in sexually functional males. Arch. Sex. Beh. 27: 197–207. Offit, A. K. (1989). Psychiatric disorders and sexual functioning. In American Psychiatric Association: Treatment of Psychiatric Disorders: A Task Force Report of the American Psychiatric Association. Vol. 3. APA, Washington, DC.
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Olson, C. L. (1979). Practical considerations in choosing a MANOVA test statistic: A rejoinder to Stevens. Psych. Bull. 86: 1350–1352. Osborne, M., Hawton, K., and Gath, D. (1988). Sexual dysfunction among middle aged women in the community. Br. Med. J. 296: 959–962. Robins, L. N., Wing, J., Wittchen, H. U., Helzer, J. E., Babor, T. F., and Burke, J., et al. (1988). The Composite International Diagnostic Interview. An epidemiologic instrument suitable for use in conjunction with different diagnostic systems and in different cultures. Arch. Gen. Psych. 45: 1069–1077. Rust, J., and Golombok, S. (1986). The GRISS: A psychometric instrument for the assessment of sexual dysfunction. Arch. Sex. Beh. 15: 157–165. Safir, M. P., and Almagor, M. (1991). Psychopathology associated with sexual dysfunction. J. Clin. Psychol. 47: 17–27. Sarwer, D. B., and Durlak, J. A. (1997). A field trial of the effectiveness of behavioral treatment for sexual dysfunctions. J. Sex. Mar. Ther. 23: 87–97. Schover, L. R., Youngs, D. D., and Cannata, R. (1992). Psychosexual aspects of the evaluation and management of vulvar vestibulitis. Am. J. Ob. Gyn. 167: 630–636. Schreiner-Engel, P., and Schiavi, R. C. (1986). Lifetime psychopathology in individuals with low sexual desire. J. Nerv. Ment. Dis. 174: 646–651. Shabsigh, R., Klein, L. T., Seidman, S., Kaplan, S. A., Lehrhoff, B. J., and Ritter, J. S. (1998). Increased incidence of depressive symptoms in men with erectile dysfunction. Urology 52: 848–852. Spano, L., and Lamont, J. A. (1975). Dyspareunia: A symptom of female sexual dysfunction. Can. Nurse 71: 22–25. Strassberg, D. S., Mahoney, J. M., Schaugaard, M., and Hale, V. E. (1990). The role of anxiety in premature ejaculation: A psychophysiological model. Arch. Sex. Beh. 19: 251–257. ter Kuile, M. M., van Lankveld, J. J. D. M., Kalkhoven, P., and van Egmond, M. (1999). The Golombok Rust Inventory of Sexual Satisfaction (GRISS): Psychometric properties within a Dutch population. J. Sex. Mar. Ther. 25: 59–71. Trudel, G., Boulos, L., and Matte, B. (1993). Dyadic adjustment in couples with hypoactive sexual desire. J. Sex Educ. Ther. 19: 31–36. van Lankveld, J. J. D. M. (1998). Cognitive–Behavioral Bibliotherapy for Sexual Dysfunctions in Heterosexual Couples. PhD Dissertation; Rijksuniversiteit Leiden, the Netherlands. van Lankveld, J. J. D. M., and ter Kuile, M. M. (1999). The Golombok Rust Inventory of Sexual Satisfaction (GRISS): Predictive validity and construct validity in a Dutch population. Pers. Ind. Diff. 26: 1005–1023. van Lankveld, J. J. D. M., Grotjohann, Y., van Lokven, B. M. E., and Everaerd, W. (1999). Sexual, psychological, psychiatric and marital characteristics of couples applying for bibliotherapy via different recruitment strategies: A multivariate comparison. J. Sex. Mar. Ther. 25: 197–209. Wing, J. K., Cooper, J., and Sartorius, H. (1974). The Measurement and Classification of Psychiatric Symptoms. Cambridge University Press, Cambridge. Wittchen, H. U., Zhao, S., Abelson, J. M., Abelson, J. L., and Kessler, R. C. (1996). Reliability and procedural validity of UM-CIDI DSM-III-R phobic disorders. Psych. Med. 26: 1169–1177. World Health Organization. (1992). Composite International Diagnostic Interview. Version 1.1. WHO, Division of Mental Health, Geneva.
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Family Cooccurrence of “Gender Dysphoria”: Ten Sibling or Parent–Child Pairs1 Richard Green, M.D., J.D., F.R.C.Psych2
Ten (10) sets of siblings or parent–child pairs concordant for gender identity disorder (transsexualism) or gender identity disorder and transvestitism are reported. For concordant gender identity disorder, there is one set of male monozygotic twins; three sets of non-twin brothers; one brother-and-sister pair; one set of sisters; and one father and son. With gender identity disorder and transvestism, there is one transsexual father with a gender dysphoric; transvestic son; one transvestic father with a gender dysphoric, transvestic son; and one transvestic father with a transsexual daughter. The emerging technology of genetic markers makes collation of such families a potentially valuable resource for unraveling the origins of atypical gender identity. KEY WORDS: transsexualism; transvestism; gender dysphoria; genetics; family studies.
INTRODUCTION Although speculation has been rife for decades suggesting a biological or genetic basis for transsexualism (Green and Money, 1969), little supportive evidence has been advanced. A posited HY antigen etiology was proposed when a series of male transsexuals were reported to lack this antigen that is largely responsible for male differentiation (Eicher et al., 1979). However, a replication effort failed when another series of male transsexuals were all found to have the HY antigen (Wachtel et al., 1986). Some reports indicate a higher than expected rate of polycystic ovarian disease, with the accompanying elevated androgen levels, in female transsexuals (e.g., Futterweit et al., 1986). However, the fit between the 1 Some
patients reported here have been seen by other psychiatrists as well as the author, including Ghazala Afzal, James Barrett, David Dalrymple, Don Montgomery, Mark Morris, John Randall, Russell Reid, and Ashley Robin. 2 Research Director and Head, Gender Identity Clinic, Imperial College, School of Medicine, Charing Cross Hospital, London W6 8RF England. 499 C 2000 Plenum Publishing Corporation 0004-0002/00/1000-0499$18.00/0 °
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two disorders is loose: nearly all females with this disorder are not transsexual, and the majority of transsexual females do not have the disorder (Gorzynski and Katz, 1977; Raboch et al., 1985). Another endocrine finding, requiring confirmation, implicates an atypical form of congenital adrenal hyperplasia in female transsexuals (Dorner, 1991; Bosinski et al., 1997). An anatomic study found a brain difference in the size of the bed nucleus of the stria terminalis in male transsexuals. In 6 patients studied postmortem, collected over 10 years, this nucleus was closer to typical female size than to typical male size (Zhou et al., 1995). Indirect markers of a biological origin have been reported more recently. These include hand use preference (reflecting prenatally organized cerebral laterality) with both male and female transsexuals more often non-right-handed than controls (Green, unpublished); fingerprint asymmetry patterns that develop prenatally and may be sex-steroid influenced, with homosexual transsexuals, male or female, differing from control males and females (Green and Young, 2000); birth order, with homosexual male transsexuals having more older brothers, a finding similar to that with homosexual male non-transsexuals (Green, 2000); and male transsexuals having more maternal aunts than maternal uncles, a finding also similar to that with homosexual male non-transsexuals (Green and Keverne, 2000). Several small sample reports on transsexualism involve siblings. An early pair of monozygotic twin males concordant for transsexualism was described (Anchersen, 1956). However, two pairs of monozygotic twins, one male and one female, discordant for transsexualism were later described (Green and Stoller, 1971). Then a male monozygotic twin pair, concordant for transsexualism and discordant for schizophrenia, was reported (Hyde and Kenna, 1977). Transsexualism was also found in two male triplets with unreported zygosity, who had a non-transsexual sister (McKee, Roback, and Hollender, 1976). A pair of male transsexual non-twin brothers was reported (Ball, 1981), as were two other pairs of transsexual, nontwin brothers (Stoller and Baker, 1972; Hore, Nicolle, and Calnan, 1972). There is a report of three non-twin transsexual brothers (Sabalis et al., 1974). Reported here are 10 brief vignettes with the cooccurrence of transsexualism, now diagnosed as gender identity disorder, or transsexualism and transvestism in siblings or parent–child pairs. METHODS Cases were seen at the Gender Identity Clinic, Charing Cross Hospital, London, the principal clinic for gender-dysphoric males and females in the United Kingdom. Nearly all patients were interviewed by the author, and some also by the author’s colleagues. For other vignettes, information was obtained from a patient about a family member or from patient charts.
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Case One: Monozygotic Twins Concordant for Male-to-Female Transsexualism Twin One A monozygotic transsexual male twin who wanted to be female since age 8. Initially evaluated at 35. Cross-dressing in sister’s clothes was recalled from age 10, an activity shared by co-twin. Cross-dressing was sexually arousing in teens. First married as a late adolescent for 4 years and had a child. Remarriage at age 26 with another child. Divorced. Sexual relationships have been only with females, but some current sexual attractions are to males. Alcohol consumption had been heavy, but there has been abstinence for years. Co-twin continues to drink excessively. Female hormone treatment at age 35. Episode of paranoid schizophrenia at age 40. Referred for sex reassignment surgery at age 44. Twin Two Co-twin initially evaluated at age 36. Reported that the twins have never been close and that they were treated comparably by their parents. Fetishistically transvestic from adolescence through adulthood, with sexual arousal to crossdressing only diminishing with estrogen treatment. Married for 3 years with one child. Divorced. Sexual attractions to females. Commenced female hormone treatment at age 37. Sex reassignment surgery at age 43.
Case Two: Male-to-Female Transsexual Brothers (Example 1) A preoperative transsexual male initially evaluated at age 24. Has a brother 2 years older who is a postoperative male-to-female transsexual (not interviewed) who obtained surgery at age 26. Early memories include being closer to girls and disliking boyish activities. Preferred playing with sister’s dolls, not with cars or trucks. Dressed up in mother’s clothes from age 7. Felt like a woman from age 13. Regular cross-dressing from age 16. Cross-dressing reported as not sexually arousing. Sexual relationships only with males. Female hormone treatment at age 24. Sex reassignment surgery at age 30. Both sons are reported by mother to have strongly preferred playing with girls’ toys as youngsters. Mother initially considered it to be a passing phase. Brought her two sons to see a psychiatrist when they were ages 8 and 10 because she was concerned about their continuing cross-gender behavior. Mother denies encouraging feminine behavior and says they obtained dolls from their sister. She also reported that one of her sisters is lesbian.
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Case Three: Male-to-Female Transsexual Brothers (Example 2) Younger brother 24 years old when initially referred to a gender identity clinic. Had been cross-dressing since age 10. Girls’ toys and girl playmates were preferred. Cross-dressing had been sexually arousing. Sexual partners were female. Female hormone treatment at age 25. Sex reassignment surgery at age 29. At age 32, was unhappy living as a woman, wanted reversal to male status to function sexually with a female. Received androgen. Considered but did not undergo phalloplasty. At age 40, stopped androgen because of “excessive” facial and body hair. Reported “Still at heart I would like to live as a woman.” Older brother by 6 years (not interviewed) also underwent sex reassignment surgery. By younger brother’s account, older brother was not doing well socially or vocationally postoperatively, but continued to live as a woman.
Case Four: Male-to-Female Transsexual Brothers (Example 3) Brother One Initially consulted a gender identity clinic at age 45. Commenced crossdressing at age 7. Female peer group in childhood. Hated sports. In teens, crossdressing was sexually arousing, and thought he was transsexual. Married in midtwenties. Began female hormone treatment at age 52, while still married. Learned that brother was a postoperative transsexual and confided his own transsexualism to brother. Began living as a woman at age 57. Referred for sex reassignment surgery at age 61.
Brother Two Seven years younger. Initially consulted a gender identity clinic at age 36. Cross-dressed since middle childhood. Married 7 years and divorced. Commenced cross-gender living at age 38, several years before older brother commenced crossgender living. Female hormone treatment at age 40. Sex reassignment surgery at age 41. Case Five: Female-to-Male Transsexual with Transvestic Father Initially evaluated at age 29. Remembers “peeing against the wall” as a 3-year-old girl. Refused to play with dolls and played with cars. Friends were mostly boys. Refused to dress as a girl. Realized she did not have a penis but thought she was a boy anyway. Parents separated when she was age 5 and she
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lived with father. Felt rejected by him and feels that perhaps had she been a boy he would have been more accepting. At age 14, before the first menstrual period, thought she was a boy and would become a man. Erotic fantasies engage female partners. First knew about father’s transvestism when, at age 14 or 15, saw a photograph of him cross-dressed. Father acknowledged regular cross-dressing to her.
Case Six: Male-to-Female Transsexual with Gender-Dysphoric Father Son Gender dysphoria dates to age 5 or 6 when he became fascinated with mother’s clothes and dressed as a woman in a play. At age 8 did not want his penis. Crossdressing from age 10 or 11. At ages 12 to 14, cross-dressing was accompanied by sexual arousal. Married at age 20 and remained married for 16 years. One child. Sexual relationship with wife accompanied by fantasies of being a woman. Initially clinically evaluated at age 30. Female hormone treatment commenced at age 32. Current masturbation fantasies are of sexual relations as a female, perhaps with a male partner. When 30 years old was visited by the 59-year-old father, who told this son that he had been dressing as a woman for 2 years. Father asked son for permission to use the son’s female hormones. Father Feminine interests from age 8 or 9. Cross-dressing in sister’s clothing between ages 10 and 12. Cross-dressing reported as not accompanied by sexual arousal. Was currently intermittently dressing as a woman at home. Had consulted a surgeon for sex reassignment surgery, but did not go forward for fear that his wife would leave him. Not seen at a gender identity clinic until age 60. Two children, one of whom is the transsexual patient described previously. Was being treated with estrogen at the time of his death from a pulmonary embolus.
Case Seven: Transsexual Father with Gender-Dysphoric, Transvestic Son Son A 28-year-old who recalls female role-playing at age 5 and discomfort being a boy from age 7. Father left the home when son was age 9. Cross-dressing was sexually arousing at age 11. Most sexual attractions have been to females. When
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age 14 or 15, was told by mother that father was living as a woman. Son remains deeply troubled by his gender dysphoria and transvestism.
Father Initially consulted a physician for gender dysphoria at age 41. Reported feeling wrong as a male since childhood. Cross-dressing from age 16, initially sexually arousing. No sexual attraction to males. Full-time cross-gender living at age 44. Female hormone treatment at age 45. Sex reassignment surgery at age 55.
Case Eight: Gender-Dysphoric, Formerly Transvestic, Son with Transvestite Father Son Initial contact with a gender identity clinic at age 42. Felt different from other boys when young. Preferred female playmates. Cross-dressing from age 11. Cross-dressing sexually arousing from teen years. Gender dysphoric from age 22. Sexually attracted to females. Commenced estrogen treatment and cross-gender living at age 43.
Father When father died at age 56, mother found women’s clothes secreted in his closet. Father had had long fingernails and permed hair. Son never saw father cross-dressed.
Case Nine: Male Transsexual with Gender-Dysphoric Sister Brother Initially evaluated at age 22. Enjoyed girls’ toys as a child. Remembered wanting to be a woman since age 12. Was conscious of sexual interests in males from age 10 or 11. “Never fitted in” as a boy. Voice barely broke (by patient’s accounting) during adolescence, although puberty did commence at age 12. A small degree of adolescent breast development. Did not develop much facial or body hair. Testosterone level below normal and estrogen level high normal prior to endocrine therapy. Sexual attractions are to men as a woman. Sex reassignment surgery at age 28.
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Sister A 27-year-old female who reports being “convinced she is male inside since age 3.” Hates her body. Although gender dysphoric, decided not to pursue sex reassignment because of surgical deficiencies with phalloplasty and not wanting to go through all the social changes required. Would have wanted a sexual relationship as a male with a female. No sexual interest in males. Recalls that brother wanted to dress as a girl and play with girls’ toys from a young age, and she, 4 years older, wanted to play with guns and with boys. Case Ten: Two Transsexual Sisters Sister One An 18-year-old female who has been gender dysphoric since age 11. At age 13, with younger sister who was then age 11, saw a television documentary about transsexualism. Both sisters expressed their gender dysphoria and resonated with the documentary. Hates her body. Romantic feelings for females. Refuses to consider the possibility of being lesbian. Is receiving androgen injections. Sister Two A 15-year-old female who at age 11 was gender dysphoric in a manner comparable to the older sister. Was uncomfortable with her body and felt as if she were a boy. Romantic feelings for females. Refuses to be lesbian. Wants to initiate androgen treatment. Mother and father describe both daughters as having been rough-and-tumble when very young and also being athletic. Both played games with boys and with father. Both disliked dolls. Younger daughter said when in preschool, “I’m waiting for my willy to grow.” DISCUSSION The prevalence of male transsexualism is estimated at 1 in 10,000 and female transsexualism at 1 in 30,000 (Kesteran et al., 1996). Thus, for a set of male twins or two brothers in a two-sibling family, the odds for both being transsexual are 1/100,000,000, assuming random selection, or 1/10,000 when one sibling is already identified as transsexual. It is somewhat lower in larger families with more siblings, but higher in male–female sibling pairs. The rarity of both transsexualism and transvestism makes the chance cooccurrence in father and child very improbable. The cases here are called from a patient pool of about 1,500.
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Father–child co-existing gender identity disorder or gender identity disorder and transvestism in our sample cannot be explained simply by evoking role modeling. This is because the children ostensibly did not know of the father’s atypical gender behavior before they themselves manifested atypical gender behavior. Familial cases of gender identity disorder were reviewed by Freund (1985) and categorized as concordant or discordant for sexual orientation. No instances of a mixed heterosexual and homosexual pattern in the same family were found. The interpretation was that the two groups of gender-identity disorder have different etiologies. In the 10 family series reported here, only Case Five contains a mixed heterosexual/homosexual family pair. This brief report is intended to stimulate study of families with cooccurring gender dysphoria, transsexualism, or transvestism. It is not intended as a full clinical description of the patients. The vignettes do not detail potential social learning or psychodynamic influences on these persons’ atypical development. Rather, their reporting here suggests promise for sophisticated genetic studies of such families with the newly emergent techniques of genetic science. Genetic marking technology should make family tree studies with such persons practical. This has already yielded positive results in the study of origins of male homosexual orientation in families with more than one homosexual male sibling (Hamer et al., 1993). Clinicians evaluating and treating gender-identity patients with a positive family history should, with patient’s consent, collect and store blood samples for future genetic analyses. Clinicians seeing patients in whose families gender dysphoria cooccurs should contribute to a family research database. Some concordant cases find their way into the popular media; for example, a women’s weekly magazine report of female identical twins concordant for transsexualism (Broadbent, 1996). These cases must be reported in scholarly publications. In consequence of the rarity of transsexualism, a pooling from the various centers worldwide is required to take this attempt to understand the origins of this vexing disorder to the next level. ACKNOWLEDGMENT I am grateful to Ray Blanchard for reminding me of the 1985 report by Kurt Freund and its relation to the findings reported here. REFERENCES Anchersen, P. (1956). Problems of transvestism. Acta Psychiatr. Neurol. Scand. (Suppl) 106: 249–256. Balen, A., Schacter, M., Montgomery, D., Reid, R., and Jacobs, H. (1993). Polycystic ovaries are a common finding in untreated female-to-male transsexuals. Clin. Endocrin. 38: 325–329. Ball, J. (1981). Thirty years experience with transsexualism. Aust. NZ. J. Med. 15: 39–43.
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Bosinski, H., Peter, M., Bonatz, G., Arndt, R., Heidenreich, M., Sippell, W., and Wille, R. (1997). A higher rate of hyperandrogenic disorders in female-to-male transsexuals. Psychoneuroendocrinology 22: 361–380. Broadbent, L. (1996). Twin sisters who wanted to be men. Now 5 December, pp. 6–9. Dorner, G., Poppe, I., Kolzsch, J., and Uebelhack, R. (1991). Gene and environment dependent neuroendocrine etiogenesis of homosexuality and transsexualism. Exp. Clin. Endocrin. 98: 141–150. Eicher, W., Spoljar, M., Cleve, H., Murken, J., Richter, K., and Stengel-Rutkowski. (1979). H-Y antigen in trans-sexuality. Lancet 2: 1137–1138. Freund, K. (1985). Cross-gender identity in a broader context. In Steiner, B. (ed), Gender Dysphoria: Development, Research, Management. Plenum, New York, pp. 259–324. Futterweit, W., Weiss, R., and Fagerstrom, R. (1986). Endocrine evaluation of 40 female-to-male transsexuals. Arch. Sex. Behav. 15: 69–78. Green, R. (2000). Birth order and ratio of brothers to sisters in transsexuals. Psychological Medicine. Green, R., and Keverne, E. B. (2000). The disparate maternal aunt-uncle ratio in male transsexuals: An explanation invoking genomic imprinting. J. Theor. Biol. 202: 55–63. Green, R., and Young, R. (2000). Fingerprint asymmetry in male and female transsexuals. Personality and Individual Differences. Green, R., and Money, J. (eds.). (1969). Transsexualism and Sex Reassignment. Baltimore, The Johns Hopkins Press. Green, R., and Stoller, R. (1971). Two pairs of monozygotic (identical) twins discordant for gender identity. Arch. Sex. Behav. 1: 321–328. Gorzynski, G., and Katz, J. (1977). The polycystic ovary syndrome. Arch. Sex. Behav. 6: 215–222. Hamer, D., Hu, N., Magnuson, V., Hu, N., and Pattatucci, A. (1993). A linkage between DNA markers on the X chromosome and male sexual orientation. Science 261: 321–327. Hore, B., Phil, M., Nicolle, F., and Calnan, J. (1973). Male transsexualism: Two cases in a single family. Arch. Sex. Behav. 2: 317–321. Hyde, C., and Kenna, J. (1977). A male MZ twin pair, concordant for transsexualism, discordant for schizophrenia. Acta Psych. Scand. 56: 265–275. McKee, E., Roback, H., and Hollender, M. (1976). Transsexualism in two male triplets. Am. J. Psych. 133: 334–336. Raboch, J., Kobilkova, J., Raboch, J., and Starka, L. (1985). Sexual life of women with Stein-Leventhal syndrome. Arch. Sex. Behav. 14: 263–270. Sabalis, R., Frances, A., Appenzeller, S., and Mosely, W. (1974). The three sisters: Transsexual male siblings. Am. J. Psych. 131: 907–909. Stoller, R., and Baker, H. (1973). Two male transsexuals in one family. Arch. Sex. Behav. 2: 323–328. van, Kesteran, P., Gooren, L., and Megens, J. (1996). An epidemiological and demographic study of transsexuals in the Netherlands. Arch. Sex. Behav. 25: 589–600. Wachtel, S., Green, R., Simon, N., Reichardt, A., Cahill, L., Hall, J., Nokamura, D., Wachtel, G., Futterweit, W., Biber, S., and Ihlenfield, C. (1986). On the expression of H-Y antigen in transsexuals. Arch. Sex. Behav. 15: 49–66. Zhou, J., Hofman, M., Gooren, L., and Swaab, D. (1995). A sex difference in the brain and its relation to transsexuality. Nature 378: 68–70.
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BOOK REVIEWS Erotic Innocence: The Culture of Child Molesting. By James R. Kincaid. Duke University Press, Durham, NC, 1998, 352 pp., $24.95 (hardback), $16.95 (paperback). Reviewed by Donald J. West, M.D.1
This substantial work, with 500 annotations and references and authored by a professor of English, is indisputably academic, but its literary style is not that of traditional sexologic writings, with operationally defined hypotheses confirmed by experimental or survey evidence. Instead, one is presented with intriguing aphorisms, metaphoric argumentation, and challenging assertions that cast doubt on common assumptions, but fall short of simple, scientifically testable propositions. Kincaid is convinced that modern American (and for that matter, all Western) society has gone over the top in its concern about child sexual abuse, its exaggerated estimates of prevalence, and its demonization of the multitude of monsters believed to threaten the sexual innocence of children. He bemoans the contrast between this preoccupation and society’s avoidance of the larger problems of child hunger, child neglect, child poverty, child labor, child suicide, and children killed by their caregivers: “We fix our eyes on sexual abuse, a comparatively minor problem, because it pleases us to talk about it. Meanwhile, about 2,000 children a year die in America from physical abuse and neglect, and 160,000 are seriously injured” (p. 160). That concern about sexual abuse of children has spawned a moral panic and led to some irrational and damaging overreactions is a familiar argument. It is supported here with numerous examples. In Chapter 1, an account of a young married woman drama teacher, prosecuted for an alleged affair with a 17-year-old student, is used to show how an ambiguous situation gets twisted to fit the stereotypical story of juvenile victim and wicked predator. The male complainant (who lies and is manipulative, according to his mother when she is seeking therapy for him) could have been a rejected young sex pest out for revenge, but the prosecution 1 Institute
of Criminology, University of Cambridge, 7 West Road, Cambridge CB3 9DT England. 509 C 2000 Plenum Publishing Corporation 0004-0002/00/1000-0509$18.00/0 °
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preferred to view the teacher as having “preyed on an impressionable young student in order to satisfy her need for affection.” The allegations were implausible and unsubstantiated and she was acquitted, but, according to press reports, intercourse was likely to have occurred and the paternity of her pregnancy was open to question. In fact, she had not been prosecuted for intercourse because the young man was above the then age of consent (which was raised later), but for the more salacious-sounding charge of oral copulation with a minor. Despite an acquittal, her teaching credentials were not renewed and, years later, she was still facing a civil suit for damages on behalf of her supposed victim. More notorious examples are cited in later chapters. In the McMartin case, which began with allegations from a paranoid schizophrenic mother, members of the family running a preschool facility were accused of bizarre forms of sexual abuse against children in their care. The process carried on for 7 years with increasingly fantastic assertions dragged out of children in the course of bullying interrogations. The prosecutions finally petered out in mistrials and acquittals, having meantime brought ruin to the suspects and misery to the children and their families. The Menendez trial of two brothers who murdered both parents in an attempt to secure the family fortune is cited because the defendants used (to great effect, although ultimately unsuccessfully), a plea that they had been sexually abused by their father as children. It seems that in the eyes of many people, the crime of sexual abuse is uniquely heinous and justifies murdering the perpetrators. Belief in satanic sexual abuse involving the massacre of babies has largely evaporated, extensive police inquiries having discovered no remains. For such claims to have been taken seriously, people must have been convinced that children’s allegations, however implausible, must be true and that memories implanted by hypnotic suggestion are accurate reproductions. In the Franklin case, a father was kept in prison for 6 years under sentence for murder on the basis of his daughter’s hypnotically “recovered memory” of an otherwise unsubstantiated incident, 20 years earlier, when she supposedly witnessed him kill her 8-year-old friend (see Ofshe and Watters, 1994). Panic about children’s sexual vulnerability is reflected in exaggerated ideas about the number of sex-related abductions of children—some of them by aliens! Kincaid finds hypocritical and dangerous the idealized picture that has developed of a totally honest, sexually innocent, and morally pure childhood: “The child’s complete and uncomplicated veracity is accorded a respect almost absurd to anyone who has ever spent more than a few seconds with an actual child” (p. 211). The assumption of innocence is ill-fitting with the thinly disguised sexual antics of the child heroines of popular films and books. The adorable qualities of Alice in Wonderland and Peter Pan are, by convention, divorced from suggestions of overt erotic interest. Graham Greene was successfully sued for his frank comments, in a review of a Shirley Temple film, about the child star’s “sidelong searching coquetry,” her “well-shaped desirable little body,” and the “mature suggestiveness of
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a Dietrich” (p. 114). Kincaid finds boy stars equally titillating, with their frequent underwear masquerades, butt exposures, and pedophilic innuendoes. In the popular film theme in which “the lovely and lonely child bonds with a misfit adult” (p. 129), suggestively pedophilic relationships are sanitized by endings that see the adult somehow eliminated at the end. For example, in Clint Eastwood’s 1993 film, A Perfect World, the boy Buzz is rescued from an unsympathetic home through kidnap by a convict who assumes a buddy role and saves Buzz from the crude sexual molestations of another con. This legitimizes some near-overt sexual interplay in which he inspects Buzz’s penis to assure him it is developing adequately. In a “preposterous” contrived ending, Buzz shoots his buddy, thereby freeing the story from a too-obvious pedophilic taint. According to Kincaid, images of the adorable child coexist with contrasting images of thankless, rebellious children, ever-worsening youthful delinquency, murderous children, and numerous young sex predators. Resentment burgeons when children reach the awkward age of later teens and cease to be cute. This he sees reflected in the shabby treatment often received by child movie stars once they pass through puberty. Kincaid has explanations for all this, but one is hard put to find where he sets them out with precision. He comes nearest to it in the Introduction. Given the exploitation of cute (i.e., sexually provocative) children in movies and advertisements, awareness of their erotic potential is unavoidable: “I believe most adults in our culture feel some measure of erotic attraction to children and the childlike; I do not know how it could be otherwise” (p. 25). Denial that parental love is tinged with erotic feelings leads to insistence that any manifestation of the kind is an abomination perpetrated only by unspeakably vile and irredeemable pedophiles. There is no real need for such panic: “I suggest that just about all of us, looking at what is what in the face, will not find ourselves compelled to have sex with children” (p. 25). Factual evidence fails to support the myths that children are constantly exposed to risk of assault by ubiquitous sexual predators or that this is the origin of so many of the mental problems of adult life. The argument makes full use of what is dubbed the backlash literature (Gardner, 1992; Yapko, 1994), which highlights the absurdity of claims that serious sex abuse is a near universal childhood experience and warns of the danger to children (Berrick, 1991) of “a package of terror and mendacity [that] acts as an education in anxiety, confusion and distrust, and exactly the wrong kind of empowerment” (i.e., empowerment to blackmail). Yet Kincaid disapproves of the tendency of most backlash writers to bow to conventional views by conceding that, despite exaggerations, child sex abuse is still a common phenomenon and a serious social problem. Seemingly, he would prefer to view adult–child interactions as infinitely varied and only occasionally problematic, although nowhere is this expressed baldly. The difficulty of obtaining objective evidence for Kincaid’s particular interpretations is acknowledged; for example, where he remarks that, “it is time to talk
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about the talking” but that “It should be clear, though, that there is no position inside the present discussions of children, sexuality and power that will allow me to assess with easy objectivity what those discussions are doing” (p. 7). He cites no plethysmographic surveys to show that various degrees of sexual arousal to children of different ages are widely distributed throughout the population. Whether, as clinical evidence suggests, pedophilia exists as a relatively discrete entity limited to a small minority or as a continuum in some degree affecting most adults is as yet an open question on which research is badly needed. By viewing attachment to children as a range of erotically tinged attitudes and emotions and cultural expectations that are not necessarily threatening, Kincaid avoids considering simplistic measures of sexual arousal patterns. REFERENCES Berrick, J. D., and Gilbert, N. (1991). With the Best of Intentions: The Child Sexual Abuse Prevention Movement, Guildford Press, New York. Gardner, R. A. (1992). True and False Accusations of Childhood Sex Abuse, Creative Therapeutics, Creeskill, NJ. Ofshe, R., and Watters, E. (1994). Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria, Charles Scribner’s Sons, New York. Yapko, M. D. (1994). Suggestions of Abuse, Simon & Schuster, New York.
Suggestions of Abuse. By Michael D. Yapko. Simon & Schuster, NY, 1994, 271 pp., $22.00. Reviewed by David C. Prichard, Ph.D.2
In the preface, Yapko begins with a compelling story of a man who, for 20 years, claimed to have been a POW in Vietnam. His wife was unwavering in her belief in the validity of her husband’s war experiences, but on his death discovers that the story was invented and that the diagnosis of posttraumatic stress disorder for which he received treatment was fictional. Yapko parallels this scenario to a hypothetical one in which a woman, with assistance from her therapist, apparently recalls repressed memories of sexual abuse. A powerful beginning to an equally powerful and controversial debate on memory, repression, sexual abuse, and false memories. Yapko’s book is concerned primarily with “those cases in which allegations of abuse are made on the basis of memories that were recovered through suggestions of a therapist” (p. x). He attempts to achieve this goal by presenting the findings of a memory attitude and a hypnosis attitude survey administered to therapists, 2 School
of Social Work, University of New England, Biddeford, Maine 04005-9599.
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and through the use of anecdotes, case studies, and client narratives. Along the way, Yapko presents a sketch of both sides of a very difficult issue. On the one hand, research indicates that as many as two-thirds of all women have experienced sexual abuse in childhood (Kilpatrick et al., 1992), and there is a convincing literature in support of the validity of repressed memories of childhood sexual abuse recovered in adulthood (Dolan, 1989; Sgroi, 1989). On the other hand, there is equally convincing evidence that memories recalled under hypnosis or otherwise are not always reliable (Coons, 1988; Spanos et al., 1991). Although Yapko is careful to state at the outset his desire to present an objective, balanced view of both sides of the debate, there is a sense that Yapko focuses more on the data in support of false memory (Terr, 1988) than that supporting the validity of repressed memories of childhood sexual abuse recovered during therapy (Briere and Conte, 1993; Herman and Schatzow, 1987; Sgroi, 1989; Usser and Neissman, 1993). He appears to use extreme examples of documented cases of false memories in situations not related to the recovery of memories of childhood sexual abuse, and then generalizes these to make his case. In addition to the Vietnam example, he speaks of the research on past lives and abduction by space aliens, and uses these, in part, to build his case for the possibility of false memories among childhood sexual abuse survivors. Certainly, these cases tell us something about the nature of memory and the ability of individuals to believe falsehoods, but it seems inappropriate and insensitive to place sexual abuse of children, a welldocumented occurrence in many cultures, in the same category as abduction by space aliens and past-life regression, the validity of which speaks for itself. Despite his protestations to the contrary, this trivializes and reduces childhood sexual abuse to the fantastic. Certainly there is less sensational research he might have drawn from to make the same point. Since the publication of Yapko’s book, there is research emerging that supports the veracity of repressed memories and lends credence to the possibility of these memories being recovered during therapy (Gold et al., 1995; Williams, 1995). Williams (1995) presents convincing corroborated evidence on recovered memories of childhood sexual abuse. Her findings, verified from hospital records, suggest clearly that many women recalling sexual abuse in childhood had periods in the past when they did not remember what had happened to them. It is interesting to note that among the 129 women interviewed, 80 (62%) recalled the victimization and 16% reported that at some time in the past they had forgotten the abuse. The findings are clear, irrefutable, and corroborated that some women sexually abused as children appear to repress explicit recall of these memories, only to recover them in adulthood (see also Conway, 1999; Pezdek and Banks, 1996; Williams and Banyard, 1999). The strength of the book lies in Yapko’s attempt to collect information from therapists as to their view of the extent of the problem. He presents the results of the Memory Attitude Questionnaire and the Hypnosis Attitude Questionnaire, which
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he developed and administered to 860 therapists nationwide, mostly those attending national and international psychotherapy conferences. To his credit, Yapko does not suggest that the findings of his study are generalizable to the greater population of therapists. Nor does he suggest that his study used a random sampling of therapists. It would have been helpful to the professional reader if Yapko had discussed in greater detail the theoretical bases on which the instruments were developed, and what efforts were expended to assess their reliability and validity. It was disappointing that this information was not adequately presented, and this omission reinforces the perception that Yapko has written a book that is aimed largely at potential clients, and not for the very therapists on which the study was conducted. Yapko’s writing style does appear to accommodate the lay reader, but it does so at the expense of providing helpful information to the mental health professional. He relies heavily on qualitative data, which does make for a very readable book, but fails to develop fully and with scientific rigor the core issue of the wisdom of therapists relying on repressed memories of childhood sexual abuse recovered during therapy. Although Yapko has produced an interesting read, he contributes little to the professional literature on repression and the false memory debate. What Yapko has produced is a very worthwhile book for potential and current clients seeking to understand more fully, and in layperson’s terms, the essence of the two sides of the debate. The material within each chapter consists largely of anecdote, case study, and short narrative. He provides the reader with key points at the conclusion of each chapter. Yapko’s suggestion that therapists must be cautious of recovered memories of sexual abuse is valid. What he does not emphasize with nearly enough vigor is the need for clients to take their trauma reactions seriously and not deny their reactions to or the validity of early trauma. In his attempt to provide a cautionary note to potential clients seeking treatment, Yapko misses an opportunity to provide the reader with a truly balanced view of both sides of a most controversial issue. And despite protestations to the contrary, he does appear to do so at the expense of providing validation to readers that are true survivors of early childhood sexual abuse. REFERENCES Briere, J., and Conte, J. (1993). Self-reported amnesia for adults molested as children. J. Trauma Stress 6: 21–31. Conway, M. A. (1999). Review of the recovered memory/false memory debate. Arch. Sex. Behav. 28: 573–574. Coons, P. (1988). Misuse of forensic hypnosis: A theory-based approach. Psychotherapy 29: 243–252. Dolan, Y. (1989). Resolving Sexual Abuse: Solution-Focused Therapy and Ericksonian Hypnosis for Adult Survivors, Norton, New York. Gold, S., Hughes, D., and Swingle, J. (1995). Degrees of Memory of Sexual Abuse among Female Survivors. Paper presented at the 4th International Family Violence Research Conference, Durham, NH.
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Herman, J., and Schatzow, E. (1987). Recovery and verification of memories of childhood sexual trauma. Psychoanal. Psychol. 4: 1–14. Kilpatrick, D., Edmunds, C., and Seymour, A. (1992). Rape in America: A Report to the Nation, National Victim Center, Arlington, VA. Pezdek, K., and Banks, W. P. (eds.) (1996). The Recovered Memory/False Memory Debate, Academic Press, San Diego, CA. Sgroi, S. (1989). Stages of recovery for adult survivors of sexual abuse. In S. M. Sgroi (ed.), Vulnerable Populations. Vol 1: Evaluation and Treatment of Sexually Abused Children and Adult Survivors, Lexington Books, Lexington, MA, pp. 137–186. Spanos, N., Quigley, C., Gwynn, M., and Glatt, R. (1991). Hypnotic interrogation, pretrial preparation, and witness testimony during direct and cross-examination. Law Hum. Behav. 15: 639–653. Terr, L. (1988). What happens to early memories of trauma? A study of twenty children under age five at the time of documented traumatic events. J. Am. Acad. Child Adolesc. Psych. 27: 96–104. Usser, J., and Neissman, J. (1993). Childhood amnesia and the beginnings of memory for early life events. J. Exp. Psychol. Gen. 122: 155–165. Williams, L. (1995). Recovered memories of abuse in women with documented child sexual victimization histories. J. Traum. Stress 8: 649–673. Williams, L., and Banyard, V. L. (eds.) (1999). Trauma & Memory, Sage Publications, Thousand Oaks, CA.
Satanic Panic: The Creation of a Contemporary Legend. By Jeffrey S. Victor. Open Court Press, Chicago, 1993, 408 pp., $38.95 (hardback), $16.95 (paperback). Reviewed by Paul Okami, Ph.D.3
Satanic Panic is another in a series of recent attempts to debunk bizarre contemporary belief systems of pervasive danger, urban legends, and moral panics that flourish in spite of a lack of empirical evidence supporting the various claims made about them. Among this new “ghostbusting” genre would be Best (1990), Richardson et al. (1991), Loftus and Ketcham (1994), Ofshe and Watters (1994), Nathan and Snedeker (1995), and Pendergrast (1995). Some of these books, like Satanic Panic, are written by social scientists. Others, like Nathan and Snedeker’s (1995) excellent Satan’s Silence, are essentially journalistic works. In one sense, Satanic Panic is only of limited interest to professionals in human sexuality fields. Victor’s account of the rise of contemporary belief in organized, devil-worshipping “satanic cults”—which supposedly perpetrate the most heinous and disgusting crimes with impunity—does not focus in particular on putative crimes of a sexual nature (“ritual abuse” or “recovered memories”). Although topics of sexual abuse are considered, their coverage actually comprises a relatively small portion of the book. Since the publication of this book, important developments have occurred: many convictions have been overturned, jailed defendants released, therapists sued, and new charges brought as well. Overall, 3 Department
of Psychology, University of California at Los Angeles, 405 Hilgard Ave., Los Angeles, California 90095.
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Satanic Panic is concerned more generally with the modern history and nature of moral panics and urban legends surrounding satanism, and the implications these phenomena hold for American society. Satanic Panic thus differs from (but nicely complements) Nathan and Snedeker’s (1995) book, which is somewhat more upto-date and specifically focuses on claims made about “ritual” sexual abuse (see Okami, 1996). Nonetheless, Satanic Panic is an important work. One hesitates to use hyperbole, but regardless of whether one’s primary interest is in human sexuality issues, this simply is a book that ought to be read. Although there are some weaknesses from a behavioral science perspective (which I discuss later) and Victor could have used a good editor to help remove annoying redundancy and assist in organization, as a historical and journalistic work, the book fills an important void. Victor was able to collect data during the height of a “satanic panic” in his own backyard in Jamestown, New York, and thus trace the origin of rumors and events precipitating the panic and working these data into a more general picture of a process that has been operating over the past two decades in communities across the United States. Victor, who teaches sociology at a community college in Jamestown, is also very well versed in the history of fears about satanic cults and devil-worshipping, and is widely read in the social science literature concerning urban legends and moral panics. Therefore, because “the stakes are high” (as Victor states on more than one occasion), I found myself deeply engrossed in this book and finished its 400 pages in two sittings. Because there is no evidence supporting the existence of satanic cults, ritual abuse, and so on, Victor’s book focuses instead on those making claims about satanic abuse, the process of making claims, and its consequences. In this respect, Satanic Panic to some extent follows the model of social problems analysis advocated by Spector and Kituse (1977) and Best (1990). However, because Victor is flatly denying the validity of claims about satanic abuse, his book cannot be considered a true “social constructionist” account, where one remains “on the side” rather than “on a side” so as to more objectively view the activities of various actors in the social problems drama. Put very simply, Victor’s central hypothesis is that the rise of belief in satanic cults cannot be ascribed to “collective hysteria” or to the personalities, or even the self-interest of those involved (although self-interest may figure at a later date in the proliferation of media agents, therapists, law enforcement officials, and talk show “survivors” who profit from the panic). Instead, according to Victor, belief in satanic cults is, in a narrow sense, a “rational” response of generally decent but vulnerable people to powerful symbolic messages received as rumor and urban legend. That is, believers in satanic cults behave much as the average person would behave if he or she believed the rumors to have factual basis. “Collective hysteria,” “emotional contagion,” and other mental-illness derived terms obscure this important truth.
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Victor identifies a number of stressors—primarily economic slumps and rapid changes in sex roles and family life—that have disproportionately affected working-class Americans. It is this demographic group, which in rural areas consists of large numbers of fundamentalist Christians, that has, according to Victor, constituted the spine and the conduit of belief in the threat of satanism. Why satanism? Victor explains this in a number of ways. First, he points to the disappearance of faith in traditional morality during the 20th century and to the themes of devils and devil worship that characteristically run through American Christian heritage. Fears about the end of morality and belief in the devil and devil worship promote the idea that we are under attack from within. This notion has been expressed in previous decades in moral panics centered around other demonic foes, such as Jews and Communists. Because of the loss of relevance of these scapegoats through assimilation of Jews and the end of the Cold War, satanism—which nicely blends the theme of moral evil with the notion of attack from within—is a perfect scapegoat. Although Victor marshals some support for his explanation of the prevalence of beliefs in satanist conspiracies among fundamentalist Christians and their fellow travellers, he is not very convincing in his attempts to explain the diffusion of these beliefs into the professional community. Indeed, he seems somewhat perplexed about the strange alliance between mental health professionals (often spouting ersatz feminist rhetoric) and bible-thumping moral entrepreneurs. The book is divided into 15 chapters, the first 5 of which set the stage by describing “strange happenings” in the United States over the past two decades and the rise of the satanic cult legend. The nature of rumors and rumor-panics are explored. The next few chapters discuss specific manifestations of the satanic cult legend, tackling “ritual abuse” and “missing children,” “teenage satanism,” and the black comedic search for satanism in popular music, schoolbooks, and children’s games such as Dungeons and Dragons. Most of the material related to sexual abuse and missing children is covered in greater depth by Best (1990) and Nathan and Snedecker (1995), respectively, but the material on teenagers, popular music, and children’s games is new and excellent. Chapters 9–13 attempt to explain all of the foregoing by drawing from many currents of social scientific thought. The medieval origins of the demonology of witchcraft and satanism are recounted, emphasizing the consensus among historians that in actual fact, no cult of devil worship or witchery has ever existed in the Western world, excepting in the imaginations of anxious and vulnerable individuals. Finally, Victor attempts to draw all of the previous material together in a general view of the manner in which imaginary deviance may be created. As I said at the outset, this material is mesmerizing. However, the book has some serious flaws as a scientific work. Victor states in Chapter 1 that he has “deliberately avoided using unnecessary technical jargon and burdening the reader with the names of researchers and theories. Extensive notes are provided for
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interested readers” (p. 5). In fact, the reader is virtually deluged with theories— or, perhaps, more accurately, hypotheses—to explain the proliferation of belief among Americans (including many social scientists) in events that range from the thoroughly unlikely to the utterly impossible. Victor’s hypotheses, many of which are quite plausible, are nonetheless not derived in a coherent manner from clearly articulated theory. Whereas he might argue that the problem is multidetermined and thus one must use an interdisciplinary approach to explanation, Satanic Panic is really a patchwork quilt of behavioral science. Victor plucks theories from here, there, and everywhere, attempting to make sense of the senseless. Some of this scavenging is disappointingly superficial, and the empirical data cited to support several key points are feeble and largely correlational in nature. Among the theoretical strands Victor attempts to tie together are: social construction of social problems theory; “framing,” referent cognition, and relative deprivation theories from the social cognition literature; labeling theory; interactionist theory, and other sociology of deviance perspectives; Jungian psychoanalytic theory; anthropologic symbolic interactionism; folklore theory; Marxist sociology and conflict theory; and perhaps a few more. Whereas this makes for an entertaining and sometimes enlightening ride, it ultimately is not satisfying and one is still left to a certain degree mystified at how otherwise intelligent people can believe such a high order of nonsense. What this book needs is a dose of coherent theory. One such theory would be mimetics (cf. Lynch, 1996), the application of principles of evolutionary biology to the study of the proliferation and evolution of thoughts, beliefs, and ideas. Mimetics looks at how ideas (memes) acquire people, rather than the more traditional sociology or social psychology of how people acquire ideas. This kind of analysis could probably account in a more parsimonious manner for many of the phenomena to which Victor is compelled to apply so many diverse kinds of explanations. For example, Lynch recently used mimetics to explain the otherwise puzzling momentous growth of the Mormon religion, and this fusion of sociology, cognitive psychology, and evolutionary biology holds a great deal of promise for understanding social movements and shifts in scientific thought. In summary, despite its flaws, Satanic Panic is an important book. Those whose interest is purely in human sexuality issues should be warned that this material is slender. Those whose standards for reading are dependent on scientific rigor should be forewarned that the book is a social science free-for-all. I recommend reading it anyway. REFERENCES Best, J. (1990). Threatened Children: Rhetoric and Concern About Child-Victims, University of Chicago Press, Chicago. Loftus, E., and Ketcham, K. (1994). The Myth of Repressed Memory: False Memory and Allegations of Sexual Abuse, St. Martin’s Press, New York.
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Lynch, A. (1996). Thought Contagion, Basic Books, New York. Nathan, D., and Snedeker, M. (1995). Satan’s Silence: Ritual Abuse and the Making of a Modern American Witch Hunt, Basic Books, New York. Ofshe, R., and Watters, E. (1994). Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria, Charles Scribner’s Sons, New York. Okami, P. (1996). A triumph of scepticism: Nailing down the coffin of “ritual abuse” [Review of Satan’s Silence: Ritual Abuse and the Making of a Modern Witch Hunt]. J. Sex Res. 33: 164–166. Pendergrast, M. (1995). Victims of Memory: Incest Accusations and Shattered Lives, Upper Access, Hinnesberg, VT. Richardson, J. T., Best, J., and Bromley, D. G. (eds.) (1991). The Satanism Scare, Aldine de Gruyter, New York. Spector, M., and Kituse, J. I. (1977). Constructing Social Problems, Cummings, Menlo Park, CA.
Intimate Betrayal: Understanding and Responding to the Trauma of Acquaintance Rape. By Vernon R. Wiehe and Ann L. Richards. Sage Publications, Thousand Oaks, CA, 1995, 214 pp., $45.00 (hardback), $19.95 (paperback). Reviewed by Margaret S. Stockdale, Ph.D.4
Rape is an unspeakable crime no matter what its circumstances. Add to the fear and devastation of being violated and harmed in the most personal way, being raped by an acquaintance, friend, date, boyfriend, or spouse also means betrayal, confusion, disbelief, and guilt for the survivor. Acquaintance rape, therefore, should well be considered an equally if not more serious form of rape, requiring not only further research attention, but also specialized treatment and preventative interventions. Wiehe and Richards respond to this call by providing a comprehensive yet compact examination of this misunderstood atrocity. Intimate Betrayal was designed for readers who are likely to have direct involvement with either survivors of acquaintance rape (e.g., clergy, counsellors, criminal justice system personnel) or have responsibility for training and preventative efforts (e.g., personnel directors, student affairs personnel, teachers). The authors’ stated purpose is “to inform and to educate about the nature, scope and impact of acquaintance rape on its victims, how to intervene with those who have experienced the problem, and ways acquaintance rape can be prevented” (p. xi). In so doing, they provide an overview of the nature, scope, and theories of acquaintance rape, characteristics of the victim, perpetrator, the assault itself and its impact, and survivors’ responses. Two chapters written by outside authors provide specialized treatment of marital rape (Peacock) and the legal issues that have an impact on acquaintance rape litigation (Paquin). Finally, the authors review the factors affecting both the counsellor and the survivor for effective healing and recovery, and they review resources that can be used for preventative interventions at the individual, group, and societal level. 4 Department
of Psychology, Southern Illinois University, Carbondale, Illinois 62901-6502.
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A valuable feature of this book is the narrative voices of 278 survivors of acquaintance rape surveyed by the authors at rape crisis centers across the United States. Appropriately cautioned by the authors not to draw population inferences from this data, these voices punctuate the authors’ description of the nature of acquaintance rape gleaned from the research literature, its victims, perpetrators, and situational facilitators provided in the book’s first five chapters. In the best practice of qualitative research, these survey data provide “thick descriptive information” (Patton, 1990) by offering a poignant and somber reminder of the human tragedy behind the statistics and theories of acquaintance rape. The two externally authored chapters on marital rape and legal issues, although lengthier than other chapters, provide a thorough review of their respective domains (there is, however, some redundancy in the legal issues’ chapter on marital rape). Interestingly, the authors had not planned to cover marital rape in the book, but a significant proportion of the survey respondents described incidents of marital rape, calling for a chapter devoted particularly to this problem. Not only is marital rape often more violent than other forms of rape, but some states still do not legally recognize marital rape, or they find ways of limiting the circumstances in which marital rape is recognized. Paquin’s chapter on the legal aspects of acquaintance rape is an invaluable source for friends, counsellors, and advocates that may assist the survivor with a legal battle against her assailant. He reviews the complexities and battles that will inevitably come up in the legal process regarding “he said/she said” issues as well as sexually based misperception. He also walks the reader through the various stages of the legal process (e.g., filing charges with the police, undergoing a medical exam and collecting physical evidence, further investigations, arraignment of the accused, pretrial hearings, and so forth), citing research along the way that has dealt with problems and ambiguities faced at each of these stages. In addition to describing both the criminal and civil court routes that a victim may choose to seek redress, the author describes the limited but perhaps effective use of mediation as an alternative to court-based solutions. At first, I was appalled by the thought of resolving rape through mediation (“It is a crime that should be punished”), but Paquin brings up the point that victims may not want to go through the long and often painful process of a criminal or civil trial against the accused, and that a mediated settlement may offer an admission of guilt (on the part of the accused) and other benefits (e.g., restraining order, payment of medical/legal fees) that may not otherwise be forthcoming from a legal trial. The final three chapters deal with recovery and prevention issues. Although the authors recognize various forms of treatment philosophies, they advocate a feminist approach emphasizing the equalization of power between therapist and client and the grounding of sexual violence in patriarchal systems. I was especially pleased to see considerable attention paid to the role of therapists’ attitudes, beliefs, and potential prior abuse experiences that may have an impact on their ability to effectively counsel acquaintance rape survivors. The authors also pay much attention (perhaps to the point of redundancy) to client factors that have
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an impact on therapeutic processes. Because acquaintance rape involves, among other things, a profound betrayal of trust, establishing trust and security in a new intimate relationship (i.e., the counsellor–client relationship) is especially trying. In addition to outlining the various issues that have an impact on the recovery process, the authors review (and provide in appendices) several resources (e.g., films, training programs, instruments) that can be used in either recovery or preventative interventions. In summary, Intimate Betrayal is a well-conceived and expertly crafted guide for practitioners and laypersons who desire a good, basic understanding of acquaintance rape. Although it is not intended for a research audience directly, the authors draw on much of the best research in the field throughout the book. Intimate Betrayal serves not only as a good primer for the novice, but also as a useful reference guide for the seasoned professional who may want to draw on the book’s useful resources for understanding and effectively dealing with this insidious crime. REFERENCE Patton, M. Q. (1990). Qualitative Evaluation and Research Methods (2nd ed.), Sage Publications, Newbury Park, CA.
Remembering, Repeating, and Working Through Childhood Trauma: The Psychodynamics of Recovered Memories, Multiple Personality, Ritual Abuse, Incest, Molest, and Abduction. By Lawrence E. Hedges. Jason Aronson, Northvale, NJ, 1994, 312 pp., $50.00. Reviewed by Mark F. Schwartz, Sc.D.5
On my desk, there are approximately 200 copies of references on traumatic experiences and memory. As a practicing psychotherapist, I have felt a clinical and ethical obligation to study the empirical literature. None of these core references are cited in this provocatively titled text, yet the author has no difficulty making dogmatic conclusions, such as “no seasoned psychoanalyst ever assumes any memory, no matter how vivid or seemingly true it must seem, is a historical fact” (p. 17). It is “sheer folly to attribute the status of historical or legal fact” from information gained in psychotherapy. According to Hedges, this folly is made by therapists lacking “skill, systematic training and seasoning” in response to the “blackmail quality of demanding patients” who “molest” unsuspecting therapists to “violate their personal and professional boundaries” by coercing them into believing their stories. 5 Masters
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Such dogmatic assertions fascinate me because they are based on theory, without reviewing the complex and controversial database, and yet purport to definitively guide therapists, clients, and researchers in yet another round of ersatz controversy. Freud attempted to distinguish traumatic memory from developmental psychopathology and thought he could distinguish the two. It is likely that they are interwoven and that some memory is state-dependent and the result of overwhelming events, interacting with neglect, abuse, and development sequential psychopathology. From 50% to 90% of individuals with chronic posttraumatic stress disorder meet the criteria of another psychiatric illness. Therefore, it is likely that overwhelming stressors are not uncommon in psychiatric histories.Why would anyone want to discuss made-up memories with a therapist? What if what they remembered was true, and the therapist was not being “molested”? What if, worse yet, the therapist was professionally “guided” to disbelieve the client? Would that not make someone feel crazy? Yes, “analysis considers memories as representations of actual events and more as creative dreaming that represents transference and resistance themes in the analytic relationship.” That’s in Freud 101, but what if Freud’s theories have led analysts to turn a blind eye to the grim reality that there are 12.1 million adult women raped, 500,000 high school girls molested before they graduate, and 69% of American women who have experienced at least one traumatic event (Resick and Schnicke, 1993)? Such theory has resulted in large numbers of clients seeking help from caregivers who think, as one expert has stated, that “women are angry paranoids, as are their therapists who have found that men can serve as useful targets for their hostility” (Gardner, 1993). The emerging developmental psychopathology literature is clearly documenting that attachment with caregivers within the first 2 years of life is highly predictive of subsequent social, learning, and cognitive development. No one really believes that memories are facts. They are reconstituted from age-specific perceived events sometimes rearranged by time. But America’s horrific domestic violence will be unacknowledged by yet another generation of “seasoned, well-trained” analysts. That is the first 53 pages of the book! The author then goes on to a variety of topics—from a discussion of his style of listening to multiple personality clients, his rage at ethical and licensing boards for their “witch hunts” regarding dual relationships, and finally, identifying and working through “organizing transferences.” These subsequent chapters are clinically useful and are obviously a synthesis from a gifted clinician. REFERENCES Gardner, R. (1993, September). Issues in child abuse accusation report in the Shadow of a Doubt. Family Therapy Networker. Resick, P., A., and Schnicke, M. K. (1993). Cognitive Processing Therapy for Rape Victims: A Treatment Manual, Sage Publications, Newbury Park, CA.
