Regent's Center for Global Justice, Human Rights, and the Rule of Law hosted the symposium on Human Rights and the Sexualization of Culture, where panels discussed theories of sexual autonomy, issues surrounding prostitution legalization, and all these matters in the context of children, premised on the notion that as the law increases sexual autonomy rights for adults, children get caught in the cross hairs of those decisions by being forced into sex trafficking, or being treated as property of an adult. Scholars from all over the country came together to discuss these important issues.
The law in the United States solves these problems with a best interest of the child standard, but the international community seeks to do so with a children's rights framework. I have written about these positions and their development in Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J. L. Fam. Stud. 337(2008), also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957143. Furthermore, I have also discussed the problem that children's rights do not protect children in my piece entitled Suffer the Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. Int'l. L. Rev. 57 (Summer 2009), also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1962681.
These two didactic perspectives, children's rights versus children's best interests, were helpful in answering the questions at the Symposium by either considering children as rights holders and independent actors, or perceiving children as legally incapacitated deserving of protection and provision from adults. As an example, consider the public policy over pedophilia. It seems logical that if children are viewed as property, they can be treated as sexualized objects as well. The legalization of pedophilia is already clear in some parts of the world, e.g. Iraqi law allows for a girl to marry at age 9 (see http://rudaw.net/english/middleeast/iraq/100320141). When pedophilia is viewed as a sexual orientation, children are also viewed as sexual beings. (See http://latimesblogs.latimes.com/lanow/2013/01/many-experts-now-view-pedophilia-as-a-sexual-orientation-google-hangout.html). Viewing children as sexual beings might foster a children's rights perspective that would include a child's right to express sexuality; and this in turn advances the view that children have the right to consent to sex, and to consent to sex with adults, and to determine their gender identity, or submit their innocence to numerous types of things that might not be the best for them as children. (See http://www.theblaze.com/stories/2011/08/24/after-hhs-says-children-are-sexual-beings-psychologists-push-to-decriminalize-pedophilia/). This line of thinking can be developed in the sex education process as part of a child's right. On the other hand, a best interests approach would work to allow parents, and the state if the parents abrogate that duty, to protect the child from sexual manipulation by any adult.
Does the framework for children's rights advance the thinking of children as a commodity? And if so, why? It does so because it leaves children to protect their own rights – with no one to advance those rights for them but adults upon whom they must rely most, while removing the protections offered to the child under a best interests framework. The best solution is to apply the best interests framework for a child's protection and provision. And when parents do not protect their own children, the state has a rationally related legitimate interest in a child's welfare and best interests. A best interests approach accomplishes what a rights approach cannot.
Children ought never to be perceived or used as property, and rights do not protect them from that end. Rather, rights tend to advance the sexualization of children, and their treatment as mere pieces of property. Likewise, when sexual autonomy rights of adults in procreating children create conflicting scenarios for the resulting children, those problems are not well-solved by a children's rights framework either. As the law increases recognition of sexual autonomy rights for adults, children are inevitably harmed. The solution is to understand that parents have duties to protect the child's interests particularly when exercising their sexual autonomy, and when parents do not act accordingly the state can intervene for the child's best interests.
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