Intro: After his release from four months in jail for alleged pedophilia–a charge that was found later to be fraudulent–Dr. Gavin Scott wrote this commentary about age-of-consent and it manipulation by foreign NGOs (non-governmental organizations) in the fractured legal system in Cambodia.
Sex is something we are all interested in, whether it be performing or talking. Media stories about sex sell, and stories about underage sex sell even more but what exactly are the motives of the people putting out such stories, and how accurate are they? By manipulating words and figures minor problems can be presented as issues of far greater magnitude. A review then of the building blocks that make up such stories is essential before conclusions can be made.
What is a Child, and what is a Minor?
A child is a term defined by cultural, medical and social usage, whereas a minor is a term defined by law meaning ‘under full legal age’. The words child and minor are not interchangeable as they have different meanings. Sex with a minor – underage sex – is not necessarily child sex; for example, an adult male homosexual of 20 in Western Australia is considered a minor; conversely, until recently, a Sri Lankan female child of 12 was not considered a minor.
From doctors to dictionaries it becomes clear that children are consistently perceived and defined as persons below the age of 14 years: ‘a child is 0 -14 years’ (Royal College of Physicians UK); in terms of response to drugs a child is 0 -12 years (BNF), 0 -15 years (Pharmaceutical companies) – an adult dosage applies to 16 years and above; ‘a young person of either sex before puberty’ (Oxford Reference Dictionary). Most businesses – airlines, hotels, restaurants, cinemas, trains etc. – refer to children as under 12 -14.
Most societies around the world regard puberty as the time at which a child becomes an adult, albeit a young adult; in neighbouring Thailand on a youth’s 12th birthday, parents will perform the Phiti Kon Juk, during which they shave off their child’s top knot and recognise them as a young responsible adult. Similarly, as the National Geographic (October 1964 edition) wrote, ‘(in Cambodia) when the child reaches puberty, at a time set by the astrologer, the lock is cut by the achar and the monks. The child officially becomes an adult’. At the killing fields monument at Choeung Ek a sign reads ‘Juvenile male Kampuchean from 15 to 20 years’.
For immigration purposes a child is under 16 (International Organisation for Migration). Even the United Nations uses similar ages – but more about the UN later!
What is Abuse and what is Paedophilia?
‘A person is considered to be abused if he or she is treated in a way that is unacceptable in a given culture at a given time’. The key word here is ‘culture’. When foreign Christian NGOs complain that Cambodian society does not consider consentual sex with a 14 year-old girl abuse they display crass cultural insensitivity exacerbated by their avowed determination to ‘educate’ the Khmers and inculcate Christian values in Buddhists.
Paedophilia is ‘a preference for repetitive sexual activity with pre-pubertal children’ (medical definition), and paedophiles are ‘those who are primarily sexually attracted to pre-pubescent children’ (World Congress Against Commercial Sexual Exploitation of Children, Stockholm 1996).
What are the legal ages of consent for sex around the world?
In the majority of European countries the age of consent is set at 14-16 years of age.
=14 years in Austria, Bulgaria, Canada, Croatia, Estonia, Hungary, Italy, Liechtenstein, Russia, Slovenia & Yugoslavia.
=15 years in the Czech Republic, Denmark, Greece & Slovakia.
=16 years in Australia (NSW, Victoria, West Australia), Belgium, Finland, France, Iceland, Latvia, Luxemberg, Netherlands, New Zealand, Norway, Portugal, Spain, Switzerland, Ukraine & the UK.
Most, if not all, have ratified the UN Convention on the Rights of the Child, but have decided that the above ages, and not 18, are the ages of majority (this is consistent with the convention – see explanation later). These independent countries made these decisions on sound legal and medical grounds; they recognised that many persons start sexual relations at an early age, and to criminalise such behaviour would be harmful; lawmakers recognise that a law that is unenforceable is a bad law (such as prohibition in 1920s America); furthermore they acknowledged that ‘peoples sexuality was well formed by the age of 16’ (European Court and British Medical Association).
It is therefore unacceptable that NGOs from the above countries, who have no mandate to, or hope of, changing the laws in their own countries, come to Cambodia which is vulnerable to media pressure and NGO power politics, and try to change Cambodian laws. It is no secret that Thailand was forced to increase the age of consent from 15 to 18 under American pressure following misleading media stories about prostitution; that a sovereign country is deliberately embarrassed by NGOs and then forced by economic blackmail to change a domestic law is nothing short of imperialism, and the imposition of American cultural values.
The United Nations and UN Conventions
As Madeleine Bunting recently wrote in the Guardian Weekly: ‘ …UN conventions.…are a modern version of the Beatitudes, our vision of the Kingdom of God. It’s no accident that many UN secretaries-general have been deeply religious….’. The charge of hypocrisy is levelled at the UN, just as it is at any other faith-based organization. This opens up the vexed relationship between idealism and reality.’ There are over 500 UN conventions and it is reasonable to say that every day some article in some convention in some country is violated by someone in some government or some NGO. It is important to reiterate the point therefore that a UN convention is a set of ideals largely framed by the religious beliefs of its makers.
The USA is the main funder of the UN, and as a consequence there are many who regard the UN as a rubber stamp for US foreign policy ambitions. At a more local level, those who believe that USAID fund certain NGOs in Cambodia for purely humanitarian reasons are to say the least somewhat naive. Ironically, when it comes to being bound by UN Treaties or the International Criminal Court, exceptions rather than acceptance seem to be the rule for the US.
The age 18, as mentioned in the UN convention on the Rights of the Child, is nothing more than a reflection of American influence, since 18 is the age of consent in most American states.
In signing a convention a country promises to aim towards fulfilling those ideals listed in a convention; ratification is a legal step whereby a country has passed a relevant domestic law with penalties so that the set of ideals can be enforced.
Charging or convicting any person with violating any UN convention lacks legal grounds as UN conventions are not penal laws with penalties. Persons can only be prosecuted for contravening a relevant domestic law with penalties applicable to that convention.
Although the UN inserted into the 1993 Cambodian constitution Articles 31 and 48 which obliges Cambodia to ‘recognise and respect‘ UN conventions relating to human rights, women and children, it was during the UNTAC period that many women and children were consistently abused and raped by UN personnel who enjoyed impunity sanctioned by the head of mission who said ‘boys will be boys’. Like its mentor the US, rules, laws and conventions made for other people do not always apply to the UN.
The Cambodian constitution is similar to a UN convention – simply a set of rules, and thus no one can be prosecuted for violating an article in the constitution unless a penal law has been made in the National Assembly that specifies that such a violation is a crime, and such a crime has specific penalties.
Interestingly, UN agencies frequently ignore the details of their own UN conventions; it tells us a lot about how agency staff really define a child. UNICEF regards a ‘child as under 15’ and ‘an adult female is 15 years and above’ (UNICEF in Cambodia 1992 booklet). Most International Labour Organisation conventions refer to children under 15; indeed ILO recently stated that it wants Cambodia to ratify 2 conventions requiring the minimum age of work to be 15, although for sexual matters an ILO spokesperson argued that sexual exploitation below 18 should be considered a crime (confirming of course that sex with 15-18 year-olds is not presently a crime).
The UN Population Fund has performed several demographic surveys of Cambodia and they classify a child as 0-14 years, and a young person as 15-24 years. Likewise the WHO refers to adults as aged 15 and above in their statistics.
Cambodian Law on Sexual Matters
The UN Convention on the Rights of the Child (1989) Part 1, Article 1 states ‘for the purposes of the present convention, a child means every human being below the age of 18, unless under the law applicable to the child majority is attained earlier’.
There is some confusion about whether Cambodia has ratified this convention – certainly the NGO Committee on the Rights of the Child (made up of 23 NGOs) feel it hasn’t (Cambodia Daily, Nov 18 1999) and wants the government to do so. UNICEF, however, thinks ratification took place on 15 October 1992.
The domestic law with penalties that is applicable, and the only law that is currently being used in underage sexual offences, is the Debauchery Law (1996); Article 8 specifies sex with minors under 15 is illegal and punishable.
Although in Cambodia ‘there is no legally established age for sexual consent’ (UN Report on Human Rights, August 1996, Section III A39), the fact that the Debauchery Law, nor any other Cambodian domestic law specifies any penalties for sex with persons age 15 and above, it can be deduced that the de facto age of consent is 15. Prosecutions for sex with a 15 year-old are not possible under Article 42 of the UNTAC Law (1992) which refers to minors as under 16; this is because when two laws conflict, the most recent law prevails as stated in fact in Article 10 of the Debauchery Law.
NGOs by asking for the age of consent to be raised from 15 to 18 are of course admitting that sex with those above 15 is not illegal; indeed the Cambodian Women’s Development Association, a member of ECPAT, produced in 1996 an Appendix: The Law of Cambodia in which the ages 15 and 16 were the only ones mentioned in the two laws.
As Cambodia has determined that at age 15 majority is reached, then according to the above UN convention a child is a person under 15 and not 18. Cambodia is in compliance with this convention.
(N.B. majority can be attained at different ages for different purposes, e.g. majority for sexual purposes at 15, majority for voting at 18, and majority for being elected an MP at 25, majority for marriage purposes, and so on).
Sex and Cambodian Culture
In one study 87% of Cambodian young men surveyed were sexually active, and as in Thailand, the first sexual experience is often with a prostitute. As prostitution is regarded as the world’s oldest profession and thrives in every culture providing a necessary biological function in any society, then it is not insulting to Cambodia to say that prostitution is part of Cambodian culture. Although there are no accurate or updated statistics, some estimate there are 15,000 female sex workers, of whom up to 2,000 are ‘underage’.
Homosexuality is tolerated and even accepted in Cambodian society, although discretion is advised, and Cambodian homosexuals are expected to marry. Some 10% of young Cambodian men have sex with other men, including a few government ministers.
The King has, in reference to a foreigner involved with boys aged 15 and above, made the point that he did not see such action as a crime. Cambodians correctly perceive homosexuality as one part of a continuous spectrum of sexual activity and not in any way a crime.
Such tolerance towards matters sexual is anathema to the foreign Christian NGOs and their local subsidiaries and spokespersons; in their fundamentalist mindset sex outside marriage, which equates as sex for pleasure, is a sin and homosexuality is regarded as the biggest sin of all as this sexual activity lacks any possibility of procreation, and therefore represents nothing but hedonism.
Child abuse mostly occurs in the home, something that we professionals have known for years, and yet NGOs, through the media, invest heavily in the menace of the stranger – the foreigner.
Probably 90% of child sex involves Cambodian men with Cambodian children, although I know of one anecdotal story in which a Cambodian woman would ‘borrow’ boys from an NGO orphanage–an event that apparently forced the NGO to move house. (Interestingly, in one tourist city in Vietnam 75% of known cases of sexual abuse involved foreign women.)
In Cambodia when foreigners are involved in underage sex, the nationalities are predominantly Asian, particularly Chinese and Japanese. The ‘Western male paedophile’ preying on Cambodian children is thus largely a myth created by Western media. A more recent media creation is the ‘sex tourist’ (more of a problem than the ‘alcohol tourist’)? Prompted by NGOs such stories act as excuses for politicians to appear concerned and an excuse to avoid action on the real issues.
The truth is that it is probably far more difficult to find a politician ‘appalled’ and ‘horrified’ by poverty – the real cause of prostitution – than it is to find one who ‘will keep sex tourists out of Cambodia’. ‘Politician vows to fight poverty’ doesn’t make quite such a lurid headline.
NGOs say ‘sex tourism in Cambodia is increasing’ without any objective statistics to back up such a statement. It is also a misleading statement. Since 1997 the number of tourists has increased – accordingly, so has the number of sex tourists. However, statisticians when looking to see if a problem has become more common, look at the incidence – in this case it would be the percentage of all tourists that sex tourists represent. There is no evidence that this percentage has increased.
Lists, Blacklists and yet more Lists
In 1995, NGOs first started making lists; acting then as policemen, they took it upon themselves to ‘investigate’ foreigners having sex with Khmers compiling one list predominantly of homosexuals, in tandem with an impunity list of paedophiles working for NGOs and their supporters who were to be exempt from investigation. Five years later, we now have NGOs acting as judges making up more lists – ‘blacklists’.
Ironically, Cambodia is partly in this judicial mess because of the example NGOs set in 1995. What exactly is the moral difference between corrupt NGOs altering statements and fabricating evidence to get an innocent into prison, and corrupt judges altering statements and ignoring evidence to let guilty persons out of jail? Allowing NGOs to get away with illegal acts eventually harms us all in one way or another.
Others have already pointed out the constitutional illegality of such blacklists, but the selective application of human rights as proposed by certain NGOs (which is nothing new) supports the belief that these NGOs pay lip service only to the whole idea of human rights. Human rights to them mean imposing their views on others.
If an NGO committee is to investigate those suspiciously acquitted and released by the courts – can we assume for the sake of human rights – that they will similarly investigate those wrongly convicted and imprisoned by the same corrupt judicial system?
To protest about the release of two foreign paedophiles is correct and justified – clearly the judicial system needs fixing; to use this, though, as a pretext to launch yet another moralistic crusade and compile lists of, lets face it, ‘enemies of (the NGO) state’ is wrong.
How will raising the age of consent help, except to make the blacklist longer? Ministers who support such a raising will of course find themselves in a very embarrassing position – on which list will the Minister who married a 16 year-old, and the Secretary of State who had a 15 year-old mistress be put – the ‘sex criminal list’, the ‘sex resident list’ or the ‘impunity list’?
NGOs already have too much power, something the government will eventually regret. This power includes unspoken intimidation. Several expatriate lawyers and others agree that there is no rule of law in Cambodia and that the NGOs are a law unto themselves – but would never go public for the very real fear of jeopardising their jobs or income. Labelling anyone who doesn’t agree with their views on sex as a paedophile is a weapon NGOs use to prevent contrary opinions and reasoned debate on such issues. NGOs have taken advantage of the fact that most officials in the Ministries of Interior and Justice have little relevant education in police and legal matters, and implant moral opinions in the guise of erroneous legal facts.
Who advised the contents of the posters recently displayed outside hotels that read ‘sexual exploitation of children under 18 is a crime’ and ‘punishment 10-20 years’? It is wrong on three counts; children are under 15, sex with young adults under 18 is not illegal, and the punishment specified is for sex under 15.
It would appear that in their arrogance, the NGOs have jumped the gun. There is strong suspicion also that NGOs have been advising that homosexuality is a crime; certainly police harassment of foreign homosexuals involved with young adults has become apparent. Discrimination on the grounds of sexual orientation is a violation of human rights and should hardly be promoted by NGOs particularly when homophobia is not a feature of Cambodian society.
Throughout history Jews, homosexuals and communists have all been legitimate targets of hate campaigns; lists were made for the gas chamber and lists were made for the Committee on Un-American activities. Paedophiles are currently the group Western society needs for its righteous hate, but there is no doubt that some NGOs regard homosexuals and paedophiles as one and the same.
There is something deeply disturbing that a religious group preaches such bigotry and hatred bordering on the violent (witness calls for the death penalty in Christian Philippines). In Dan Jacobson’s book about the Bible, he wrote of the Old Testament prophets: ’the conviction that one is speaking on the side of virtue can licence an indulgence in fantasies that virtue itself would ordinarily compel one to foreswear’.
=The majority view children as persons pre-pubertal and/or below age 14. The most common age worldwide at which sexual consent can be given is between 14 and 16. There are no logical, biological, legal or medical reasons to have an age of consent higher; proponents of a higher age do so for religious or moral reasons.
=The UN Convention on the Rights of the Child allows countries to set the age of majority for sexual consent at any age, and Cambodia has set it at 15 years of age. Sex between ages 15 and 18 is not illegal in Cambodia.
=The majority of child abuse occurs in the home and most paedophiles are heterosexual Cambodians abusing Cambodian children. NGOs represent a minority Christian-based value system. The media sensationalise stories about sex, the contents of which are inaccurate and misleading. NGOs obsessive fixation on teenage consentual sex and the ‘scapegoating’ of foreigners is a reflection of their failure to have any impact on the major problems of poverty, child abuse in the home, forced prostitution and human trafficking.
=Furthermore, it is an admission that the former issues rather than the latter bring in the publicity, the funding, the cudos, the power and the fulfilment of religious mission which NGOs seek above all. By confirming the age 15 as the age of majority for sexual purposes the Cambodian government could at one stroke put an end to the negative images of Cambodia portrayed in the media, and at the same time force NGOs to concentrate on the real issues.