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Let's grow up and accept the reality of teenage sex

The law can be a very blunt instrument. Less than a generation ago, it was a criminal offence for consenting adults to engage in homosexual acts in private, and it took a lonely and at times heroic battle by David Norris to get that changed.

But we are still struggling in the area of sexual and other rights for what are equivocally referred to as "young people". Until recently, although an 18-year-old man could be called up to kill or be killed for his country, he could not vote, nor could he engage in sexual congress with a 17-year-old girlfriend. (He got the right to vote before his love-making was decriminalised.)

When the voting age was reduced to 18, the possibility that sons and daughters might think for themselves was dismissed; the view was: "They'll do what they're told. Sure, aren't they children?"

They weren't then; and they aren't now. They're adults. When they're 30, they will be more mature adults. Many of them, of course, may still be very immature at 30, and even beyond. And the immaturity may stem from having all their decisions made for them during their teen years, without their being given a right to their own opinions or expected to take responsibility for their actions.

We're still trying to pretend that teenagers are children when it comes to sexual activity (and in some other areas). The argument is that sex education and access to contraception will lead to "promiscuity". Truth: surging hormones lead to promiscuity; sex education leads to common sense, and contraception prevents disease and unwanted pregnancies.

A statutory legal age is a necessary blunt instrument. But if underage-sex cases come to court, judges usually have sense: they regard boy-and-girlfriend consensual romances leniently, but take a much more serious view of a father or teacher seducing a young person.

Underlying the statutory age is the hope that young men and women in their teens mature gradually over the years from puberty, and learn responsibility. But they will only do that if they are given information and education, and are respected by the law and society in the way the law and society expect them to respect each other.

In 2007, Mr Justice McKechnie, presiding over the "D" case, involving a 17-year-old asserting her right to travel to terminate a pregnancy, called her a "person of maturity, courage, dignity and integrity". That case was quoted by the Law Reform Commission in 2009, when it produced a report recommending legislation which would allow a 16- or 17-year-old who is fully mentally aware the right to refuse medical treatment even if refusing could cost them their lives (subject to certain conditions and consultations with healthcare professionals).

It also recommended that they could have access, in confidence, to medical treatment, including contraception. There was a fair amount of muted furious response to that report, the National Parents' Council being the first to express doubts, even about unquestioning access to contraception, much less about the right to consent to, or refuse medical treatment.

The Commission is chaired by emeritus Supreme Court Judge Catherine McGuinness, the woman who handled the Kilkenny Incest Case report all those years ago. She is a jurist of impeccable integrity and compassion.

So in 2009 the Law Reform Commission sighed deeply, and went back to consult further. Now it has produced another report of recommendations. It still suggests that teenagers aged 16 and 17 should be allowed to consent to or decline healthcare and treatment, including contraceptive advice and psychiatric treatment, on the same basis as those over the age of 18.

Howls of outrage can be expected from some circles, calling this a demonisation of the family and an attack on parental rights. Except that the report also specifies that the family is the fundamental unit of society. It merely implies that young men and women in their late teens are not the property and chattels of their parents, and have independent rights. It does not imply that all young men and women of 16 and 17 are fully mature adults. It merely emphasises the "evolving" nature of maturity and says that "young persons" have the capacity to make judgements about their own health and wellbeing.

In fact, the report specifies that in a case where a person under the age of 18 refuses life-sustaining treatment, an application to the High Court would be required to decide on the validity of the refusal. Exactly the situation that is currently allowed when the guardians of someone deemed to be legally adult, but incapacitated, disagree with their wish to be allowed to die.

Of course we have to ensure that decisions to refuse life-saving medical care are not taken lightly or immaturely. We already live in a society which faces the daily tragedy of young men and women deciding for what seem to older people to be pointless, even minor reasons that they cannot go on living, and take their own lives.

The law must be there to protect from themselves those who actually do have excellent reasons for wanting to opt for death: the horror of a long drawn-out illness of pain, discomfort and physical indignity. But what seems intolerable at 17 can become an acceptable lifestyle, however compromised, at 30. Of course, we must ensure that a 17-year- old, faced with a life of incontinence strapped in a wheelchair and who wants to refuse the medical care, cannot decide lightly or on a whim to die. It has to be a mature and considered decision. But how dare we insult the human ability to know its capacity for endurance by suggesting that young adults are universally incapable of deep thought, profound judgement, and responsible decision?

Two years ago, this profound implication in the recommendations of the Law Reform Commission got lost in twittering niceties about the "irresponsibility" of teenage sex. Let's hope that the current report results in the acceptance of the reality of teenage sexual activity by providing a universally blanket safe-sex approach. Then we can concentrate on the profound implications of the level of maturity required to make a decision to die.

Sunday Independent