Opinion: Children Cannot Consent

Children cannot give consent to so many things under the law.

Whether it’s when someone rapes children, when children get medical treatment, or when children escape violence, their stories are framed as if they can give consent. We see this with the Jeffrey Epstein case, with medical deferments of deportation, and with asylum cases. This article barely scratches the surface.

Today’s children live with active shooter drills, poverty shaming, the reality of climate change and an exhausting list of other things that even the most aware and precocious children of my generation never knew existed.

Tragically, child rape is nothing new. But we had a moment of hope when the law and our collective morality recognized that there is no such thing as a minor-aged woman. That is a child. There is no such thing as voluntary sex with a child. Anyone who has sexual relations with a child is raping that child.

Then came Jeffrey Epstein and his one-time friend, Donald J. Trump.
Enablers and apologists for Jeffrey Epstein continue to violate Epstein’s victims. They suggest the children consented to “sex” with Epstein and his circle of perverts. Some have gone so far as to suggest the girls Epstein and his friends raped were prostitutes.

Most recently, a prominent computer scientist at MIT defended Epstein by saying his child victims were “entirely” willing. I fumed while reading that story, because it, and others like it, violated Epstein’s victims again. The wall of white privilege shielded Epstein from justice. He got a slap on the wrist for raping children. Their rights were violated in the sweetheart deal Epstein got from his friends in high places. I tweeted the story, simply stating “Children Cannot Consent.”

Thanks to Miami Herald reporter Julia Brown’s stellar work and persistence, it looked like Epstein’s victims would have their day in court. But it wasn’t meant to be.

As I write, there are children who are terminally ill and receiving life-saving medical treatment in America that they can’t get in their home countries. The Trump administration told them to get out of the country by September 14th.

After the backlash, there was a partial step back.  Some of the people who were denied medical deferment were told their cases were re-opened.   No one knows what that means.  That includes the kids, their families, their lawyers, their representatives in congress and it appears, even the people who will be playing God with their lives.

These are children who came to America legally, and in some cases, like with  Isabel Maria Bueso, by invitation  from the government.

The House Judiciary subcommittee on the Constitution, Civil Rights and Civil Liberties, chaired by Representative Steve Cohen, held an emergency hearing last week.

Isabel Maria Bueso  and several other people with deadly illnesses appeared before the committee to literally beg for their lives. No one should have to beg the government to let them live. Yet, 24-year-old Bueso begged for her life.

Sixteen- year-old Jonathan Sanchez,  who has cystic fibrosis, also begged for his life. Fourteen-year-old year old Serena Badia  from Spain put it as squarely as it gets when she said she knew she had to fight for her life in the hospital. She didn’t think she would have to do it before a government committee.

Isabel was 10 years old at the time the government asked her to come to America to participate in studies about the rare and deadly illness she has. As a direct result of the studies she participated in, Americans with the same illness are getting the life-saving medical treatment they need and deserve.

The treatment that keeps Jonathan alive doesn’t exist in his home country. Jonathan told the committee that if he is sent back to Honduras, he will die. He told them about the fact that he cried, that he wants to live. Imagine being sixteen and not only aware of your own mortality but having to say it out loud and in a public forum.

Serena would love to return to Barcelona, however, she remains in the United States under doctor’s orders because her health is so frail.

Isabel was invited by our government. Legally speaking, that invitation was accepted by her parents, because at age 10, Isabel was too young to give her legal consent.

As a secondary factor, I’d say also there is something Mengelesque about bringing children here to conduct medical experiments on them, then disposing of them as if they were used test tubes. The same lack of consent problem is present with Jonathan and Serena. They could not give consent even though their lives depend on it.

The urgency and sheer cruelty of the situation was not lost on Representative Jamie Raskin, the committee vice-chair, as reflected in his opening statement , nor on any of the Democratic members of the committee.

But the first question a Republican asked was about the dangers of open borders. He asked it of someone who could not consent (or object) to her arrival in America. He asked it of someone who was being unceremoniously thrown out, because, as one ICE official  rationalized it, medical deferment is subject to abuse.

In a memo obtained by Politico, USCIS Policy and Strategy chief Kathy Nuebel Kovarik, actually wrote:

“USCIS strongly believes that the exercise of deferred action is subject to abuse, and if we continue to accept such requests, even with narrow medical criteria, we will be creating a de facto ‘program’ of criteria … which are not enumerated in statute or regulations.”

Cruelty is absolutely the point of the Trump administration’s approach to immigration – whether the person in question is sick, seeking asylum, a baby or a young child. Its policies make it possible to rip babies out of their mother’s arms, put babies, a.k.a. “children of tender age,” in cages at for-profit prisons that have the appearance and character of concentration camps.

A report  by Donald Trump’s hand-picked Inspector-General spoke of traumatized, almost catatonic children who were malnourished and deprived of basics like toothpaste and soap. The report spoke of the over-crowding and prolonged detention one associates with the phrase, concentration camp.

Children were told to drink water from the toilet – something that Republican Steve King  mocked by drinking from a concentration camp toilet himself. No doubt that toilet was clean and functioning, unlike the ones that these children have to live with.

These children cannot and did not consent to living like animals only because their parents, like all decent parents, sought a chance for their children to survive childhood.

We’re demanding something we have no right to demand of children. We’re telling them to endure things that would be traumatizing for the most mature, well-adjusted adult, even if they are in a position to consent or object.

The children affected by the Trump’s administration’s cruel position on medical deferment will die if sent back to their home countries because the treatment that, in some cases, they helped make possible for Americans isn’t available there.

The inhumanity and immorality of this policy should be evident.

The now young women who could not consent to rape, but were as children raped by Epstein and his friends, will forever live with the scars of rape, along with the trauma of being denied justice twice, followed by the pain that goes with prominent, privileged men telling everyone who will listen that they wanted it.

Children seeking asylum didn’t consent to the horrors that happened in their home countries. They didn’t consent to leaving. I seriously doubt that Trump and anyone passing judgement on these children ever challenged their own parents on anything. But the people doing the judging somehow expect toddlers and young children to defy their own parents, parents who want nothing less than to save their children’s lives.

We can point to countless other examples of the ways by which children cannot consent. They can’t enter contracts, vote or get loans. And yet, we treat children as if they are adults with short legs.

Child migrants are expected to defend themselves in court, in a language they don’t speak, and where they often have no idea what’s going on. I studied law in what eventually became my second language. But it was in a protected setting. The worst that could happen was that I might fail a course. For the children appearing in immigration court, the consequence is deportation, which can in some cases mean death.

There are so many things that children experience in Trump’s America that most adults are ill-equipped to deal with. Bullying is up, especially for children who don’t fit the MAGA prototype. That means trauma. Children separated from parents and put in cages means more trauma. Children who are raped face trauma. When there would be decades of fighting for justice, only for it to be denied, they are facing layers of trauma.

Instead of doing what we can to stop the trauma, and provide treatment to children already traumatized, the Trump administration imposes more trauma. The experts warned us about the effects of untreated and enduring trauma. Trump decided. Epstein decided. Parents with the best intentions for their children decided.

None of these children consented.