Spotlighting Research - Sexuality Education and International Standards: Insisting Upon Children's Rights

19 Jan 2021

In this series, we spotlight exciting and impactful research currently being undertaken at the UCC School of Law. We also showcase the researchers themselves – academic staff at the School, who produce cutting-edge legal scholarship independently or through our research centres

In this edition, we are shining the spotlight on two colleagues – Dr Aoife Daly and Dr Catherine O’Sullivan, who recently jointly published an article entitled Sexuality Education and International Standards: Insisting Upon Children's Rights in Human Rights Quarterly.

Aoife and Catherine talk us through the article, how their collaboration came about, and explain how it ties into other themes in their research below.

What is this article about?

This journal article is about making a shift in international law from seeing sex education (i.e. education about sex and relationships) as not just a state discretion which is good for public health, but as a right of children themselves.

Occasionally the issue has come before international and regional courts (e.g. the European Court of Human Rights), usually where parents are resisting the provision of sex education to their children via school systems. Courts weigh the public benefits of this education against parental rights to refuse it. Courts usually find that as long as parents can withdraw their children from sex education lessons, states have discretion to provide such lessons.

This article seeks to draw attention to the fact that, according to this logic, knowledge about their bodies and about relationships can therefore be denied to some children. It also implies that states can provide such education or not, rather than emphasising that there is a right of children to know these things under for example the UN Convention on the Rights of the Child. Although parents should play the primary role here, states must also have some role in this, as some parents will not follow through in teaching their children about sex and relationships.

We emphasise that age-appropriate sex education is, amongst other things, necessary for children to understand relationships and what is and is not acceptable. This will help them to expect good relationships and to know what exploitation or abuse looks like. Without it they are left unprotected - knowledge is power. Also, in an age where children get much of their ‘education’ from online pornography, norms have shifted and it is crucial that children are taught what positive and negative relationships look like. This is why we need to re-focus attention away from state and parent, and onto children as rights holders.

Where did the idea to write it (and collaborate on it together) come from?

Aoife: Catherine and I met at the very excellent 2018 UCC Workshop on Frontier Research in Children’s Rights and Family Law at the School of Law when I was lecturing at the University of Liverpool. Catherine and I were both working on sex education as a right from different perspectives – criminal law (Catherine) and international human rights law (me). Catherine then received a Visiting International Research Fellow grant from the University of Liverpool’s School of Law to come to Liverpool for us to write this piece together.

Catherine: When we met at the Workshop, we realised that our shared understanding that sexuality education is necessary to protect and empower young people and our shared belief that it should be recognised as a right of the child to access this information combined with our different areas of expertise would allow us to make the argument for a child’s right to access sexuality education as strongly as possible. 

Who did you write it for?

We wrote it for many audiences, including the international human rights law community, to emphasise that children as individuals should be seen as having a right to sex education – so often it is framed as parents and states (often in conflict in relevant cases) as the sole actors. This piece seeks to shift the discourse for academics and others into the arena of children’s rights.

How does this tie to other themes in your research?

Aoife: I write a lot about children’s autonomy rights. Children are often seen as primarily vulnerable. Of course children are vulnerable, but a lot of the time this is because they are not properly informed about matters affecting them. They can become more autonomous with information and support.

Catherine: A theme of my research has been the gendered construction of identities and of the potential social and legal impacts of these constructions.  I have written a number of articles on the social and legal responses to female sexual offenders, I have explored the performance of masculinities in the context of corporate crime and culture, and I have critiqued the role that social and gendered constructions of childhood play in the legal regulation of the age of consent to sexual activity.  These same constructions are evident in debates around the provision of sexuality education, in particular those framed around denying young people access to sexuality education to “protect their innocence”. 

What will you be doing next?

Aoife: At the moment my projects include looking at how equality law may apply to children, and also at  how professionals understand children’s ability to make decisions. (funded by the Independent Social Research Foundation). The research will consider this in light of the complex interactions between neurobiology, social/ familial ties, and practitioner knowledge of developmental psychology; to develop a rights-based theory of ‘children’s competence and context’ to provide an alternative approach for practitioners and for the legal arena. Many of children’s rights revolve around whether they have ‘competence’ about something, so I feel passionate about progressing understanding of these questions (see my first piece on this here).

This is very relevant to sex education as often there is a misunderstanding that children don’t have the ‘competence’ to understand it. Ideas about respect and personal space can in fact be introduced at a very early age in an age-appropriate way.

I am also working with Swedish colleagues 2020-2023 to examine how equality law can help children – under-18s are usually excluded from equality law and there a lot of grey areas, for example around whether you can make your own medical decisions for under-18s. (Funded by the Ragnar Soderberg foundation).

Catherine and I are at present working together with academics in the UK such as Dr Rachel Heah of the University of Lancaster to create an international network of academics and practitioners with an interest in sex education to emphasise sex education as a children’s right.

Catherine: In addition to continuing to work with Aoife on developing further the implications of this article, on an individual level I am working on an article which looks at the inadequate provision of sexuality education from another angle.  In this article I argue for the creation of a new defence for young people charged with sexual offences in the absence of comprehensive sexuality education.  This would be an exception to the general rule that ignorance of the law is no excuse. 

A pre-print version of 'Sexuality Education and International Standards: Insisting Upon Children's Rights' is available here: https://ucc-ie.academia.edu/AoifeDaly/Sex-Education-as-a-Human-Right 

Dr Aoife Daly

Why did you choose to study law?

I originally studied Applied Psychology at UCC! It was an amazing experience, and I was most interested in critical psychology which seeks to achieve social change. When I heard about postgraduate studies in human rights law at the Irish Centre for Human Rights, NUI Galway, I knew it was for me. I aim to contribute to the progression of social justice through academic work. I try to work widely with civil society – I have worked with Amnesty International, with kinship care organisations, as well as the UK’s Equality and Human Rights Commission, to try to bring a human rights-based approach to various issues, particularly those to do with children and other groups who face disadvantage and discrimination.

Who is your greatest academic influence?

The wonderful Prof. Michael Freeman has had a huge influence on my work – he has written extensively about children and their rights to be treated with greater respect. He writes with authority and passion; pushing boundaries about how we see children, and challenging assumptions about how the law deals with difficult areas such as when children should legally be permitted to make decisions for themselves.

What is your favourite law book?

Fineman’s The Autonomy Myth: A Theory of Dependency (The New Press, 2004) argues that vulnerability is universal and constant and that it is inherent in the human condition. She argues that there has been a collective failure to take responsibility for those who are in need of assistance and those who care for them. This is because we have a simplistic idea about what autonomy is – one that revolves around a fiction of a liberal individual. She argues we have a ‘social debt’ to caretakers, as without such care, society would collapse.

The institutions and structures that society has established to manage our common vulnerabilities should therefore be organised around “caretaking relationships”, particularly those involving children or elderly dependents. This helps us to acknowledge that, because we are all “inevitably dependent” at various times in our lives, society as a whole must play a key role in providing assistance.

We are all at some point in need of care - as children, as the sick, and as the elderly for example. Care duties disproportionately fall on women. Vulnerability is seen as inherent in these groups, when in fact we all are vulnerable to greater or lesser extents. I find her work insightful and useful when it comes to tackling difficult issues of vulnerability and autonomy in children’s rights.

What is your favourite non-law book?

Maya Angelou’s Letter to my Daughter. This is a series of stunning essays dedicated to all women of the world by an African-American writer and poet. She shares her wisdom through touching life stories with style and humour. Beautiful insights are provided on parenthood, friendship, mental health, gender, culture and race amongst many other facets of life and living. While the stories range from the whimsical to the tragic, she has a striking attitude of hopefulness and positivity: "Stormy or sunny days, glorious or lonely nights, I maintain an attitude of gratitude.”

What is your proudest academic achievement to date?

In 2018 I published a monograph – Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill/Nijhoff). I argue that where courts are making decisions about children’s interests, a right of children ‘to be heard’ (this is what they have under the UN Convention on the Rights of the Child, and consequently in many domestic legal systems) is insufficient, as their wishes can be overridden without much justification. I gather data from courts all over the world (on cases from medical treatment, cases deciding where children will live on family breakdown etc.) to show that this appears to be a trend. Children’s wishes are regularly overridden on the basis that they are incompetent, or not mature, or any other unexamined term which is useful for adults. I propose instead a ‘children’s autonomy principle’: that children should have a right to a presumption in favour of what they wish (to be possibly overridden if what they want would likely result in significant harm). In liberal democracies adults perhaps prize the right to autonomy (i.e. to have as much control over our lives as possible) over all other values, and so we should take it more seriously for under-18s also. This book was the result of ten years of work, and of much reflection on children and the human condition. To see my theory being used by Ph.D. students, and others in the area of children’s rights, gives me huge satisfaction.

Dr Aoife Daly joined University College Cork as a law lecturer in 2020. She writes and teaches on law and human rights from interdisciplinary perspectives, drawing for example on feminist theory and psychology. Read more here: http://research.ucc.ie/profiles/B012/aoife.daly@ucc.ie

Dr Catherine O'Sullivan

Why did you choose to study law?

To be honest, I didn’t know what I wanted to do when I was doing my Leaving Certificate.  I knew that I liked English, History and Art. A career guidance teacher suggested that I might like to study law so I put it down as my top choice. I was lucky that I followed his advice because it was the perfect fit for me.

Who is your greatest academic influence?

There are a number of ways of answering this question, but I think in terms of why I chose to become an academic, the biggest influences for me were law lecturers here in UCC who inculcated in me not only a love of law but also an awareness of its limitations.  Two lecturers in particular stood out as what they taught and how they taught it has informed my own teaching and research –  Prof Caroline Fennell who taught me Criminal Law and Prof Tim Murphy who taught me Jurisprudence in third year.  Not only did I end up specialising in criminal law, partly I think because I was inspired by Prof Fennell, but she was also the first person I had ever heard talk about feminism; Prof Murphy introduced me to the Law and Literature movement which was part of my journey into interdisciplinarity.

What is your favourite law book?

My favourite law book is one that I haven’t read in a long time, but it was very influential in my development as a socio-legal feminist scholar.  It is Prof Carol Smart’s Feminism and the Power of Law (1990). This book really made me see how law had historically (and still to this day) discounted women’s voices and made me aware of the dangers of seeing law as a panacea to feminist concerns.  Prof Smart’s problematisation of legal knowledge was revelatory as was her recourse to extra-legal resources.  That she came from outside law – she’s a sociologist – and was able to write so incisively about it was eye-opening and demonstrated to me the value of interdisciplinarity.  Her focus on sexual offences too was formative, as this became the subject of much of my work.  I subsequently read her excellent critical work Women, Crime and Criminology which also had a big impact on my scholarship.

What is your favourite non-law book?

The book I keep going back to again and again because it never fails to make me laugh is Good Omens by Terry Pratchett and Neil Gaiman.  I’ve bought it twice.  The second time was after I lent a much dog-eared copy to a friend who inconveniently left the country (just to keep the book, I’m sure).  My love of apocalyptic fiction no doubt stems from reading this book when I was young and impressionable, although few fictional apocalypses since have been as witty and heart-warming as this one.  In these times, a book that makes you laugh is to be cherished.

What is your proudest academic achievement to date?

Like Aoife, I am very proud of work that has been taken and used by others to frame their arguments.  The best example of this has been my critical analysis of the Dolny case which appeared in the Irish Jurist in 2010.  In Dolny it was determined that the definition given to assault in section 2 of the Non-Fatal Offences Against the Person Act 1997 was irrelevant to the meaning to be given to the word “assault” in section 3 (the offence of assault causing harm).  I strongly disagreed.  This article was part of the material presented to the Supreme Court by lawyers in Brown, a 2018 appeal before the Supreme Court, where the interpretation of the law that had been given in Dolny was challenged.  They were successful on this point. 

Dr Catherine O’Sullivan is Vice-Dean for Learning, Teaching and Curriculum at the UCC School of Law. She completed her Ph.D. at Osgoode Hall Law School, Canada, in 2005. Her main research interests lie in Criminal Law, Criminology, Gender and the Law, and Law and Popular Culture.  Read more here: http://research.ucc.ie/profiles/B012/catherineosullivan