In the last week, a web-wide discussion about rape culture, masculinity, and the erasure of male victims of sexual assault took off after Chris Brown told the Guardian that his sexual debut was at age 8, to a girl of 14 or 15. As necessary and important as this conversation is, I find the way in which it started troublesome, to say the least. It is true that it was illegal for Brown to have sex at the age of 8, since the age of consent is set at 18 in Virginia. But to call it rape, despite what I perceive to be the good intentions of doing so, is an unthoughtful and unproductive knee-jerk reaction that eludes the nuances of consent.

To begin with, while I recognize that often victims blame themselves for their assault and need time, support or resources to recognize the event as assault, I find the impulse to decide the nature of a sexual experience for another person based on very little information to be problematic. But the bigger problem is that by calling Brown’s sexual debut rape, we are saying that rape is what the legal system says it is. I’m disturbed by the ease with which writers, feminist and otherwise, are accepting and using as evidence to support their claims the standards put forth by a historically racist, sexist, classist and homophobic institution (the list could go on). For race- and/or gender-aware publications Colorlines, Clutch, Feminspire, and Jezebel (though less of a surprise with that one) to embrace these systems without question or reflection showed a fundamental gap in their arguments.

Furthermore, the legal system and the knowledge it produces are not ahistorical or unchanging. In her book, Harmful to Minors: The Perils of Protecting Children From Sex, Judith Levine provides a useful summary of how age-of-consent laws have shifted over time:

“In 1800, the age of consent was ten throughout America. In 1880, after the white-slavery panic, when a ten-year-old might be working fourteen hours a day in a factory, it was sixteen. In the 1990s, the age of consent range, literally, all over the map: in Hawaii in 1998 it was fourteen, in Virginia, fifteen; Minnesota and Rhode Island, sixteen; Texas, seventeen; Wisconsin; eighteen. In New Hampshire, it was illegal for anyone to have sex with somebody under sixteen, even if both people were under sixteen.”

I don’t cite Levine to show that the age of consent used to be lower and we should return to the “good old days,” but rather to demonstrate that the idea of consent, and at what age someone can meaningfully give consent, emerges in response to political and cultural climates; it is not in any way an objective, self-evident or stable measure.

Age of consent laws can be seen as arbitrary to the degree that age as a measure of maturity is. One does not suddenly become ‘an adult’ at eighteen; they do not spontaneously lose all of their vulnerabilities and magically gain the ability to make only the wisest choices. If people who have been deemed legally able to consent still engage in sex that they later have trouble in distinguishing as consensual or not, it would follow that reaching a certain age is not what gives someone the ‘capacity to consent.’ I would argue, then, that conversely, people below the age of consent are not unable to actively desire, pursue, and engage in sex.

What I’m getting at is that the way we conceptualize ‘consent’ limits our understanding of the varying degrees to which people may or may not want to engage in sex. In terms of those the state calls ‘adults,’ consent is a binary: either a person is actively consented or was forcibly coerced. Notably, female-identified people, in particular, are told they do not have the capacity to consent until they reach a certain age, and once that age is reached, they will have to go to great lengths to prove, if sexually assaulted, that they did not consent.

But to return to Brown’s case, and children more generally: what does it mean to decide that people under a certain age cannot consent? That they do not want sex? That they shouldn’t want sex? That if they do have sexual desires, they shouldn’t act on them? If the latter is the case: why not?

In Thinking Sex: Notes for a Radical Theory on the Politics of Sexuality, Gayle Rubin critiques hierarchies of sexual relationships that are based on idea of good/bad or natural/unnatural sex, and calls for dismantling the value systems attached to sex. Part of this discussion includes children:

“The law is especially ferocious in maintaining the boundary between childhood ‘innocence’ and ‘adult’ sexuality. Rather than recognizing the sexuality of the young, and attempting to provide for it in a caring and responsible manner, our culture denies and punishes erotic interest and activity by anyone under the local age of consent. The amount of law devoted to protecting young people from premature exposure to sexuality is breath-taking.”

Rubin’s point that age of consent laws “make no distinction between the most brutal rape and the most gentle romance” succinctly summarizes my thesis. We don’t know anything about what happened except the ages of the parties involved, and though I recognize the power dynamics that tend to exist between older and younger people, as well as the possibility that this encounter was coerced, that’s all I can do. We don’t know anything about their relationship and we don’t know who initiated sexual contact. To use age as some sort of verdict is only to mask the complicated mess that is ‘consent’ and reinforce the idea that age-of-consent laws are always useful rather than taking the time to ask the more difficult questions—what it means when certain people are legally not allowed to consent, how consent has been produced and to what ends, where and when consent fails, if anyone can ever ‘freely’ give consent.

In response to the critique of the brevity of the original Colorlines article about Brown’s interview, Akiba Solomon wrote that, “If Chris Brown were a woman, I doubt if the Guardian or we would have handled this bombshell with so few words.” It’s true that the media, beginning with the interviewer, most likely would not have moved on from Brown’s admission as quickly as they would have with a woman, which I attribute, as other writers on this subject have, to a culture which assumes that men always want sex and that women never do, that men are the actors and women are acted upon. However, I would have had the same response as I’m having now to people had calling someone else’s underage experience rape regardless of gender. I write this article very conscious and critical of the fact that male rape victims are often ignored, silenced or actively rejected from conversations about rape. My aim here is not to detract from the growing discourse addressing the effects of rape culture and patriarchy on men; rather, it is to ask how we can move beyond institutional (i.e. flawed) definitions of consent and begin to build more meaningful understandings of vulnerability, desire and power.