The haver of the sex, in this instance, is of course the adult. This begs the question whether “sex” can be had with a child? The reason for this question is that for sex to be had, consent must, as a rule, be obtained, from both parties engaging in the act of sex. The question of a minor consenting to sexual intercourse is a complex one which has been debated for many years, especially with considerations of the principle of evolving capacities which proposes that various factors impact the ways in which, and the ability of a child to have sex. It assumes that although a child is, in many instances a minor, a two-year-old minor, has a different mental faculty and capacity to made decisions, good, bad, or just life decisions, from a 16-year-old. Evolving capacities look at children, individually, taking into consideration their capacities, their resources and livelihoods and their environment which advises the ways in which they make decisions and what those decisions are.
That said, it provides that to not consider all this, is to deny children the full enjoyment of their rights. It also suggests that for the full enjoyment of their rights, there is a positive obligation to ensure that children are not only protected, but that whoever breaches their protections, is taken to task.
