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Justice Ginsburg's Past Endorsement of Lowering the Age of Consent to 12:

[UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Sen. Lindsey Graham recently said that Justice Ginsburg "represents the ACLU," "wants the age of consent to be 12," and "believes there's a constitutional right to prostitution." Timothy Noah (Slate's Chatterbox) calls this a "smear." Mr. Noah is far kinder to my earlier comments about the Ginsburg-age-of-consent matter, but still refers to them as "analytically faulty." He also faults "Edward Whelan, president of the conservative Ethics and Public Policy Center" for making the same "ridiculously distorted" "pro-pederasty accusation."

I've wanted to comment further on this ever since Mr. Noah's piece was called to my attention on Monday, but it took a day and a half for me to get the relevant source from the library. Now I have the data, and can say a few words about the issue, and about whether the charge is a "smear" or a legitimate allegation.

1. Justice Ginsburg is indeed on the record as having endorsed lowering the age of consent to 12. When she was a law professor at Columbia, she, Brenda Feigen-Fasteau, former director of the ACLU's Women's Rights Project, and 15 law students put together a report for the U.S. Commission on Civil Rights. The report, released in 1977, gave as one of its "Recommendations" (p. 102):

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

The report also said (p. 97) that "Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions" (citing the right-of-privacy cases), and urged that various federal prostitution statutes be "[r]epeal[ed]." This isn't precisely the same as saying that "there's a constitutional right to prostitution," because of the qualifier "arguably," but it's not that far off; the report wasn't merely impartially noting that this is one possible position, but seemingly endorsing it as the sounder position.

2. Was the quote, though, taken out of context? That, I take it, is the heart of Mr. Noah's argument. "Yes, the language Ginsburg quotes with approval puts the age of consent at 12, which does seem awfully young. But she isn't addressing herself to the age issue; she's addressing herself to the gender issue. Is her praise meant to constitute an endorsement of the entire bill? Of course not. Ginsburg makes this explicit in a footnote in which she complains that even this language 'retains use of the masculine pronoun to cover individuals of both sexes,' which at the very least is confusing if it's intended to outlaw statutory (and other) rape by women, too." (Here Mr. Noah is quoting from a 1974 version of this report; he didn't have a copy of Sex Bias in the U.S. Code.)

Yet then-existing federal law set the age of consent at 16. If the Ginsburg report had only intended to make the law sex-neutral, it could have done so without suggesting a new age of consent, or endorsing a proposed federal bill that lowered the age of consent. Yet the Ginsburg report's proposal recommended the replacement of a sex-specific age of consent of 16 with a sex-neutral age of consent of 12. It seems to me quite fair, and not a "smear," to fault the report for suggesting this change.

The report's recommendation tracked the proposal in a then-recent senate bill (S. 1400 § 1633), but the authors were perfectly free to urge their own language, or to urge a mix of the bill language and their own language. In fact, as Mr. Noah himself points out, the Ginsburg report criticized S. 1400's use of "he" to cover both men and women. If the Ginsburg report disagreed with the proposal's lowering of the age of consent to 12, the report could easily have noted that as well, or at least could have noted that it was agnostic about the age of consent, and was recommending only the sex-neutralization aspects of the S. 1400 proposal.

Moreover, the Ginsburg report isn't bashful about expressing itself on some matters besides sex discrimination. For instance, its criticism of prostitution bans isn't limited to objections that the bans discriminate based on sex (either on their face or in their enforcement); the report also argues that prostitution may be substantively constitutionally protected as part of people's sexual autonomy rights (p. 72 of the 1974 version, p. 97 of the 1977 version). The Report likewise faults the Mann Act, which "prohibits the transportation of women and girls for prostitution, debauchery, or any other immoral purpose" (emphasis mine) not just for its sex discrimination, but also because it is "too broad and vague," and an "invasion of privacy" (p. 73 of the 1974 version, p. 98 of the 1977 version).

Mr. Noah suggests that "Ginsburg didn't address the age-of-consent issue because it wasn't relevant to her topic. Say it with me. She wasn't writing about age; she was writing about gender!" Yet the report, though about gender and not about sexual autonomy rights, vagueness, or overbreadth, opined on a possible constitutional right to engage in prostitution, and the vagueness and breadth of the Mann Act. If the report's authors found fault with the Senate bill's proposed age of consent, they could likewise have easily said so. (Mr. Noah is right to point out that the report's authors continued to include the spousal rape exception in their recommendation, though it's probable that they didn't much like that exception. That part of the recommendation, though, maintained then-existing law, so presumably the drafters didn't want to take on a new fight there. The lowering of the age of consent, though, would have dramatically changed existing law, and it's hard to see why they would endorse the change if they didn't actually support the change.)

3. Mr. Noah also asks — based on my own observation that the version of S. 1400 § 1633 that I could find provided an age of 16, not 12 — "Could all this Sturm und Drang be over . . . a typo? A typo that, mysteriously, was transposed from Ginsburg's 1974 paper to the 1977 booklet? That would be too rich."

As it happens, I have just today found another version of S. 1400 § 1633 (excerpted in 13 Crim. Law Reporter 3011, Apr. 4, 1973), which did set the age of consent at twelve. This must be the version to which the Ginsburg report referred. Yet even if it were possible that the Ginsburg report simply had a copying error in it (I surely can't fault Mr. Noah for not having found the version that I couldn't find earlier myself), I don't see how this possibility would make Sen. Graham's and Mr. Whelan's criticism of Justice Ginsburg into a "smear," or even how it would "seriously undermine[ Volokh's original] argument" (Mr. Noah's words).

It seems to me that people are entitled to take others' proposals at face value, at least unless there's an obvious drafting error (to give a hypothetical example, imagine a proposal that mentions an age of consent of "sixteen days" instead of "sixteen years"). If the proposal's author then says "Whoops, I miswrote something," or even "Very sorry, a too-libertarian student added this, and I didn't catch it," we should certainly consider that explanation, and generally accept it. But unless such an explanation is forthcoming from the authors or others who know (and not just guess), it's no "smear" to accurately summarize and criticize others' writing.

4. Finally, I should certainly acknowledge that Sen. Graham was inexact in the tense of his statements that Justice Ginsburg "represents the ACLU," "wants the age of consent to be 12," and "believes there's a constitutional right to prostitution." Obviously, Justice Ginsburg represented the ACLU in the 1970s; she doesn't represent them as a lawyer now. Moreover, we don't know for sure that Justice Ginsburg, even if she endorsed every word in her report, would still recommend today that the age of consent be lowered to 12, or would still say that there's even "arguably" a constitutional right to prostitution. Justice Ginsburg's reputation as a judge in the 1980s and a justice since the 1990s has been of a relatively moderate liberal, not the harder-core liberal that seems to be visible in the pages of the reports. Perhaps she's changed her views (as Mr. Noah suggests), or, again, perhaps she didn't closely review every word that appeared in the initial report. But again it hardly seems like a "smear" to attribute to people their past views, unless they have specifically recanted their views; the more careful and precise usage is to make clear that Justice Ginsburg said she wanted this in the past, not that she wants it today, but the less careful usage is no smear.

* * *

It thus seems to me that Sen. Graham and Mr. Whelan are more sinned against than sinning here. They accurately reported or quoted the views expressed in the report that Justice Ginsburg cowrote. The accounts are indeed in context, given that the report was suggesting a change in the law, and that the report felt free to opine not just on sex discrimination but also on some substantive matters. Maybe there was an error in the report, maybe Justice Ginsburg didn't fully check everything the report contained, or maybe her views are different now. But it seems to me unsound to characterize Sen. Graham's statement as a "smear" or Mr. Whelan's accurate quotes from the Ginsburg report as "ridiculously distorted."

Anon.:
Of course Ginsburg wanted to lower the age of consent. She's nothing if not consistent. If a 12-year old girl is competent to decide whether to abort her pregnancy without parental consent, then she's certainly competent to decide whether to take the step necessary to give her the opportunity to exercise that constitutional right.

That seems a bit more likely than the possibility that Ginsburg was determined to protect the right of each and every adult to engage in sexual acts with little girls, rather than just little boys.
9.21.2005 5:50pm
DelVerSiSogna:
If I understand correctly (which I may not), the situation in light of Prof. Volokh's new research is that (1) there was a version of the Senate bill that proposed setting the age of consent at 12 and (2) Ginsburg's report was quite possibly a response to that form of the bill. If those are correct, I think it's misleading to say that Ginsburg "proposed" lowering the age of consent to 12, at least without describing the context more carefully.

Still, I think Timothy Noah's column was itself a bit of a smear, because it omitted some very important context from Sen. Graham's words. Mr. Noah cuts off his quotation from Graham after these words: "She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?" Reading just those words, one would think that the closing question is entirely rhetorical and that Sen. Graham's answer is "a very bad heart."

But Sen. Graham went on to say:

Well, she has a different value system than I do. But that doesn't mean she doesn't have a good heart.

And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is, "Adopt my value system," we're doing a great disservice to the judiciary.


It's a bit much to call Graham's words a "smear" when his explicit point was that even with the views ascribed to her, Justice Ginsburg still has a "good heart."
9.21.2005 6:03pm
alkali (mail) (www):
Suppose Justice Ginsburg had said, "I loved that TV show Cheers; I think that Charles Manson is a funny, handsome guy."

It would seem that there are two possibilities: (1) Justice Ginsburg has a crush on a serial killer; or (2) she meant to say "Ted Danson" and erred. It is obvious which of the two is more likely. Under those circumstances, would it be fair to state "Justice Ginsburg thinks Charles Manson is funny and handsome" as a plain fact?

(An objection could be raised to my analogy that no one actually thinks that Charles Manson is funny and handsome. Actually, there are a sliver of deluded people who think that, just as there are a few deluded people who think that the age of consent should be lowered to 12.)
9.21.2005 6:04pm
Medis:
Of course they COULD have criticized the bill's proposed lowering of the age of consent. But their failure to do so doesn't necessarily mean that they "endorsed" that specific measure, or specifically "wanted" to lower the age of consent. It could equally well mean that they simply IGNORED that particular proposed measure, which in turn is consistent with not caring about that issue, or even not considering that issue at all, both of which fall short of "wanting" to lower the age of consent.

In general, one has to be very careful about moving from inaction (a failure to comment on or criticize this particular measure in the model bill) to decision (they decided to endorse this measure) to motivation (they wanted to lower the age of consent). And that is because there are usually lots of possible reasons for inaction, including a simple failure to consider the issue at all.
9.21.2005 6:10pm
Eugene Volokh (www):
Sure, if someone is obviously misspeaking, we should recognize that. But what reason is there to think now that this was just some transcription error on Justice Ginsburg's part?

There obviously was some serious sentiment at the time in favor of lowering the age of consent to 12 -- such a bill was introduced in the Senate, and that's the bill that the Ginsburg report seemed to generally praise. I agree the view is deluded, but some people seemed to have it during that era. (For whatever it's worth, the National Coalition of Gay Organizations' "1972 Gay Rights Platform in the United States" called for "Repeal of all laws governing the age of sexual consent." According to Laud Humphreys, Out of the Closets: The Sociology of Homosexual Liberation 162 (1972), the meeting at which this was adopted was apparently a pretty mainstream event within the liberal activist movement -- "[s]upportive telegrams were received from Democratic candidates John Lindsay and George McGovern," which suggests that it wasn't just an entirely irrelevant fringe group.) So I don't see much of a basis for just assuming that this was a mistake of the Ted Danson / Charles Manson variety.
9.21.2005 6:19pm
Eugene Volokh (www):
Remember that the report was a report on the federal code. The report was making recommendations for changes to that code.

One of the recommendations was drawn from a then-proposed bill; but the report was indeed affirmatively making a recommendation. It didn't have to rely on the bill (since it wasn't a report on proposed the bill, but on the then-existing federal code). Even if the report relied on the bill, it didn't have to urge adoption of the bill with no changes.

When a report makes a recommendation for new legislation, and this recommendation would lower the age of consent from 16 to 12, it seems to me quite reasonable to fault the report for making such a recommendation, even if the recommendation echoed someone else's proposal.
9.21.2005 6:23pm
Mona (mail):
Well, this is one area in which this Bush supporter agrees with the left. 12 is probably too low; but 13 or 14 is not. Teachers and step-parents, people in positions of authority, these should be prohibited from sexual relations with their charges. But otherwise, there are a great many 14-yr-old girls (and boys) who are inclined toward sexual activity and entirely capable of consenting to it. Locking up those with whom they have consented is manifestly unjust. In one jurisidiction in which I have practiced, a religious zealot in the prosecutors ofc made a campaign of locking up 18- and 19- yr old men who had had sex with 15 yr old girlfriends. He thought this an ideal way to attack teen pregnancy. Never mind that it turns young men into convicted sex felons.

Heck, the Virgin Mary was 13 or 14 when she agreed to be impregnated by the Holy Ghost; was that divine rape? In most cultures in most times people accepted the biolgicial reality that post-pubescent "children" are sexual, and able to consent to sex. Because they, in fact, are.
9.21.2005 6:30pm
John S (mail):
Bringing this up is certainly not "smearing" Ginsburg. However, given how long ago it was she said it, I don't see the point of Lindsay Graham's usage of it. Roberts said a lot of things in his roles as an advocate that were very controversial and he dismissed them when questioned by Senators.

Maybe she still would support such a change (with that position not affecting her legal support of such a change as a SCOTUS justice) but it seems to me out of bounds for Graham because she was not testifying and she has no ability to rebut these charges which are certainly intended to inflame the right's hatred of "activist" judges.
9.21.2005 6:31pm
Medis:
Sure, they did not HAVE to rely on the proposed bill, nor did they HAVE to propose adopting the bill without also advocating the bill instead retain the original age of consent. But again, the precise issue is how much you can read into the fact that they could have done something different, but did not. And I maintain that their actions are equally consistent with either being neutral with respect to the age of consent, or not even considering the issue at all.

So, you can't conclude that they had taken an affirmative view on the age of consent simply from the fact that they could have objected on that aspect of the proposed bill and did not.
9.21.2005 6:37pm
Long Gone (mail):
I've looked at the reports, and think it only technically correct to claim that Ginsburg recommended lowering the age of consent. But Noah is too harsh on Graham given this.

The key thing for me is that the reports contain no discussion of the age issue, or any hint that any controversy about the age might exist. Other substantive proposals for change are made, but the rationale for the changes is given.

Another point is raised by this post in The Fray on Slate, entitled "Theory about lowering statutory rape age": http://fray.slate.msn.com/?id=3936&m=15776204.
To the degree that we are talking about statutory rape as a strict liability crime, it appears that the proposed statute raised the age at which liability became strict from 10 to 12. The common law and the model penal code had the age at 10. The 12 year old age was enacted later, several years after the paper, and remains in the code, though the age of consent for federal statutory rape for which reasonable mistake as to age is a possible defense is 16.
9.21.2005 6:41pm
Taimyoboi:
"But otherwise, there are a great many 14-yr-old girls (and boys) who are inclined toward sexual activity and entirely capable of consenting to it."

I don't see how inclination and ability to say "yes" are sufficient to warrant lowering the age.

Teenagers have the inclination and capability to do a lot of (stupid) things. The overriding concern, however, is that they lack the faculty to think through the consequences of their actions.
9.21.2005 6:47pm
Medis:
As an aside, I might note that rather than saying S. 1400 § 1633 should be passed, the recommendation is to adopt a law "patterned" after that bill. I would suggest that careful use of language also works against the interpretation that they were necessarily endorsing every undiscussed detail of that bill.
9.21.2005 6:47pm
Bryan DB:
Eugene,
It seems a lot like 18 USC 2302 part (c) is defining child sex, not consensual sex. In that case, doesn't it make more sense for the age to be 12 than 16? I have a lot easier time saying that an 11.5 year old is a child than I do a 15.5 year old (who's almost ready to drive). One could argue that because 12 is before puberty, while 16 is after, that if one was trying to define the crime of having sex with a child that one would use the former age and not the latter.
It seems like the "consent" issue is already in part (1) as a side-issue of what it means to "compel" (one who has been compelled does not give consent).
9.21.2005 6:47pm
Eugene Volokh (www):
Long Gone: I don't think that's right; to the best of my knowledge, the federal rule (and the Ginsburg report was only talking about federal law) was strict liability as to age, with the age of consent being 16. The Ginsburg report recommended changing the rule to being sex-neutral and having an age of consent of 12.

The Model Penal Code isn't terribly relevant here, because the federal law wasn't based on the Model Penal Code; the common-law age of consent is also not relevant, because the federal statute expressly set the age of consent at 16, with no requirement of negligence or defense of reasonable mistake of fact.
9.21.2005 6:59pm
Long Gone (mail):
My previous post gives a false impression: as I understand it, the law eventually enacted was very much like the proposed bill approved by Ginsburg. That law 1) raised the age of strict liability federal statutory rape from 10 to 12; and 2) eliminated any federal non-strict liability rape above that age. The non-strict liability rape involving 12-15 year olds re-entered the statute later. So the bill would have both raised and lowered the age of consent, depending on the form of liability involved.

It is possible that the authors of the paper entirely approved this change. But I think one cannot infer that from the reports. To me, the best way for the authors to recommend the adoption of the gender-neutral language in the proposed bill without entering an opinion on the age of consent issue was to recommend the adoption of the bill. By this reading, the recommendation would have stood whether or not the age of consent was 12 or 16 or some other age, and that is because it would have equally satisfied the reason the change was recommended with any number. To have substituted 16 for the language of the bill would have been to take a position on the age issue. Not commenting on the age was just that, no comment on the age.

Yes, had the authors wanted to take a position on the issue, they could have not adopted the proposed bill and done their own revision. However, if done for purposes of keeping the age as is, it would also have constituted taking a position on the age issue. This is different than the cases in which the authors took positions on issues beyond simple gender-neutral language.

I do not think these reports can substantiate the idea that Ginsburg advocated lowering the age of consent, let alone advocates, and I think Graham's comment is meant to give the impression that she does, or did.
9.21.2005 7:00pm
Rob Johnson (mail):
Who reads Slate without expecting a "smear"?
9.21.2005 7:01pm
alkali (mail) (www):
The proprietor writes:

Sure, if someone is obviously misspeaking, we should recognize that. But what reason is there to think now that this was just some transcription error on Justice Ginsburg's part?

I think the substance of your post makes clear that there is substantial reason -- aside from the odiousness of the view itself -- to think that she did not intend to express the view that the age of consent should be 12. At the same time, for the reasons you point out, it is at least thinkable that she did hold that view. That said, the mere possibility that she did is not a basis for attributing it to her without qualification.
9.21.2005 7:07pm
Noah Snyder (mail):
To boil things down a little, do I have the following facts right? Ginsburg endorsed a bill that lowered the age from 16 to 12, but did not explicitly comment (pro or con) on whether she approved of that aspect of the bill.
9.21.2005 7:08pm
Long Gone (mail):
You no doubt are right about whether the Federal offense was strict liability or not,Eugene -- I claim no expertise. I looked at the cases in the Slate post, which at least indicate that some courts were responding to due process or other challenges to strict liability statutory rape. Perhaps the bill was meant to forestall such a response in Federal court. (I do think the model penal code relevant in demonstrating context, though obviously it had no force of federal law. A lack of context is the problem with the whole argument -- we don't know the context in which the age change was discussed and enventually enacted, the various arguments involved or what was being addressed, and don't have any idea whether or not Ginsburg had an opinion on the arguments or not.)
9.21.2005 7:10pm
SimonD (www):
I referenced Eugene's post just yesterday, lol.
9.21.2005 7:22pm
T. Gracchus (mail):
I think EV needs to say a bit more how being one of a group which produced a report constitutes endorsement of all material in the report. Could well be, but a further description of the content of the report, length, number of participants, or express statements, for example, would help.
9.21.2005 7:42pm
Clayton E. Cramer (mail) (www):
alkali writes:
Actually, there are a sliver of deluded people who think that, just as there are a few deluded people who think that the age of consent should be lowered to 12.
Just a few deluded people. The ACLU (for whom Ginsburg worked when this proposal came out) argued a couple of years ago that 14 year olds have a Constitutional right to have sex with adults in a case out of Kansas. Not just, "This law is unjust because it treats homosexuals differently," or "We think that law should be changed to reflect modern conditions," but a Constitutional right. That means, if the Kansas Supreme Court had been crazy to accept this argument, that the state legislature couldn't reform the law, or revise it, to reflect the actual circumstances--the law just goes right out the window, and there's nothing that can be done about it.

Think about this: if a 14 year old has a Constitutional right to have sex with adults, it also means that adults have a Constitutional right to manipulate or entice 14 year olds into having sex. The ACLU and Ginsburg may try to cast this as "liberating" young people, or bringing the laws into step with modern times, but in practice, the result would be to put the vast swarm of predators who are 19 (or 25, or 35, or 45) in a new realm of opportunity to take advantage of kids who are 12, 13, 14, and are easily manipulated into sex.
9.21.2005 8:01pm
Jeremy (mail):
The main problem, in my opinion, is that few Republicans seem to realize what a horrible appointment Ginsburg was and how we should have Borked her when we had the chance.
9.21.2005 8:11pm
Greg D (mail):
Has Ginsburg ever commented on this? Has she ever said "yes, I thought the age of consent should be lowered to 12 in the 1970s, but I've changed my mind"? Or "The report I co-authored siad the age of consent should be lowered to 12, but I didn't agree with that part" (or "but that was a typo, we meant 16")? Have any of the other author's given teh "typo defense"?

If so, then I think it should be easy to defend her. If not, I think her defenders are stretching things horribly.

She helped author a report saying X, Y, and Z. Lacking public statements from her disavowing those beliefs (and it's been over 25 years since she published them, so she's had a long time to establish what she really meant), i can't see any justification for not taking her at her word.

Or, do you defenders justthink that she's too dumb to understand what went out under her name?
9.21.2005 8:12pm
Kazinski:
Look, this is politics here. Some of Ginsburg's defenders are trying to give Gisnburg the same level of protection and sheltering that the law gives to 12 year old's of all (4 or 5) genders. When someone puts their name on a report and the report contains recomendations, then it is fair game to ascribe those views to the signer. Unless of course the signer specifically repudiates those views. Where would politics be if you had to get a confirming restatement of views from a public figure everytime you wanted to slam them for something they said or wrote. And please don't say Supreme Court justices aren't political figures.
9.21.2005 9:22pm
Yankee_Mark (mail):
I think some unwarranted induction is going-on here. Reading both sources and their linked references, it seems clear to me that the 'fish' Ginsburg was seeking to fry was the gender issue. Also the references showed that there were many nuances to the age issue and putting the number 12 in place of 16 is not the same as lowering (or wanting to lower) the age of consent. At the time that bill was being discussed ... There was much concern at the unintended consequence of hitting a 14 year-old with the penalties under this statute for having sex with his/her 12 year-old beau. So I feel like the 'wants to lower the age of consent to 12' attribution can indeed be deemed a 'smear' by Sen Graham.
9.21.2005 9:53pm
David Berke:
Clayton,

Cite? I want to see the case where the ACLU made that claim, and some evidence that was their claim.

My understanding is that the rights of minors are kind of tricky (another way of saying the courts are very inconsistent.) I could easily imagine that the ACLU argued that minors have rights and it was misinterpreted.

I'm not sure that the existence of a right on the side of the minors does not by itself require the existence of the complementary right on the side of the adults. This might diminish the utility of the "right," but is not logically inconsistent.
9.21.2005 10:16pm
Mona (mail):
14-yr-olds have sex. They long have, by choice, and if that were not so few of us would be here; most people in most cultures had sex concurrent with or shortly after puberty hit.

Imprisoning 18- or 19-yr-old young men for the crime of "raping" a consenting 15-yr-old girlfriend is monstrous.

An 18 yr-old doesn't make good choices either, as compared to those decisions s/he would make at 28. But we don't criminalize 18-yr-old's sexual choices by denying that they have a capacity to make them.

Sex with a willing 14-yr-old is not pedophilia; it is not the equivalent of raping an infant. As I said, the purported Mother of God was willingly impregnated at 13 or 14, and I don't hear folks claiming that God the Father and Holy Ghost are pedophiles. She said: "Let it be done unto me according to thy word." Should we prosecute God, since he should have known Mary was incapable of giving the consent she offered? If Jospeh was really the father of 13-14 yr old Mary's baby, was he a pedophile? (This was the common age for marriage in that culture at the time, and was not unusual in that regard.)
9.21.2005 10:18pm
SimonD (www):
The ACLU (for whom Ginsburg worked when this proposal came out) argued a couple of years ago that 14 year olds have a Constitutional right to have sex with adults in a case out of Kansas
(Emphasis removed). Sure. I mean, why not? If you buy into unenumerated rights, what is the criterion for objecting to this proposal? What makes the "right to sex at 14" any different than the "right to abortion" or "right to free contract"? None of them are actually written in the text, so if they are there, an alternative explanation needs to be offered. This is exactly the point I've made repeatedly since Judge Roberts bought into substantive due process during his confirmation hearings. It is standardless.
9.21.2005 10:50pm
SimonD (www):
Imprisoning 18- or 19-yr-old young men for the crime of "raping" a consenting 15-yr-old girlfriend is monstrous.
I don't agree, but in any instance, is there any basis for saying that states cannot take my view rather than yours and enshrine it in law?

Sex with a willing 14-yr-old is not pedophilia; it is not the equivalent of raping an infant.
Rape is the act of non-consensual sex. A child under the age of consent is by definition incompetant to consent, and therefore cannot give consent. Surely, therefore, any sex with someone under the age of consent is ipso facto rape.

[T]he purported Mother of God was willingly impregnated at 13 or 14, and I don't hear folks claiming that God the Father and Holy Ghost are pedophiles.
That's a new one on me. Care to offer any sources to back it up?
9.21.2005 10:57pm
David Berke:
SimonD,

Sorry, but your last argument is just silly. By its lights, were the age of consent raised to 45, all sex at an age younger than 45 would automatically be rape. Furthermore, by your lights, two people born on the same day of the same year, one day away from the age of consent, who engaged in intercourse, would both be rapists. The age of consent as a proxy for competence to consent is a legal fiction, like any other. The question is whether the legal fiction is meaningful.

As for the 9th Amendment (I'm sure you think its just federalism, put as a placeholder because they wanted exactly 10 Amendments, serving no purpose beyond the 10th), I am certain that the many founders who complained about a bill of rights as an implicit limit on the rights of the citizens of this nation will rest easy knowing that you are there to champion their concerns.
9.21.2005 11:54pm
Steph (mail):
SimonD

The 9th Amendment is law. Granted one should be careful in interpreting it, but the common law rights are surely protected. The fact is that teenagers are in common law adults. The age for oath taking was if I remember properly 12. There are lots of smart teens out their who would be contributing to society if they weren't discriminated against.
9.22.2005 12:40am
Michelle Dulak Thomson (mail):
From Matthew Parris' invaluable Read My Lips:

(an unidentified bishop in the House of Lords, asked about the "18 compromise" re homosexual age of consent, 1994):

"Ah, I must have been reading it upside down. I thought it was 81, which did seem most unfair."

Seriously, David Berke, what do you propose to put in place of SimonD's "silly" reasoning? Obviously no one is going to raise the age of consent to 45; your alternative appears to be to lower it, de facto, to zero.
9.22.2005 12:45am
Buck Turgidson (mail):
I am somewhat confused by the claims and counterclaims here, but it seems that Eugene is running in circles. The "report" states that the authors propose a change "patterned after" 1400 and 1633 and adopts the language similar to what is found in their earlier versions. Where, exactly, does the argument come that the listed language represents the precise opinion of the authors? It seems that they are urging to adopt the language pattern following a model that they borrowed from another source. This hardly amounts to endorsing the viewpoint of the "source", if listing 12 as the age of consent could qualify as a viewpoint. If there is anything Ginsburg and the rest of the bunch could be accused of it is questionable judgment in the use of quotation marks.

Second, the purpose of list 12 as the age of consent, as has been already pointed out here (and has been mentioned previously in various contexts on this blog and in similar circumstances in other places), does not serve to satisfy the desires of pedophiles. It is a rather poorly stated attempt to avoid statutory rape charges for teenagers who are only slightly older than their alleged "victims". The problem, of course, is in the fact that the statutory language does not make that distinction clear, although there have been several attempts since then to encompass this problem at state level (e.g., listing the absolute age of consent and a lower age of consent where the difference in age between participants is less than X (e.g., X=2 years). So a model statute might list the age of consent as 16, with exception as low as 12, if the other participant in the act is no more than 24 months older. We can argue about the advisability of such a statute, but it is a far cry from sanctioning the reduction of the age of consent to 12.

It should also be noted that 12 is a common age of maturity in many cultures. In Western Europe this line had been fuzzy for a long time and raising the age of consent was seen as a sign of progress toward a civilized society. I don't know the exact history of the age of consent in the US, but I strongly suspect that its rise has similar roots. I wonder if there is any attempt to formally establish the age of consent in pre-Victorian periods.

Having said this, I should also add that I do not endorse lowering the age of consent to 12. Nor does this mean that I endorse any particular arbitrary age as appropriate age of consent. Remember that we are dealing with criminal statutes. As such, we should not lose sight of the fact that leaving the decision on the maturity of the "victim" to judges would be a grave mistake. Surely, there are psychological, physiological and emotional differences between individuals that are not age specific. Judges do not have the ability to evaluate data that are entirely based on an individual's judgment (in fact, many a judge has made an ass of himself by playing psychiatrist in an appellate court). This means that, at some point, legislature has to make a decision where to draw the line without making it appear too arbitrary. It seems that 16 was once a reasonable cut-off point. To most, 12 seems too low, although the precise reasons (aside from general and vague appeal to moral decay) are hard to formulate. Certainly, setting it somewhere in that range seems appropriate. Yet, no matter where it is set, it will be arbitrary.

Finally, it seems that Eugene is accusing Ginsburg of a crime of omission. She "failed" to satisfy him by not expressing an objection to a particular point (that the age of consent was listed as 12). At best, this seems to be an accusation of sloppy scholarship (a common theme in the mid-70s), but hardly one of endorsement of an unpopular view. To put it mildly, Graham's statement is a stretch--that is, it stretches the truth. In fact, I believe this description to be too mild. Graham is twisting the facts to fit his needs. I know this may be the way that Senators operate, but, in the rest of the world, this is unethical--far more so than Ginsburg's perceived offense.

Eugene, let it rest. This is not worth rescuing!
9.22.2005 1:31am
Bob1 (mail):
>Furthermore, by your lights, two people born on the same day
>of the same year, one day away from the age of consent, who
>engaged in intercourse, would both be rapists.

True as a matter of law, but we all know that as a matter of practice only boys are ever charged in such circumstances.
9.22.2005 2:04am
Challenge:
"I am somewhat confused by the claims and counterclaims here, but it seems that Eugene is running in circles."

Uh.... Circles? The report recommended lowering the age of consent to 12. Ginsburg's name is on the report. She apparently approved of it. Until she comes out and says she disagrees now (or maybe even then, despite signing it), then that is pretty much the only interpretation one is left. Sorry. :(
9.22.2005 2:07am
Richard Careaga:
Reading the copy of the report reminded me of Eric Blair's focus on using language as a political means of limiting thought, and so behavior.

Fortunately for the report's project, English is not an inflected language and the task involved only nouns and pronouns, not cases. But words and the choice of words matter--they reflect the accumulated experience of the society shaping that language. Changing the language does not change that experience, it simply leaves it without a conventionally accepted expression, making it harder to discuss. That, in turn, leads to displaced debates carried on through codes, such as "family values," "personal autonomy," and the like.

Taking the statutory rape discussion as an example, the question "what is a person's proper age of consent?" is not the same question as "at what age may a boy or girl consent to intercourse?" The former assumes implicitly that the same age applies to everyone. The latter invites the question "should it be different for boys than for girls?" The latter also invites distinction between heterosexual intercourse and other forms of sexual relations and whether the same rules ought to apply.

We don't argue over whether "more communication" is better than less. We should argue over whether less precise communication is better than more.
9.22.2005 2:09am
Charles Iragui:
I have been told that in Cuba and other Latin American countries the age of consent is 12. It is fair to say that opinions vary as to how the problem of consent should be dealt with. Graham's point was, as DelVerSiSogna pointed out, that Ginsburg's "heart" was no less good simply because she seemed to have a view different than his own. Where is the smear?

The only reason Justice Ginsburg's views, as stated decades ago, have entered the debate is to make a further point that Judge Roberts (and soon another nominee) is having his past views used against him. What's good for the goose...

But perhaps Republicans would be better served by maintaining the dignity they showed 12 years ago in voting in favor of nominee Ginsburg and refraining from this kind of digging.
9.22.2005 3:01am
David Berke:
Michelle,

My point was fairly simple. SimonD was using legal fictions in an unintentionally misleading way, and one which can lead to patently ludicrous results. It is the problem with using artificial definitions which do not match their real world understandings.

Rape is generally described as without consent. However, by defining consent in a manner which is inconsistent with its actual, understood meaning, you end up with (surprise) logical inconsistencies in the application, as described.

One can argue that because Rape is defined a certain way for the purpose of a statute, that such logical inconsistencies are irrelevant because the word Rape in this particular context is describing only the crime Rape under that statute. However, that would manifestly not be ipso facto Rape, which is a factual determination, and would instead be de jure, which is a legal determination.

I'm rambling. Essentially, he uses the word Rape in two different senses; Legally, and as commonly understood, and his comment presumes that demonstrating the former proves the latter, although the former uses assumptions inconsistent with the latter. I find such logic either silly, or dishonest. I presumed good intentions.
9.22.2005 4:40am
arbitraryaardvark (mail) (www):
I think it misrepresents RBG's stance to say she supported changing the age of consent to 12. She/The committee she was on supported changing a bad old law in a number of respects, including age. One might on balance support the new proposal over the old one even if one didn't support the age aspect. More to the point, there's a big difference between a federal law which replaces state ages of consent with 12, from one in a federal floor of 12 is set and states can set theirs at 14 or 28. I am avoiding for the moment the issue of territories and ships at sea. Remind me which clause of the constitution gives congress power to regulate sex? It seems she was supporting a federalism measure, in a limited way.
RBG earned her way onto the court by a career of advocating for the rights of women, as Thurgood Marshall had advocated for the rights of blacks. I think it is fair to say she "represents" the aclu; this is a political rather than legal sort of representation. I think it is fair to say that in 70s there was a libertarian feminist trend to recognizing that protectionist legislation concerning minors and prostitutes was doing more to oppress than protect. Part of it was a growing understanding that large numbers of 12-18 year old women were actually getting raped and not being helped by the legal system, and tending not to report the rapes or get counseling or other help. I have my differences with RBG's votes on the court. I have no hesitations about how she came to be there.
9.22.2005 5:21am
alkali (mail) (www):
Clayton Cramer writes:
The ACLU (for whom Ginsburg worked when this proposal came out) argued a couple of years ago that 14 year olds have a Constitutional right to have sex with adults in a case out of Kansas.
The case referred to is the case of Matthew Limon, a mentally retarded 18-year-old who was convicted of the statutory rape of a 14-year-old boy, also mentally retarded, who lived in the same group home. The ACLU argued that Kansas' "Romeo and Juliet" statute, which decriminalized sexual activity between persons both aged 14-19, should apply to the case, citing the Equal Protection clause. (The statute at issue was expressly limited to heterosexuals.) The merits of that position aside, that is not the same as arguing that 14-year-olds have a general constitutional right to have sex with adults.

Kazinski writes:
When someone puts their name on a report and the report contains recomendations, then it is fair game to ascribe those views to the signer.
Yes, but whether the report actually means to make that particular recommendation is the question, isn't it?
9.22.2005 10:02am
Bruce Hayden (mail) (www):
As a father of a 14 year old girl, I don't want the statutory rape age of consent dropped to 12. It is not the boys her age or a little older that I worry about, but the sexual preditors 5-10-15 years older.

I am reading "The Tipping Point" and it tells of one guy who preyed on 13-14 year old girls. He would give them presents, drive them around in his Cadillac, and then have sex with them. All told, he ended up infecting some 30 or so with AIDS before he was shot dead by some unknown assailant (possibly a male relative of one of the girls?)

I do think that 14 year olds do need legal protection against these older sexual preditors. I went through a case of statutory rape maybe 5 years ago. It quickly turned into a he-says, she-says thing, and without a lot of physical evidence showing force being used (instead, she was drunk), all we had left was statutory rape. In the case of the guy above, the girls were "willing" in the technical sense.

Thanks to the desexing of the rape laws, we have had a couple of teachers in CO go to prison for having sex with their underage male students. I think both of the two I remember had the boys getting the teachers pregnant - so the cases were pretty clear cut. What do you do for a boy who is obligated for child support at that age?
9.22.2005 10:45am
Medis:
Exactly right, alkali. I really see no evidence that the report intended to state a position on the age of consent, and I don't think advocating a law "patterned" after a bill that happened to lower the age of consent necessarily takes a position on that particular issue. Accordingly, I don't think one can say that report intentionally or even unintentionally presented a recommendation on the age of consent issue.
9.22.2005 10:48am
Jon Rowe (mail) (www):
As I said, the purported Mother of God was willingly impregnated at 13 or 14, and I don't hear folks claiming that God the Father and Holy Ghost are pedophiles.

This and some other comments bring to mind how, the way in which this this issue is often framed -- that the "subversive ACLU" and other agents of modern liberalism are trying to knock down the last and most sacred traditional taboo, sex with children -- simply doesn't reflect reality.

"Traditional morality" (wrongly) in my opinion drew the line between adulthood and children (at least for purposes of sex) the same place that nature draws the line: puberty, which begins around 12 for girls and 13 for boys. I'm sure plenty of commenters here have had Bar/Bat Mitzvahs. Remember what that's supposed to be about.

Girls tended to be protected from exploitation by the fact that sex was supposed to occur only in marriage and families had a lot of control over their daughters until they got married (and often could choose whom she married). But in most of the world and in Western Culture up until fairly recently it was considered perfectly fine for a 13 or 14 year old girl to be married and hence to be having sex.

So it's not "Pedophilia Chic" that we are dealing with here. The "Chic" aspect is the notion that we shouldn't be having sex until the age of 18.

See my past post, which got cited by Andrew Sullivan.
9.22.2005 10:49am
Nobody (mail):
If you keep implying that there is NOT a constitutional right to abortion, then you'll NEVER be the "best libertarian blog."
9.22.2005 12:34pm
Clayton E. Cramer (mail) (www):

Clayton,

Cite? I want to see the case where the ACLU made that claim, and some evidence that was their claim.

The news story detailing the case is here. Contrary to alkali's claim, the dispute involved not only the question of different punishments for homosexual molestation, but also the question of whether it was lawful to prohibit sex with minors.
9.22.2005 1:03pm
alkali (mail) (www):
The ACLU briefing on the Limon case is available here. I don't see any discussion of "the question of whether it was lawful to prohibit sex with minors."
9.22.2005 1:16pm
Clayton E. Cramer (mail) (www):
So it's not "Pedophilia Chic" that we are dealing with here. The "Chic" aspect is the notion that we shouldn't be having sex until the age of 18.
No, the issue is that a lot of adult men want to have sex with children. The homosexual community is remarkable in having a loud advocacy group for this position (NAMBLA), while heterosexual pedophiles haven't managed to get such a high visibility organization backing their goals.

If you want to argue that two 14 year olds having sex shouldn't be a criminal offense, fine, we can talk about this. But defending that there shouldn't be age limits on sex (as Professor Volokh quoted earlier up) is really saying, "Never too young and innocent!"
9.22.2005 1:29pm
Clayton E. Cramer (mail) (www):

The ACLU briefing on the Limon case is available here. I don't see any discussion of "the question of whether it was lawful to prohibit sex with minors."
Try footnote 13 on page 17:
While a teenager’s constitutional rights may be more limited than an adult’s in some circumstances, and while the state is more likely to have a compelling state interest that justifies intruding upon a teenager’s rights, it is well established that teenagers - like adults - have a due process liberty interest in being free from state compulsion in making these types of personal decisions.
Is this clear enough for you?

By the way, contrary to some of the claims being made about how Limon was having a consensual relationship with the 14 year old, read the Kansas Court of Appeals ruling:
Limon, an 18-year-old male adult, and M.A.R., a 14-year-old boy, both resided at a school for the developmentally disabled. M.A.R. told police that Limon had performed one instance of oral sex on him. M.A.R. further told the police that Limon performed oral sex on him until he asked Limon to stop.
Limon also had two previous convictions:
Because of Limon's prior two adjudications for aggravated criminal sodomy, the trial court sentenced Limon to 206 months' imprisonment.
9.22.2005 2:05pm
Eugene Volokh (www):
Arbitrary Aardvark: The Ginsburg report's proposal related precisely to sex crimes on federal territories, the maritime jurisdiction, in Indian country, and the like. There was no federal criminal statute then or now that generally banned rape in state territory. The recommendation, if adopted, would have set the federal age of consent at 12 in many places where there was no state law that could step in to fill the gap -- it would have genuinely legalized sex between adults and 12-year-olds.
9.22.2005 2:43pm
alkali (mail) (www):
The full text of that footnote reads:

"While a teenager’s constitutional rights may be more limited than an adult’s in some circumstances, and while the state is more likely to have a compelling state interest that justifies intruding upon a teenager’s rights, it is well established that teenagers - like adults - have a due process liberty interest in being free from state compulsion in making these types of personal decisions. See, e.g., Carey v. Population Services Int’l, 431 U.S. 678, 684, 693 (1977) (plurality). Laws that burden a minor’s liberty interest must be narrowly tailored to advance a compelling governmental interest unless they advance a 'significant state interest that is not present in the case of an adult.' Id. (rejecting State’s interest in regulating morality of minors by discouraging promiscuous sexual intercourse as justification for prohibiting distribution of contraception to teenagers). That minors are protected by the fundamental liberty interest discussed in Lawrence and Casey does not undermine neutral age of consent laws, which advance the State’s compelling interest in protecting children from sexual abuse. But the existence of that right does require the State to satisfy heightened scrutiny to justify unequal age of consent laws."

That footnote unambiguously states that states can constitutionally enact "neutral age of consent laws, which advance the State’s compelling interest in protecting children from sexual abuse." That is entirely at odds with the proposition "that 14 year olds have a Constitutional right to have sex with adults."
9.22.2005 3:09pm
Jon Rowe (mail) (www):
<i>No, the issue is that a lot of adult men want to have sex with children. The homosexual community is remarkable in having a loud advocacy group for this position (NAMBLA), while heterosexual pedophiles haven't managed to get such a high visibility organization backing their goals. </i>

What a ridiculous interpretation of history. NAMBLA are by in large reviled by the homosexual community and tried to get their foot in the door by riding the coat-tails of gay rights. Some gay groups in charge of the pride parades were dumb enough to let them march and we see the political hay that the antigay right has made of this.

Every single mainstream gay rights organization, as far as I know, has cut their ties to NAMBLA and most never had any ties to begin with.

And maybe there aren't any heterosexual advocacy groups for pedophiles because they don't need one. After all, heterosexual ephebophilia has been so normalized in this culture that adult males in the most socially conservative of times and places were allowed to marry girls as young as 12.
9.22.2005 4:10pm
Clayton E. Cramer (mail) (www):
alkali writes:
Laws that burden a minor’s liberty interest must be narrowly tailored to advance a compelling governmental interest unless they advance a 'significant state interest that is not present in the case of an adult.'
And what is the compelling state interest? There are plenty of people (at least here, although not in the real world) prepared to argue that age of consent laws are set too high--that 12 years old is enough to make these sort of decisions.

Jonathan Rowe writes:
Some gay groups in charge of the pride parades were dumb enough to let them march and we see the political hay that the antigay right has made of this.
Were there any pride parades that rejected NAMBLA before they became a political liability? (If so, it would suggest that homosexual organizations were prepared to distance themselves from pedophiles for reasons of principle, not convenience.) More importantly, as Volokh has pointed out, complete repeal (not revision downward) of age of consent laws was part of the gay agenda in 1972. Many of the leaders of the gay liberation movement back in the late 1970s were explicit that pedophilia was a core part of what they were doing.

Every single mainstream gay rights organization, as far as I know, has cut their ties to NAMBLA and most never had any ties to begin with.
The International Lesbian & Gay Association cut ties with NAMBLA--but only because their UN observer status was threatened unless they did so--and even then, there was a big internal fight for ILGA about whether to expel NAMBLA and a European equivalent. Having voted to expel them, the ILGA then became moribund because its big financial backers were upset about NAMBLA being kicked out.

I'm sure that most homosexuals are not looking forward to the day when they can hang around school yards with boxes of candy to entice little boys into their cars. Still, the "radical homosexual" groups support for NAMBLA; the emails that I still get from homosexuals drawing a distinction between "pedophiles" (those that want to have sex with prepubescent boys) and "ephebophiles" (those that want to have sex with boys who are 12, 13, 14); the ACLU's arguments in the Limon case: all of these tell me that there's a bit more of a problem than Rowe wants to admit.

And maybe there aren't any heterosexual advocacy groups for pedophiles because they don't need one. After all, heterosexual ephebophilia has been so normalized in this culture that adult males in the most socially conservative of times and places were allowed to marry girls as young as 12.
I'm not sure what culture he's talking about. Marriage age in Puritan New England was typically late teens for girls and 20-21 to boys. Some parts of the South have traditionally allowed much younger marriages--and I think the culture is moving away from that, recognizing that this wasn't wise. In the medieval period, marriages (especially royal marriages) were often held much younger, but these were often for political purposes--and such marriages were not sexualized until later.
9.22.2005 4:53pm
Clayton E. Cramer (mail) (www):
A question for alkali: Since the footnote in question is attached to a list of decisions in which the ACLU (through its wholly owned subsidiary, the U.S. Supreme Court) effectively abolished all regulation--why should we assume that the ACLU recognizes any "compelling governmental interest" in keeping minors from having sex with adults?
9.22.2005 4:58pm
Long Gone (mail):
No, the issue is that a lot of adult men want to have sex with children. The homosexual community is remarkable in having a loud advocacy group for this position (NAMBLA),

In which case you should whole-heartedly support Ginzburg. One aspect of the proposed law that is clearly commented on and commended by the report is that it would have created a male/male version of a federal statutory rape crime. The statute as it existed did not apply in such instances. And because the bill did not pass, the acts remained legal for several more years. So here's an interpretation question: those people who opposed or did not support the bill, which did not pass: did they support the legalization of sex between men and boys under 12 in federal jurisdiction? I submit it cannot be said whether they supported keeping such acts legal simply from having opposed the bill. In the same manner, I do not think it fair to say that Ginzburg supported lowering the age of consent to 12, simply because she recommended substituting the bills' language for other purposes. She may have supported such a move, but this is insufficient evidence thereof.

Eugene: I agree with the main point of your last post, that there are jurisdictions for which the law would have legalized consentual sex with a girl aged 12-15. But I think Indian country was not included - age of consent in Indian country was covered in a different provision discussed in the report, and for which no age change was mentioned -- one reason to think perhaps no overarching agenda of change of age-consent was in the minds of the reports' authors.
9.22.2005 5:00pm
Clayton E. Cramer (mail) (www):
Long Gone writes:
In which case you should whole-heartedly support Ginzburg. One aspect of the proposed law that is clearly commented on and commended by the report is that it would have created a male/male version of a federal statutory rape crime. The statute as it existed did not apply in such instances. And because the bill did not pass, the acts remained legal for several more years.
There are poison pills so bad that you have to wait for a better bill. I remember at one point in the early 1980s that Rep. Ron Paul (R-TX, but he used to come to Libertarian Party conventions as an honored guest) received a pile of crap from the holier-than-thou crowd with the LP because he had voted against a bill that would have legalized homosexuality in the District of Columbia. What he told me in a letter was that there was enough other stuff in the bill--including making statutory rape a misdemeanor--that he couldn't vote for it--regardless of the provisions that he liked.

If Ginsburg's goal was simply equality of the sexes, why not just make the existing laws apply to both sexes, instead of setting the age of consent at 12?
9.22.2005 5:13pm
randal (mail):
That's a weak defense Eugene. Why not just admit you were called out and defeated? Quoting something simply doesn't imply full endorsement. Sorry, no dice, and no amount of dissembling is going to get you there.

I like this sentence for getting three nouns in a row: "Eugene wants a sex change operation." Uh oh, here comes the libel suit!
9.22.2005 5:16pm
alkali (mail) (www):
Clayton Cramer writes:


And what is the compelling state interest? There are plenty of people (at least here, although not in the real world) prepared to argue that age of consent laws are set too high--that 12 years old is enough to make these sort of decisions.


The "compelling state interest" the ACLU attorney refers to is the interest in preventing adults from having sexual contact with children. The point the ACLU attorney was making is that it cannot be a compelling state interest to prevent 19-year-old men from having sexual contact with 14-year-old boys if the state thinks it's perfectly fine for 19-year-old men to have sexual contact with 14-year-old girls. You can disagree with that argument if you like, but clearly the ACLU attorney was not disputing whether preventing adult/child sexual contact could ever be a compelling state interest.


Since the footnote in question is attached to a list of decisions in which the ACLU (through its wholly owned subsidiary, the U.S. Supreme Court) effectively abolished all regulation--why should we assume that the ACLU recognizes any "compelling governmental interest" in keeping minors from having sex with adults?


I don't have any idea what the ACLU might hypothetically think. The question was whether the ACLU actually argued in Limon that minors have a constitutional right to have sex with adults; clearly, the ACLU didn't argue that.
9.22.2005 6:00pm
Eugene Volokh (www):
Randal: The Ginsburg report didn't simply "quote" the language that would lower the age of consent to 12 -- it included it as part of its recommendations. It's a fair inference, it seems to me, that when one recommends a proposal that would change the law, one is indeed endorsing the changes that the proposal would make.
9.22.2005 6:16pm
Clayton E. Cramer (mail) (www):
I don't have any idea what the ACLU might hypothetically think. The question was whether the ACLU actually argued in Limon that minors have a constitutional right to have sex with adults; clearly, the ACLU didn't argue that.
They argued that a minor has a liberty interest in not being subject to governmental compulsion on whether to have sex or not. Yeah, there's a possibility that the government could come up with a rationale that would make the ACLU happy, but claiming a liberty interest is asserting a right of minors to have sex.

You will also notice that it wasn't the minor who they were defending here--it was the adult who had sex with a minor. They were using the right of a minor to defend an adult from criminal charges. This is completely irrelevant to their claim of equal protection, because the minor wasn't the one being charged.
9.22.2005 6:40pm
randal (mail):
It's not a fair inference Eugene.

The report explicitly stated the aspect of the quoted language that it was endorsing. As per the rule of construction I mentioned, it's not fair to infer that the endorsement extends to the whole content of the quoted language.

Beyond the fact that a specific endorsement can't be implicitly upgraded to a general endorsement, I'd also argue that a general endorsement can't be narrowed to a specific endorsement of every subclause. I'm sure you've explicitly endorsed a number of pieces of legislation. Would it be fair for me to pull individual clauses out of those bills and say you endorse them? I bet I could find quite a few you'd repudiate.

Finally, all THAT aside, the best you can achieve is a statement that the report is substantially ambiguous - it never delves into age issues. You think it's fair to turn that ambiguity into the factual statement, "Ginsburg endorsed sex with twelve-year-olds?"

You're arguing that it's fair to take someone's specific endorsement of an aspect of legislation, infer that it encompasses a holistic endorsement of the entire legislation, infer further that the implied holistic endorsement extends to every individual clause, and without seeking clarification from the source, go around announcing the alleged endorsement in a negative light. Oh my god that's ridiculous.
9.22.2005 6:42pm
Clayton E. Cramer (mail) (www):
The more I look at this, the more monstrous it gets.

If the ACLU was defending a minor against a criminal charge, this would be at least plausibly related to the question in Limon--but in this case, they were defending an adult against a criminal charge.

There might well be an equal protection argument based an adult's "liberty interest", but the ACLU was defending the adult--not the minor. The minor's "liberty interest" is completely irrelevant to the adult's actions here--especially because the minor apparently said, "No." Perhaps the ACLU's attorney didn't think this through very well--but this is effectively a defense of an adult's right to have sex with a minor that didn't want to have sex.
9.22.2005 6:49pm
Thorley Winston (mail) (www):
When someone puts their name on a report and the report contains recomendations, then it is fair game to ascribe those views to the signer. Unless of course the signer specifically repudiates those views.


I seem to recall a lot of people made similar remarks about Alberto Gonzales and the so-called “torture memos” which were authored by someone else but passed along by him.

What’s good for Gonzales should be good for Ginsburg.
9.22.2005 6:51pm
Salaryman (mail):
Following up on Thorley W’s post I’d be interested on how people on both sides of this issue would think if the ox being gored were, say, John Roberts rather than Justice Ginsburg.

Suppose, for example, that 25 years ago Roberts had co-authored a report on statutory rape laws and how or whether they should be applied to sex between teens. Suppose the report focused on the perceived unfairness of harshly penalizing, say, a 17 year old for having sex with a 15 year old (rather than on any distinctions between gay and straight sex), and concluded that a law providing lesser penalties for sex between teens under the age-related circumstances set forth in the Kansas “Romeo and Juliet” law (the younger teen is between 14 and 16, the older less than 19, the age difference is less than 4 years) was the recommended approach. Suppose that the Roberts report then quoted and recommended Kansas’ Romeo and Juliet law -- including not only the above age-related criteria but the additional statutory criteria “but no gay sex” and “no threesomes, either” -- as an example of the type of law that should be instituted.

Would a charge that Roberts’ recommendation proved he supported discrimination against gays be:

1. A “smear”;
2. An unfair criticism not rising to the level of “smear” (assuming there’s a distinction – I think there is); or
3. A legitimate criticism of Roberts?

It seems to me that the pro-Ginsburg (or perhaps, anti-Volokh) argument is that it’s unfair to bind a person to every word of a statute they use in support of issue “A” – that whatever the statute may say on issue “B” is a different matter entirely. Reasonable enough. The pro-EV forces respond that it is not unfair to expect a skilled lawyer to actually read statutes they cite as examples to be followed and, if the exemplar contains egregious or controversial language (even if not directly on point) to indicate disagreement. Not a loony position either, assuming the statute cited is of a reasonable length.

Let's assume that a statute that says, crudely paraphrased, “rape laws should be gender neutral and it’s OK to f**k 12 year olds” and one which says, also crudely paraphrased, “teenagers should be able to have sex with each other, unless they’re gay, in which case it’s prison for the older one” would appear equally egregious/controversial to the eye of a skilled lawyer.

Under these circumstances is my hypothetical John Roberts a homophobe? (In which case, even handed treatment would probably require that Justice Ginsburg be regarded as a supporter of pedophilia.) Or would criticism of both be unfair? Or (and these responses will be fun to read!) would there be grounds to condemn Roberts and excuse Ginsburg, or vice versa?
9.22.2005 9:12pm
Salaryman (mail):
Following up on Thorley W’s post I’d be interested on how people on both sides of this issue would think if the ox being gored were, say, John Roberts rather than Justice Ginsburg.

Suppose, for example, that 25 years ago Roberts had co-authored a report on statutory rape laws and how or whether they should be applied to sex between teens. Suppose the report focused on the perceived unfairness of harshly penalizing, say, a 17 year old for having sex with a 15 year old (rather than on any distinctions between gay and straight sex), and concluded that a law providing lesser penalties for sex between teens under the age-related circumstances set forth in the Kansas “Romeo and Juliet” law (the younger teen is between 14 and 16, the older less than 19, the age difference is less than 4 years) was the recommended approach. Suppose that the Roberts report then quoted and recommended Kansas’ Romeo and Juliet law -- including not only the above age-related criteria but the additional statutory criteria “but no gay sex” and “no threesomes, either” -- as an example of the type of law that should be instituted.

Would a charge that Roberts’ recommendation proved he supported discrimination against gays be:

1. A “smear”;
2. An unfair criticism not rising to the level of “smear” (assuming there’s a distinction – I think there is); or
3. A legitimate criticism of Roberts?

It seems to me that the pro-Ginsburg (or perhaps, anti-Volokh) argument is that it’s unfair to bind a person to every word of a statute they use in support of issue “A” – that whatever the statute may say on issue “B” is a different matter entirely. Reasonable enough. The pro-EV forces respond that it is not unfair to expect a skilled lawyer to actually read statutes they cite as examples to be followed and, if the exemplar contains egregious or controversial language (even if not directly on point) to indicate disagreement. Not a loony position either, assuming the statute cited is of a reasonable length.

Let's assume that a statute that says, crudely paraphrased, “rape laws should be gender neutral and it’s OK to f**k 12 year olds” and one which says, also crudely paraphrased, “teenagers should be able to have sex with each other, unless they’re gay, in which case it’s prison for the older one” would appear equally egregious/controversial to the eye of a skilled lawyer.

Under these circumstances is my hypothetical John Roberts a homophobe? (In which case, even handed treatment would probably require that Justice Ginsburg be regarded as a supporter of pedophilia.) Or would criticism of both be unfair? Or (and these responses will be fun to read!) would there be grounds to condemn Roberts and excuse Ginsburg, or vice versa?
9.22.2005 9:12pm
randal (mail):
Well, Salaryman, I'm less familiar with the Roberts memos but probably they both should be excused. Failure to repudiate doesn't equal endorsement.

It might equal something less than endorsement, like indifference. But endorsement means intentionally, publicly supporting an idea. You can just ask someone if they endorse something and their answer, by definition, is the end of the matter. Whether or not a person endorses a position can never be controversial - if it is, you can be pretty sure that the "endorsement" was made up by adversaries (or that the person is an opportunist whose waffling has caught up with them).
9.22.2005 9:34pm
Jon Rowe (mail) (www):

I'm not sure what culture he's talking about. Marriage age in Puritan New England was typically late teens for girls and 20-21 to boys. Some parts of the South have traditionally allowed much younger marriages--and I think the culture is moving away from that, recognizing that this wasn't wise. In the medieval period, marriages (especially royal marriages) were often held much younger, but these were often for political purposes--and such marriages were not sexualized until later.


How about this passage from an article by Ronald Hamowy which supports my notion that the norm against adult-underaged minor sex is what is "chic." Keep in mind, I'm not defending adult-underaged sex and generally do support age of consent laws. I'm just attacking the notion that it's the "subversive ACLU" and the "subversive homosexuals" who are trying to overturn this last longstanding of sacred taboos. It's not a longstanding sacred taboo. "Traditional Values" vetted adult-child sex. The modern or "chic" post-60's, sexually modern notion is that it's wrong.


[T]he current crime of statutory rape -- which is not really rape at all -- effectively did not exist throughout most of the [19th] Century since the penal codes defining rape either stipulated 10 or 12 years as the age of consent or were silent on an age of consent, in which case the common law age of consent of 10 years would apply.
9.22.2005 11:21pm