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Sex With 12-Year-Olds in the 1970s:

[UPDATE: The first paragraph below flowed from my misreading of S. 1400, which would indeed have set up multiple ages of consent depending on the age of the other party: It would have legalized sex with 12-year-olds when the other party was less than five years older; made it a misdemeanor when the other party was under 21; and made it seemingly a relatively low-grade felony when the other party was 21 or older. That's still a scheme that strikes as too tolerant of sex with the quite young, but at least it's much more comprehensible than a flat age of consent of 12. And this correction makes the rest of this post rather moot, since it leaves only the NCGO's recommendation, which on its own now seems as simply an outlier. My apologies for the error.]

Whatever Justice Ginsburg thought about the recommendation that the age of consent in federal enclaves be lowered to 12, it seems striking by today's standards that such a recommendation would be offered. Yet in 1973, a Senate bill specifically made this suggestion, and as best I can tell it wasn't a part of a scheme in which there would be one (higher) age of consent when adults have sex with minors, and a lower one when two minors who are close in age have sex. The law would have made it legal for adults to have sex with 12-year-olds in federal enclaves (federal territories, federal admiralty jurisdiction, Indian country, at least in those cases where the tribes didn't have jurisdiction), plain and simple.

Likewise, 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.

Can anyone give me a sense of what was going on at the time? Were these just a few isolated events? Did they flow from a broader sexual revolution movement (even if they didn't represent everyone in that movement, and even if many in that movement would draw the line at consenting adults, or at least consenting teenagers-with-each-other-but-not-with-40-year-olds)? Did they come out of a broader children's rights movement, some branches of which believed in children's sexual autonomy rights? (Naturally others in a children's rights movement may support stronger statutory rape laws; again, I'm not speculating that some movement entirely or largely supported these proposals — I'm just wondering what intellectual stream these proposals flowed from.)

Incidentally, I realize that until recently the age of consent in many states was 14, and that even now it's 14 in some European countries (if this site is to be trusted); and I realize that deciding the proper age of consent is a complex matter. But (1) 12 isn't 14, (2) moving to cut the age of consent isn't the same as maintaining a longstanding low threshold, and (3) I'm not asking what the right age of consent is: I'm curious what was the ideological and political movement (if any) that led to the proposals that I mentioned. If anyone has any pointers on this, I'd love to hear them.

Puberty (mail):
If God had meant for "18" to be the age of consent, then puberty would occur at 18 instead of around 12.
9.22.2005 5:17pm
Ken B:
No this was not so isolated. The Liberal position back then was that incest is not so bad -- check out a Theodore Sturgeon story in Harlan Ellison's SF collection Dangerous Visions, and the intro thereto for a nice pop cultural tie in. And that the age of consent should be a lot lower or abolished. I can remember discussing it! (Related note: in Canada a few years it was lowered to 14 for adult males with boys.) You can see more of it in the pop culture of the 70s: Pretty baby for example.
9.22.2005 5:26pm
Clayton E. Cramer (mail) (www):
Ken B is right. The full extent of the damage done to kids (especially girls, but boys as well) by premature sexualization wasn't clear at the time, and besides, sexual restraint was so 1950s! It was all a leftover from a time when STDs were uncurable, and pregnancy was unavoidable! Hey, it was 1973! Penicillin could cure anything, and the Pill worked so well (better, unfortunately, than the memory of those who were supposed to be taking it).
9.22.2005 5:30pm
Puberty (mail):
I've heard tell that some kids are mature and smart enough to attend college or university at 12 or even younger. I question the desirablity of this policy. A child prodigy who spends most of her time alone studying or almost exclusively in the company of much older students may result in unforseen and possibly deleterious consequences on the emotional development of the child. Are there any people out there who were classified as geniuses as children that can comment?

Also, if the age of consent is dropped to below eighteen, doesn't this infringe on parental rights. If so, how? I'm not a lawyer, so I wouldn't know.
9.22.2005 5:35pm
Larry (mail) (www):
I am unaware of the “full extent” of early sexualization. After all, all I see from my perspective is people whose minds have been destroyed by “abstinence only” education and can’t handle any kind of sex, making for hilarious consequences! There are girls out there now who refuse to have sex with their boyfriends, but only have sex with their ex-boyfriends and then start to cry!

Anyway, since RBG didn’t give me a clerkship I will join in any politically-motivated decrying of her former positions because I can’‘t analyze the real issue in any depth.
9.22.2005 5:42pm
no one:
I believe some blog commenting on this matter (can't remember which one, my apologies to the blogger in question) suggested that lowering the age at the federal level was just a way to keep the feds out of the game of policing the age of consent. That is, if you set the federal floor as low as the lowest state (or alternatively, at the point at which an even lower state limit would be intolerable), you avoid federal/state inconsistencies on enforcement (so conduct outside the federal enclave isn't illegal within it). Don't know if it's true, but it seems plausible.
9.22.2005 5:43pm
AV (mail):
If there's grass on the wicket, take a swing.
9.22.2005 5:46pm
Clayton E. Cramer (mail) (www):
I've heard tell that some kids are mature and smart enough to attend college or university at 12 or even younger. I question the desirablity of this policy. A child prodigy who spends most of her time alone studying or almost exclusively in the company of much older students may result in unforseen and possibly deleterious consequences on the emotional development of the child. Are there any people out there who were classified as geniuses as children that can comment?
I can tell you about my experience--and from what I have read, it has been the experience (in a more extreme form) of many of those who were prodigies in modern times.

I was a bit younger than my peers--just about always the youngest kid in my class, usually as much as six months younger. My birthday was December 5, and the traditional date for school admission at the time meant that the choice was whether to hold me back until next year or not. My mother decided to have me go into first grade a bit early. (I skipped kindergarten.)

At the time, it probably made sense. I was reading at 3 1/2; I was reading high school chemistry textbooks, and getting something out of them, by first grade. Someone who met me when I was age six ran into me twenty years later, and still remembered, in awe, what a brilliant six year old I was. One of my sisters was in high school; she would bring her friends around to listen to me talk, just because I was so smart. In retrospect, I would probably have benefited from going into first grade a year later, when my emotional and social maturity would have been on par with my peers. Perhaps I might have done a bit better in school and on SATs, and made National Merit Scholar.
9.22.2005 5:48pm
Bobbie:
I think it’s also worth mentioning that Mary conceived Jesus when she was close to 13, which was a common age to have kids back then. If it was good enough for God, shouldn't it be good enough for conservatives?
9.22.2005 5:53pm
JW (mail):
Puberty - Do you realize the this site's blogfather graduated from UCLA with a B.S. in math-computer science at age 15?
9.22.2005 5:53pm
NR (mail):
Liberals advocated incest in the 1970's: a short story in a sci-fi magazine establishes that. Liberals also wanted to abolish the age of consent: the movie Pretty Baby establishes that.

In the face of that kind of evidence, I'll guess there's just no way to deny that liberals a bunch of incestuous child-rapers.

Say, maybe Volokh should start compiling a list of liberals, other than Justice Ginsburg, who advocate adults having sex with children. You know, to refute the argument that such people don't exist? I think that would be a great service. And Ken B. has already got us started . . .
9.22.2005 5:56pm
anonymous coward:
Yes, 12 is alarmingly young, and it sure feels like the age of consent shouldn't be lower than 14. But echoing an earlier comment: "The full extent of the damage done to kids...by premature sexualization" is what, exactly?

Suppose there's mounds of evidence that kids who have sexual experiences younger, say, get pregnant at younger ages or are less likely to graduate high school; this evidence may even exist. But is this actually caused by early "sexualization" (whatever that means) or merely correlated with it? Has anyone isolated the effect of early sexual experiences from quality of parents, income, geography, race, etc.?
9.22.2005 5:58pm
Anonymouse (mail):
Puberty-
Although I wouldnt consider myself a prodigy, I took math and science classes in middle school and high school with people 3-4 years older than me or even with adults at the local community college. For me, it much easier to socialize with those older classmates than with those my own age.
9.22.2005 6:05pm
murky (mail) (www):
Perhaps the spiritual physicality of the era, a view of sex itself as sacred and personal, rather than biological, physiological, psychological. A nod to that ethos would be to take government and its impersonal laws out of it. Goes with Roe-era privacy as well, I suppose.
9.22.2005 6:06pm
Clayton E. Cramer (mail) (www):
I think it’s also worth mentioning that Mary conceived Jesus when she was close to 13, which was a common age to have kids back then. If it was good enough for God, shouldn't it be good enough for conservatives?
Okay, go ahead and try to arrest Him.

There's no question in my mind that appropriate age of consent is somewhat determined by culture, average lifespan, onset of puberty. I would agree that the particular age of consent is arbitrary, but that doesn't mean that arbitrary age of consent laws are necessarily wrong.

We set 18 as the age of adulthood for contracts, for buying cigarettes, for buying non-concealable firearms, for voting, and dozens of other aspects of "adulthood." You have to be 21 to buy a handgun, to buy alcohol, to get a concealed handgun license (in most states). These are all arbitrary, and are going to be "wrong" for some people. There are 16 year olds who are mature enough that I would trust them to make contracts; there are 19 year olds (and even some 25 year olds) who don't show sufficient maturity. I have yet to meet a 10 year old that I would trust to make contracts, but I suppose it is possible. Legislatures set these arbitrary ages because they believe that most of those who have reached that age are competent, and that many or most of those under that age are not competent.

Short of having each and every person take a "competent to screw up your own life" test--and grant them full citizenship rights if they pass--I don't see any realistic alternative to these arbitrary age laws. (Then we could argue about the contents of the "competent to screw up your own life" tests.)

Some states (such as Idaho) set the age of sexual consent as 18. Illinois I believe sets it at 17. Some states set it even lower. I am going to assume that the legislature makes this decision based on their own knowledge of local culture and circumstances.

Adding to the complexity of this problem is that many (even most) minors have a profound arrogance about their knowledge of the world and ability to handle their own affairs. Mark Twain's famous remark about the difference between 14 and 21 typifies a lot of kids that age. I've met some very mature 17 year olds--mature enough that I would trust them to make serious, potentially lifechanging decisions. I haven't met a lot of them.

I suppose that it is possible that if our culture were configured a bit differently, we could make large numbers of 14 year olds that were sufficiently mature to make adult decisions. We aren't making them now, however, and I am not going to support any sort of law that makes 12 year old girls and boys open season for predators.
9.22.2005 6:09pm
anonymous coward:
"A child prodigy who spends most of her time alone studying or almost exclusively in the company of much older students may result in unforseen and possibly deleterious consequences on the emotional development of the child."
I suspect it's far more common (in America) for a too-bright kid to be placed with her age group in school, have her curiosity killed by our miserable public education system, and fail to realize her academic potential.

Perhaps the emotional growth in 12 years of being at the bottom of the social heirarchy compensates, however.
9.22.2005 6:11pm
Corey Rayburn (mail):
Feminism has had an evolving relationship with statutory rape laws. In th 19th Century, Western feminists led the effort to increase the age of consent to 18. This reform was primarily designed to protect young women from forced sex. At that time traditional rape law offered little protection to women and statutory rape laws helped fill an important gap.

In the early 70's, however, some feminists began to question how statutory rape laws were being used. They argued that the laws were being used to suppress sexuality among young women. Because feminists were also pushing general reform to rape law, the need for aggressive statutory rape laws was seen as less important. If the general prohibition on rape was properly reformed, then the age of consent (which created an irrebuttable presumption of rape even for consensual sex) did not need to be as high.

Because rape law reform has not been as much of a success as feminists had hoped, there is still a lot of ambiguity about the importance of statutory rape laws.

And, as a side note, the comments on this blog seemed to have devolved to knee-jerk partisan sniping and that is a sad thing.
9.22.2005 6:17pm
Larry (mail) (www):
I sort of like this test: if Eugene Volokh can graduate from college at an age, then the rest of us can have sex at that age.

Oh, and SciFi magazines are definitive proof of legal positions. Not legal briefs.
9.22.2005 6:22pm
Clayton E. Cramer (mail) (www):
Anonymous coward asks:

Suppose there's mounds of evidence that kids who have sexual experiences younger, say, get pregnant at younger ages or are less likely to graduate high school; this evidence may even exist. But is this actually caused by early "sexualization" (whatever that means) or merely correlated with it? Has anyone isolated the effect of early sexual experiences from quality of parents, income, geography, race, etc.?
This is going to be one of the most difficult multifactorial studies that you can imagine--especially because the definition of injury is going to be quite subjective. For example, my son-in-law tells me that at many of the fraternities at the University of Idaho, there is a whiteboard (out of view of most visitors, of course), where members list which girls they have most recently scored with. My daughter tells me that she has been told by health professionals that about 60% of the girls at University of Idaho are infected with HPV (which is spread, surprise, surprise, by sexual contact, and apparently is not stopped by condoms).

There's a clear connection between promiscuity (which does seem to be correlated with premature sexualization, which I am defining as those were under 14 when started having sex) and the spread of HPV. At least some strains of HPV cause cervical cancer. I would consider that to be a bad thing. Others might say that it isn't such a bad thing, especially compared to the lost opportunity to have sex frequently and promiscuously. (Yes, there are people who will defend that idea quite vigorously--that not only abstinence, but even monogamy, are stupid ideas.)

Let me go ahead and be really obnoxious and argue that among the emotional bad effects of premature sexualization is the sense of being used. This new children's book Rainbow Party, depicting middle school kids getting together for promiscuous oral sex, describes what is happening in some parts of America. By seventh grade in Sonoma County (where I used to live), this sort of behavior was very common. The damage that it was doing was pretty obvious, with girls learning that their primary identity was as a sexual receptacle, and boys learning that their primary identity was a "player"--someone whose worth as a man was determined by the number of different girls with whom he had had sex.

This problem wasn't limited to kids. When we moved out of the San Francisco Bay Area, radio stations were beginning to run ads for penis enlargement surgery. The first time that I heard one of these ads, I thought it was a tasteless joke by the DJs. It wasn't. It was dead serious.

There is more to life than sex. As my late father-in-law once explained to my wife, "There are 23 other hours in the day." Unfortunately, the popular culture, with its insistence that girls should dress like sluts in sixth grade, is promoting the idea that sex is the primary activity of life. I guess that I am not surprised that ads for erectile dysfunction now dominate the airwaves.
9.22.2005 6:27pm
Clayton E. Cramer (mail) (www):
I suspect it's far more common (in America) for a too-bright kid to be placed with her age group in school, have her curiosity killed by our miserable public education system, and fail to realize her academic potential.
Then fix the school system. At least when I in school, they pretty quickly figured out which were the smart kids, and which were the dumb ones. There were three classes per grade in my elementary school--and within a few weeks of arriving at my elementary school, I was moved from one of the classes to another--and I stayed pretty much with the same kids all the way through sixth grade. My curiosity was never killed. (I was often lazy, but that's not the same thing.)
9.22.2005 6:33pm
Medis:
I'm no expert on early sexualization (more of a late bloomer, in fact), but I have the impression that in Western Europe, people tend to start having sex earlier in age than in the United States, and that there is a less "repressive" culture with respect to childhood sexuality in general (whatever that means, but I think it includes teaching kids how to use condoms).

Anyway, as I recall, they also have much lower incidences of teen STDs, pregnancies, and abortions. For what it is worth.
9.22.2005 6:38pm
Seamus (mail):
"I think it’s also worth mentioning that Mary conceived Jesus when she was close to 13, which was a common age to have kids back then."

And what exactly is the evidence for this? Is it anything mroe than the assumption that, if most people got married and had their first child at age 13, that Mary got married and had hers at the same age? Mind you, I'm not claiming that she was any older; I'm just saying that the evidence is pretty thin either way.
9.22.2005 6:40pm
anonymous coward:
"This is going to be one of the most difficult multifactorial studies that you can imagine..." Really? I have a good imagination. Okay. Data. STDs are a good thought, but I don't think rates are broken down enough by age to be useful. Anyway, I suspect there probably have been decent studies.

By the way, I would advise extreme skepticism of the supposed epidemic of "rainbow parties."
9.22.2005 6:42pm
I survived the 60's:
Eugene asked a question.
Simple answer, it was not called the Sexual Revolution and Youth Rebellion for nothing. The very quick loosening of sexual mores in the 60's and 70's was very dramatic. It is only a bit of an exaggeration that the shift in the Universities and large cities went from expected prudery to expected libertinism. There are zillions of books on the social and sexual milieu of the time. The references you site were standard liberal, sexual revolutionary tropes.

A quick popular example covering the period would be “Remaking Love” by Ehrenreich
9.22.2005 6:43pm
Medis:
Clayton,

Of course, "premature sexualization" is not quite the same thing as "age-inappropriate sexualization." Indeed, the argument that I have heard with respect to Western Europe (again, take it for what it is worth), is that children there are LESS interested in behaving like adults in a sexual sense precisely because there is no attempt to keep them entirely cut off from age-appropriate sexual behavior.

And just on a gut level, that makes sense to me: if you want a lot of teenagers to smoke, the best thing to do is tell them that smoking is only for adults. So rather than saying that sex is only for adults, why not emphasize age-appropriate sexuality?
9.22.2005 6:44pm
Robert Lyman (mail):
Medis,

Good point, but I suspect Clayton will reply that putting 6-year-olds (or even 12-year-olds) in short skirts, makeup, and midriff-baring shirts constitutes "age-inappropriate sexualization." For my part, I found the images of Jon Benet Ramsey's life incredibly creepy, probably more so than the weird circumstances of her death.

In any case, I don't see why any of this needs to occur in public. If teenagers want to fool around, fine with me, no problem. No reason pop culture needs to exault fooling around as the highest possible purpose in life.
9.22.2005 6:53pm
Puberty (mail):
I asked for comments only if you were classified as a genius as a child - NOT self-classified.

This is the beauty of an open comments section of a blog: social research! We can solicite comments from men and women who were once boys and girls themselves to comment on the devastating impact on their lives of being sucked into the vortex of early sexual abuse. And to balance out the discussion: If you weren't abused, I want to hear about those positive sexual experiences as well. Oh, I'm not simply interested in the salacious details, but in whether or not you, in fact, gave consent (at 12 yrs. of age even), or if you were seduced or coerced into doing something you wouldn't have done had you not been subjected to undue influence or duress by someone older or in a position of power or authority. How did that affect you? Have you gone on with your lives?

I wonder how many first year law students truly understand what "undue influence" means and entails. Until they've experienced it first hand or empathized with someone relating the gory details, I doubt they'll understand fully. Can law professors do better in teaching them? How about requiring their students to write an paper on the subject. It really is that important.
9.22.2005 7:00pm
anonymous coward:
Clayton: "Then fix the school system." You are a funny man. Anyway, my concern wasn't with the normal top 10%-type smart kids, but the top 0.1%, who get shafted in all but the best schools and tend to have problems fitting in with their (age) peers.

On topic: I think Corey Rayburn may have the best answer to Eugene's question above.
9.22.2005 7:01pm
Anthony (mail):
Puberty - a (female) friend of mine was sexually abused by her father when very young, and started having sex, consensually (at least as consensual as it gets at that age) at about 12.

She's currently completing a Master's degree in English Lit, and working at a trainee teacher at a high school nearby, has been financially independent for a while now, and is someone I'd trust to teach and advise my (hypothetical) children. She's also very messed up under her tough and competent exterior, but I won't get into details. I have met people who are as messed up without as much bad history, though.
9.22.2005 7:16pm
UntenuredbutTenureTrack:
I'm looking forward to the book that is undoubtedly coming out of this series of provocative questions from Prof. Volokh!!
9.22.2005 7:17pm
Anderson (mail) (www):
If we're going to mention the Theodore Sturgeon story, let's not omit the title, which is the best part: "If All Men Were Brothers, Would You Let One Marry Your Sister?"

It's more a disguised essay than a "story." Guy lands on planet, finds peaceful human society, discovers Their Awful Secret, &is gradually brought around after initial revulsion.

Also, fyi, the story was in "Dangerous Visions" because it was either rejected as unpublishable elsewhere, or because the author assumed it would be if he submitted it. That was the raison d'etre of the DV anthology.

That does not offhand support the notion that "liberals" as opposed to "radicals" would be represented thereby.
9.22.2005 7:18pm
Clayton E. Cramer (mail) (www):
By the way, I would advise extreme skepticism of the supposed epidemic of "rainbow parties."
I can't go into details without breaking confidences, but I can tell you that at least in Sonoma County, this level of casual sexuality in middle school was quite common. At least the early 1990s side effects (way too many 15 year olds pushing baby carriages around) were corrected.

I asked for comments only if you were classified as a genius as a child - NOT self-classified.
At least when I was a child, that sort of information was not provided by schools to the parents, or to the kids. And yes, I am a member of Mensa (although I may not renew the next time around).

Clayton: "Then fix the school system." You are a funny man.
This would generate less popular opposition than lowering the age of consent to 12.
Anyway, my concern wasn't with the normal top 10%-type smart kids, but the top 0.1%, who get shafted in all but the best schools and tend to have problems fitting in with their (age) peers.
Yeah, they are up a creek, anyway you look at it.

I've lost count of the number of victims of child sexual abuse that I know (by which I mean people whose first sexual experiences were at age 12 and under). They aren't all hopelessly broken, but on average, they are below average in such matters as self-esteem, and ability to function in society. A lot of them are well-educated, and still pretty miserable.
9.22.2005 7:27pm
Cheburashka (mail):
It seems to me that Ginsburg's position was a bit more moderate than all of this. While I think 12 is too young for the age of consent, I'm inclined that the punishment for an act involving a 12+ year old shouldn't be as severe as it would be for a forcible rape, which is all her version of the statute would have done.
9.22.2005 7:35pm
Clayton E. Cramer (mail) (www):
While I think 12 is too young for the age of consent, I'm inclined that the punishment for an act involving a 12+ year old shouldn't be as severe as it would be for a forcible rape, which is all her version of the statute would have done.
The punishments for forcible rape, in my opinion, are generally too mild, especially relative to other crimes. For example, an exhibitionist in California becomes a registered sex offender for life. Should exhibitionism be punished? Sure. Is it as dangerous to our society as forcible rape? No way. The exhibitionist is likely to be an embarrassment in public places, but the damage he does is nothing like the damage committed by forcible rape.

It would be interesting to see how rape became such a trivial felony. It was a capital crime under English law, and it was capital under a number of state criminal codes. Southern states had apparently used the capital punishment for rape primarily against black men; hence the Supreme Court's decision in Furman. To my surprise when I dug through the history of California's rape statute some years back, I was surprised to find that it had never been a capital crime there--it hadn't even been particularly long sentences.

I think some of why child molestation (usually defined as sex with children under 14) is treated with such horror is because it seems "unnatural." Yet forcible rape generates a far less visceral reaction.
9.22.2005 7:49pm
Gary Imhoff (mail) (www):
There has been a massive sea change in social attitude -- and not just since the 1970's. Does anyone remember that rock-and-roll hero Jerry Lee Lewis married his 13-year-old cousin in 1954? It was perfectly legal (well, not perfectly -- his divorce from his first wife wasn't quite final at the time). It did cause a scandal that hurt his career for several years, especially after she had their child three months after the marriage, but today it would cause a nationwide panic, and Lewis would undoubtedly be jailed.

In the last 1950's, in my high school in a conservative suburb, a high school teachers in his early 20's was caught dating a girl who was a high school junior. Again, the reaction was a scandal -- but all that happened was that the couple kept their relationship very discrete until she graduated from high school, at which time they married and moved to another town where, as far as I know, they lived happily ever after. Today, by contrast, the teacher would be arrested and charged with rape, and the girl would be counseled until she agreed that she hadn't experienced love, but exploitation. I'm not sure that this is an advance in sexual morality.

I'm certain that early teen marriage became progressively rarer throughout the twentieth century; it would be interesting to check the census figures. At the same time as teen marriage became rarer, attitudes toward early teen sex became more permissive. Think of Norman O. Brown in the 1960's writing on the polymorphous perversity of children, or think of the photo book "Show Me." That book was a Scandanavian sex instruction manual for children; it consisted of photographs of very young teenagers, both nude and engaged in actual sex acts, with very little text. In the United States in the early 1970's, it was published by a mainstream publisher (I forget which one) and sold in mainstream book stores, with minimal protest and no legal repercussions that I remember. Today, anyone caught still possessing a copy would probably be considered a dangerous pervert and charged with possession of child pornography.

In the past several decades, many sexual behaviors that would have been considered perversions, that were not only taboo, but legally punished, have been legalized and "normalized." Homosexuality, anal and oral sex, and hardcore pornography are now considered socially acceptable. But since the late 1970's the attitude toward young teenage sex has become more and more negative and forbidding. Perhaps society always needs some sexual taboos; if so, sex and marriage with young teenagers have become our society's last taboo. It is perhaps best expressed in the episodes of "Law and Order: Special Victims Unit," in which the detectives work almost exclusively on pedophilia cases, and in which they are portrayed as obsessed fanatics -- and their fanaticism is celebrated.
9.22.2005 7:57pm
Cold Warrior:
Volokh asked:

I'm curious what was the ideological and political movement (if any) that led to the proposals that I mentioned.

Almost as much as some distant century, the currents of political thought in the 1970s are a reminder of the dictum, "The past is a foreign country."

In the early-mid 90s I did extensive research on population policy. I was immediately astonished by the proposals brought forth by seemingly sober and intelligent intellectuals. One volume housed in the Virginia Law Library: the collected papers of a conference on "the population crisis." (Remember, the early 70s was a time when Paul Ehrlich's "Population Bomb" was accepted as Bible truth by all except a few fringe academics like Julian Simon.) One completely serious proposal discussed: would the United States have the power to mandate birth control or even abortion when a woman had already given birth to two children? The answers were all over the place, but even the most "conservative" participants viewed the question as requiring a sliding scale. The more urgent the situation (impending starvation), the greater the Government's power to intervene to defuse the population bomb. No steps -- not even forced abortion -- were considered as clearly beyond the pale by any of the participants.

I often use this example when faced with modern-day conservatives who scoff at "invented rights" including the so-called "right to privacy." O.K., I say. You're correct. There is no such "right" in the Constitution. And in these times maybe certain states -- Utah, Alabama, others -- should be able to implement the will of their people by banning abortion. But what if other states (California in the 1970s?) had gonet the other route and mandated abortion for would-be third children? Could they do so without running afoul of the Constitution. The conservatives invariably say, "of course not." But why not? Where does the Constitution say the state cannot mandate birth control or force abortion if the people of the state believe runaway birth rates endanger the very survival of the planet?

O.K., I'm still waiting for my conservative friends to answer ...
9.22.2005 8:02pm
David Berke:
Puberty,

Can you really expect a meaningful response to your "Classified as child geniuses" request? Someone relatively normal probably isn't going to want to go on record as claiming how brilliant they are. Someone who is so inclined to profess their own brilliance is as likely to be lying as telling the truth, and probably does not reflect the orindary experience in any case. Accordingly, there's going to be a pretty serious self selection problem with your question. Genius is also ambiguous, as that can represent a minimum IQ anywhere from 135 (Statistically, the top .5% I think) to 160 or more.
9.22.2005 8:04pm
Been There Done That:
The sense in the 1970s, in the wake of the sexual revolution, was that absent disease and unwanted pregnancy, consensual sexual activity was a healthy and good thing. It was thought that there were no other good reasons to refrain from consensual sexual activity.
9.22.2005 8:09pm
Razon Lemur (mail):
"By the way, I would advise extreme skepticism of the supposed epidemic of "rainbow parties."
I can't go into details without breaking confidences, but I can tell you that at least in Sonoma County, this level of casual sexuality in middle school was quite common. At least the early 1990s side effects (way too many 15 year olds pushing baby carriages around) were corrected.


This is a bit of an aside, but there's a big difference between casual sexuality and a so-called "rainbow party." Kids having sex at middle school age is perhaps lamentable but not really all that unexpected; the incidence of "rainbow parties" is both far worse and laughably unsupported by any actual evidence. Let's focus on what's actually out there, not hysterical media-induced "trends".
9.22.2005 8:23pm
Bob Flynn (mail):
Interesting topic, a little frightening for those of us, who have young children.

Clayton Cramer makes the most persuasive points. Sure, it may sound corny, but the (over)emphasis on sex, at the expense of love, has had disasterous effects on our society. It doesn't take a prude to connect these disasterous effects to the stratospheric increase in unlimited abortion, unlimited birth control, unlimited sex education, unlimited sexually-transmitted disease, unlimited divorce, unlimited latch-key kids, unlimited broken families.

There is also the pervasive loneliness and despair in the Sex and the City crowd -- I swear at least 80% of my wife's friends are all on these anti-depressant drugs, bemoaning the dearth of suitable men to sweep them off their feet as they approach age 40, where the future ain't so bright.

Now, of course, sexual activity is one of the few areas exalted by both Darwinists and God-fearing folks, because (a) it's fun and (b) it propagates the civilization.

But, I submit that a little modesty, humility, perhaps even a re-emphasive on courting, dating, good manners and, dare I say, hold-handing in the park, even when your buddies scoff, might breed a little more joy in this world.
9.22.2005 8:31pm
Bruce Wilder (www):
To actually answer the original question: I believe that the general "politics" or "ideology" was NOT pro-incest or pro-child abuse. That's just snarky slander, by right-wing smart asses. People were pretty shocked by child abuse, then, as now; both Left and Right were in denial about the extent to which child abuse was being covered up, while the Left was troubled by the discretionary use of statutory rape and sodomy laws to persecute people, or, in other celebrated cases, to fail to prosecute.

I think the fair-minded might note that a liberal/left worldview both likes the general immunity of the privacy argument, and tends to fear abuse of discretion by authorities -- the left can be counted on to criticize whatever the authorities do, whether it is to prosecute or not. Liberal/left policy arguments on this kind of subject are often informed by celebrated cases and campaigns, which form little part of right-wing memory.

Sexuality, in the 1950's, was subject to a monolithic and authoritarian legal scheme, which forbid all sexual intercourse outside of marriage, and heavily regulated contraception and all information about sex. Most of that regime was swept away in the Sexual Revolution of the 1960's. To be chronologically precise, the Sexual Revolution as a legal and cultural "event" spanned a generation (20-25 years), centered on 1967, with most changes occuring between 1961 and 1973. Change was massive and radical, across the whole culture and institutional structure.

The general repeal of State laws regulating non-marital sexual intercourse became a liberal/left cause in the 1950's. Conditions of employment, which referenced marital status, highly restrictive "morals" clauses in professional licensing and the like were targeted, as well as State criminal laws, and restrictions on the content of books and movies.

The State model penal code proposed in 1956? and first adopted by Illinois in 1964, deleted sodomy, fornication and adultery laws. I would think the progressive consensus of model penal law convention debates of the 1950's would tend to form the foundation of liberal/center views on age of consent, even well into the 1970's and 1980's. Laws restricting access to birth control, making divorce difficult and expensive, or Draconian penalties for sodomy were a target in the 1960's; sodomy carried higher penalties in some States than arson, and, of course, prosecution was highly selective. The potential for blackmail as a result of adultery and divorce laws in the 1950's and early 1960's were popular cultural themes. To a much smaller extent, the potential of sodomy laws to breed blackmail received attention in the 1960's.

Leftist concern with the age of consent came amid a heady sense of liberation from an extremely oppressive regime of sexual regulation. The potential for abusive, selective prosecution in the service of the ancien regime was a prime concern of the moment in the late 60's and early 70's. Particular celebrated cases or (sometimes fictional) nightmare scenarios of authoritarian abuse, along with the headiness of general liberation, drove views. (A real conservative backlash or counter-revolution did not emerge until the mid-1970's, and, it concentrated on abortion and marijuana and gays, and largely ignored sex.)

So, the hot issues on age of consent had to do with attempts to use age of consent or sodomy laws to criminalize "natural" or socially "harmless" activity. So, the potential for a case, where a 15 year old boy could be prosecuted for a major felony for having sex with a 15 year old girl would be an issue. A case where a 18 year old man could be prosecuted for having sex with a 16 year old girl, but a 30 year old woman could not be prosecuted for seducing a 15 year old boy could both be regard as unjust. I note, "as best I can tell it wasn't a part of a scheme in which there would be one (higher) age of consent when adults have sex with minors, and a lower one when two minors who are close in age have sex", but, honestly, that would be what I recall as being the central concern and objective of the liberal left on age of consent, not some bizarro desire to liberate teenagers to join the Summer of Love.

Gay liberation came late to the Sexual Revolution, and was initially prompted more by police (mis)conduct, than by seldom used sodomy laws or even pervasive employment discrimination. Vice squads, which targeted pornography, transvestites, prostitutes, public restrooms and gay bars met with increasing resistance in the 1960's. Any Gay Liberation document from 1972 ought to be read in a context in which the discretion of authorities was viewed with justified, extreme suspicion and hostility. The leadership of Gay Liberation circa 1972 was composed of people from the margins, who had taken up small-scale protest as a hobby in an era in which protest was a common leisure activity. Their formative experiences as leaders of gay liberation might center on ending a vice squad entrapment and blackmail scheme, or arguing with a police chief over whether he could arrest all 300 people, who showed up for a gay pride parade. There was no "Gay Establishment" in 1972, because there was still very little economic foundation for one: Legal pornography was a novelty in 1972; a legal gay bar was still an extreme rarity; the gay press, an infant not far from the mimeograph; the vast majority of gay professionals and business people were still in the closet. We are talking about a numerically small and eccentric group, with few economic resources and a very short institutional history together; no great deliberative group process underlay anything they wrote or said. That what they wrote has been preserved and studied is a testament to the huge surge in institution-building that occured in the 1970's and 1980's, which we take for granted today.

A different age of consent for homosexual activity, selective use of sodomy laws, or general prohibitions on trivial or private homosexual behavior, were issues. (Illinois repealed its sodomy statute in adopting the model penal code in 1964, but kept a prohibition on gay solicitation, making it legal to do, but illegal to ask; and, yes, the Chicago vice squad regularly entrapped people after 1964.) A frontier issue for Gay Liberation in the 1960's and early 70's was whether there could be a gay bar; in the mid-1970's, it was whether same sex couples could dance, or touch while dancing, in a bar.

Gay liberation did have to purge a small number of "Man-Boy love" types in the 1970's, but, really, there was not much hestitation about that, even as the left side of the movement self-consciously embraced transvestites, bisexuals and transsexuals, as a way of tormenting the right side of Gay Liberation. A really assiduous, and ruthless, researcher could no doubt find some "embarassing" material, which stemmed from the ultimately unsuccessful attempts of "Man-Boy love" types to become part of institutionalized Gay Liberation and to drive its agenda on the age of consent, as well as attempts by the conservative backlash, which emerged in the mid-1970s, to tar Gay Liberation as an alliance of child molesters.
9.22.2005 9:20pm
DanB:
Where does the Constitution say the state cannot mandate birth control or force abortion if the people of the state believe runaway birth rates endanger the very survival of the planet?

I'm not a conservative, but there are good arguments that mandatory birth control violates free exercise of religion and mandatory abortion violates due process (by executing a person without trial).
9.22.2005 9:25pm
Wince and Nod (mail) (www):
Well, I would like to reestablish laws against adultery. Adultery does intolerable harm, and making adulterers pay a $500 fine and spend a week in jail seems like a good idea to me. It isn't a privacy issue either, it's fraudulently breaking the marriage contract.

Yours,
Wince
9.22.2005 9:41pm
Anonymous Data Point (mail):
OK, "Puberty" (if that's your real name), I'll satisfy your rather strange criteria for comments; although I must say I don't know how you expect to believe evidence which consists of a blog posting. But here's a data point, for what it's worth. I'll sprinkle a couple facts in, but not enough to break my anonymity.

I (US born male, now 38 y.o.) was early on noted as being intellectually advanced, and was "officially" IQ tested by a state university psychology department in Michigan. This was at the age of 9 and I scored 186. Seriously; this of course is an extremely high genius score no matter the scale. I was in due course enrolled in public college, also at the age of 9. My classmates were typical college-age students in a midwestern town.

As far as the other half of the question: other than some very occasional first-to-second-base type sexual activity as a late teenager (with girls my own age), I remained abstinent until my marriage at age 25 to a woman close to my own age. I'm still married to the same woman, monogamous, heterosexual, and have multiple children.

There is your single data point. Not a very big sample population; do with it what you will. But certainly my own experience does not show that early college had any influence on early sexualization for me.
9.22.2005 9:48pm
Anderson (mail) (www):
Well, I would like to reestablish laws against adultery.

Mississippi is one of only a few states, iirc, to maintain the tort of "alienation of affection," which allows a spouse to sue the 3d party. Not quite what you had in mind, but an interesting option.

Criminal adultery? I think not, being either biased or experienced. I was the "other man" in an affair many years ago. Her husband was gay, tho it took a while for her (&him) to realize this. So I think he was probably a little relieved. But should he have been able to press charges? have his wife, or me, thrown in jail?

There are wise, prudent reasons for keeping the State out of messy situations like adulterous relationships. Every unhappy marriage is unhappy in its own way, you could say. Relationships need to be able to work their issues out without anybody's calling the cops, so long as nobody's getting beaten up.
9.22.2005 9:52pm
TomFromMD (mail):
"I think it’s also worth mentioning that Mary conceived Jesus when she was close to 13, which was a common age to have kids back then."

According to whom?
9.22.2005 10:09pm
arthur (mail):
Historical perspective: one of the ACLU's greatest concern in the early 1970's was racism in the legal system. This wasn't long after Loving v. Virginia. It was also the era of inccreasing integration in public schools, creating more mixing of the races among the young dating population. Prosecutors were using statutory rape laws and sometimes fornication statutes to re-criminalize inter-racial dating, inevitably leading to the Black male serving time. Taking the federal prosecutors out of the enforcement of what were effectively anti-eiscegenation laws made sense.
9.22.2005 10:43pm
Jon Rowe (mail) (www):
Maybe they got the idea from the common law. Apparently, the age of consent at common law is 10 years old.

From an article by Ronald Hamowy:


[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.


I'm not defending adult/underaged sex. And I in fact agree with much of what Clayton Cramer says in terms of the "harm" suffered by minors who have sex with adults.

I'm just attacking the notion that this is the "subversive ACLU" and the "subversive homosexuals" who are trying to overturn this one last longstanding sacred of taboos. The notion that we shouldn't have sex until the age of 18 and that adults shouldn't have sex with those under 18 is what is "chic." This is the modern notion of post-60s sexual modernity. Traditional Values, for the most part, vet adult-underaged teen sex.
9.22.2005 11:31pm
Bleepless (mail):
The latest research shows that the very last part of the brain to mature is that dealing with judgment. It becomes fully developed at age twenty-five. Anything involving judgment -- sex, voting, contracts and so on -- should be regulated or banned before then.
9.22.2005 11:31pm
Cheburashka (mail):

I'm not defending adult/underaged sex. And I in fact agree with much of what Clayton Cramer says in terms of the "harm" suffered by minors who have sex with adults.

I'm just attacking the notion that this is the "subversive ACLU" and the "subversive homosexuals" who are trying to overturn this one last longstanding sacred of taboos. The notion that we shouldn't have sex until the age of 18 and that adults shouldn't have sex with those under 18 is what is "chic." This is the modern notion of post-60s sexual modernity. Traditional Values, for the most part, vet adult-underaged teen sex.


I think that's an extremely important insight.

It seems to me that the sexual revolution was about making sex a realy, realy, important and even central part of one's life, when historically (and to the founding fathers) it had no such extraordinary role in life, identity, or culture. It was just an ordinary part of life.

Today, we've decided that it defines who you are - for good or ill.

(I, too, am not defending pedophilia. I'm just saying there's more to life than sex.)
9.22.2005 11:46pm
Bruce Hayden (mail) (www):
Someone way up above asked why actual rape itself has become so lightly punished. One theory may be that feminists in recent years have been trying to broaden the term to include conduct that in earlier days would not have been considered rape. For example, date rape. The couple is necking. A lot of heavy petting. He gets quite turned on. She quits resisting. They have sex, and the next day, she accuses him of raping her. The feminist might support this by pointing out that she didn't say "yes" - and give actual consent.

I find this sort of thing far different than the rapist going around Boulder awhile back, sneaking into women's apartments, and forcibly raping them. But a lot of the laws really don't distinguish between them. You clearly don't want to send the guy away for 20 years who did what millions of other guys have done when their dates quit resisiting. And I don't think that you want to mark him for the rest of his life as a sexual preditor. Most guys like that aren't.
9.23.2005 12:25am
Christine (mail):
Cold Warrior asked:

Where does the Constitution say the state cannot mandate birth control or force abortion if the people of the state believe runaway birth rates endanger the very survival of the planet?

O.K., I'm still waiting for my conservative friends to answer ...


Interesting question. I assume the Due Process Clause of the 14th Amendment would prohibit such legislation, based on the right to privacy. Roe was based not so much on a right to privacy as on a right to autonomy—that is, freedom from government interference. Just as the government may not force a woman to carry a pregnancy to term, the government may not force a woman to terminate her pregnancy.

The Due Process clause also comes into play with the mandatory birth control. And if the legislation was directed only at women, then equal protection concerns also arise. Not to mention First Amendment free exercise of religion concerns, as orthodox Roman Catholics believe contraception is immoral and, in certain cases, acts as an abortifacient.
9.23.2005 12:27am
Billll (mail):
Most lawmakers, I suspect, would set the age of consent low enough to keep themselves out of jail.
9.23.2005 12:56am
Clayton E. Cramer (mail) (www):

Mississippi is one of only a few states, iirc, to maintain the tort of "alienation of affection," which allows a spouse to sue the 3d party. Not quite what you had in mind, but an interesting option.
In Idaho, it is actually a misdemeanor. See Idaho Code 18-6601:

18-6601. ADULTERY. A married man who has sexual intercourse with a woman not his wife, an unmarried man who has sexual intercourse with a married woman, a married woman who has sexual intercourse with a man not her husband, and an unmarried woman who has sexual intercourse with a married man, shall be guilty of adultery, and shall be punished by a fine of not less than $100, or by imprisonment in the county jail for not less than three months, or by imprisonment in the state penitentiary for a period not exceeding three years, or in the county jail for a period not exceeding one year, or by fine not exceeding $1000.
I don't know how often it is actually prosecuted. An acquaintance had to worry about this a while back (along with possible prosecution for forcible rape). As it happened, the putative victim was so sloshed that it appears that the DA concluded that the forcible rape prosecution was going to be impractical. "Were you raped?" "I don't know. I don't remember the whole evening." He didn't remember anything past her stripping off her clothes and the heavy necking.

His marriage ended in divorce. So much goes wrong when you get drunk.
9.23.2005 1:11am
Clayton E. Cramer (mail) (www):
Razon Lamur writes:

This is a bit of an aside, but there's a big difference between casual sexuality and a so-called "rainbow party." Kids having sex at middle school age is perhaps lamentable but not really all that unexpected; the incidence of "rainbow parties" is both far worse and laughably unsupported by any actual evidence. Let's focus on what's actually out there, not hysterical media-induced "trends".
What would you call a situation where several eight graders get together for orgies--and the father doesn't ever go into that room to avoid violating the privacy of his son?
9.23.2005 1:12am
Penta:
A random question.

A local priest (Albert Liberatore, in case one wants to Google; Creepily, he taught two of my classes) was convicted in Manhattan of Sodomy in the First Degree and 2 counts of Sexual Assault in the First Degree for (taking from the Manhattan DA news release on arraignment) "for bringing a Pennsylvania teenager to a hotel at Washington Square Park in May 2002 and sexually assaulting him during the night". He got 10 years probation in Manhattan.

Also, he got 5 years probation here for fondling a then 17-year-old boy and giving him alcohol (though he met the boy when said boy was 13, so may have gone on longer)...But avoided having to register as a Megan's Law offender.

So some quick questions:

1. How the hell did he avoid Megan's Law?

2. *Probation*??? What the?

Any legal types want to try and explain this one to a non-legal type like me?
9.23.2005 1:23am
James A. Donald (mail) (www):
Well I rememember the seventies in Australia. Sex with twelve year olds was no big deal. Seems to me that all my life, people have been getting more and more uptight about youthful sex, and about sex between older men and younger women. And as one of the posters above has pointed out, age of consent used to be ten years old, back in an era when the age of puberty was nearer sixteen, so I guess the same trend was in effect before I was born. Age of consent has been going up and up, age of puberty going down and down. Seems to me it was pretty silly when they passed each other, which happened round about the seventies in Australia, and about the time Jerry Lee Lewis married his pregnant thirteen year old cousin in America.
9.23.2005 1:52am
lucia (mail) (www):
I think the chart may be a bit misleading in one sense.

The listed age of consent appears to apply only to unmarried children, but in some cases, the law permits children to marry.

For example the chart lists the age of consent in Texas as 17; that is correct. That is correct. However, it is possible to marry at the age of 14 in Texas. In that case, the 14 year old child may consent to have sex with their spouse.

See Texas statute
§ 21.11. INDECENCY WITH A CHILD.

And Another statute
§ 2.102. PARENTAL CONSENT FOR UNDERAGE APPLICANT.
9.23.2005 2:10am
Anthony Argyriou (mail):
There's an interesting case from Nebraska, where a 22-year-old man married a 14-year-old girl in Kansas, where marriage at 14 is legal with parents' consent. However, in Nebraska, sex with a person under 16 is statutory rape, even if the couple is married.
9.23.2005 4:03am
Robert Schwartz (mail):
I was in law school 1972-75. I do not recall this as an issue. I would suggest looking at the ALI projects on a Model Criminal Code from that era, which might give you a better perspective.
9.23.2005 4:09am
Phil (mail):
Cold Warrior and Christine
I think that the Supremes have already addressed the mandatory abortion hypo in a way, though in a very different context. Winston V. Lee, 470 U.S. 753 (1985) states that to forcibly violate bodily integrity (right to be secure in your person) via surgery requires much more than a significant governmental need (evidence of a felony). Similarly, a simple desire by a state to control population probably would not be enough. Laws banning abortion do not (necessarily) run afoul of such an analysis because, in a sense, they are protecting bodily integrity. For instance, murder is a crime even if the victim consents, at least so far.
N.B. if the state had some overwhelming interest, it might be able to satisfy these strictures. For instance, a horrible plague only spread by infected women in their second trimester of pregnancy.
Of course, also note well, that this gets us back to actually talking about the analysis of the text and structure of the constitution, e.g., the right to be secure in your body from unreasonable seizure, rather than trying to figure out what "privacy" means in light of the latest decison from the North Korean Supreme Court
9.23.2005 4:21am
Bruce Hayden (mail) (www):
I think that someone above pointed out that maybe part of the problem is that we keep pushing the age of maturity up. Another poster pointed out that Mary, mother of Jesus, was somewhere around 13 or 14 when she became pregnant. And right above me here, Lucia is pointing out that with parental permission, kids can get married at 14 in Texas. Appears to be something similar in Utah, which is being abused these days by polygamists.

A hundred or so years ago, girls routinely got married at that age. Boys comperable or a year or two older. Scary to me as the father of a 14 year old girl. But an 8th grade education was more than many got - so what do you do when girls are relatively sexually mature and done with their schooling?

Today, things are far, far, different. The girls may be twice that age before they are married. The boys even more so. They all got to college, graduate (hopefully) at 21-22, maybe get an advanced degree, getting out then at 24-26. Working a couple of years, and then trying to settle down (apparently, a lot of the guys are still not ready then).

So, we stretch out their youth. Instead of being considered adult at 14, they are legally now only 2/3 of the way there by then for a lot of things. By the time they are 21 and old enough to drink today, they would have had a bunch of kids back 100 years ago - if the girls hadn't already died in child birth.

The thing is, societally, we really have to be doing this delaying of maturity. Without it, we can't expect our kids to get the types of educations that they need in today's hightly technical society. If they are marrying, or having kids, at 14, they are much less likely to graduate from college, and, even less, to get the preferred graduate degrees.

Part of this delaying of maturity is that we delay their sexuality as much as we possibly can. Girls, who in a different generations, would have been married at 14, are not expecting it for a decade at least, and so are trying to say virgin as long as they can. Instead of thinking about whom they are going to be marrying this year, they are pushed to concentrate on school and not on sex - and a lot do (mostly). So, as a result, there is an naivity with a lot of these kids that wasn't there a hundred years ago, and societally, we need to push that, to protect them from that. Because there is a societal interest in maintaining that naivity.

So, we raise the drinking age to 21, ditto for owning a hand gun, getting a concealed weapons permit, etc. The idea that a buy couldn't own a gun until 18 would have been absurd 100 years ago, when by then he often would have had a wife and a couple of kids to protect and feed. And, most importantly here, we raise the age for sex. The age that kids can marry and the age of consent.
9.23.2005 4:47am
Duncan Frissell (mail):
The earlier age of consent (10 at Common Law) and age of marriage in the past was obviously related to the absence of the concept of adolesence. Childhood was followed immediately by adulthood.

I always used to read the "age of marriage" table in the World Almanac (12 in Kansas? with parental and judicial consent).

Having a young age of marriage was also consistent with the regulatory scheme of the pre-modern era. All sex was illegal outside of marriage so it didn't matter what the age was. Once states started legalizing most sex (the California sex decriminalization statute took effect January 1, 1975 just in time to welcome certain immigrants) the government/people had to decide where the new boundaries would be. They tended to establish bright line age tests and raise the age of consent (often with Romeo &Juliet exceptions). They expanded rape laws (elimination of husband's exemption), rolling rape into sexual assault, and creating new graduated types of sexual assault. Paradoxically, they tended to eliminate the term rape (as sexist) in the case of adults but turned "statutory rape" into "child rape" in the case of children.

The movement to reduce the age of consent in the '60s and '70s was clearly part of the general movement to liberalize sex laws before that movement established a new equalibrium after overthrowing the prior system.
9.23.2005 7:57am
Medis:
Bob Flynn,

Again, I direct your attention to what I believe is true of Western Europe: they are less repressive of childhood sexuality (including having much more frank and non-abstinence based sexual education), and yet have much lower rates of teen pregnancy, STDs, and abortions than we do.

And also again, the general idea that we can suppress the ill effects of teen sex by trying to reserve sex for adults strikes me as something every parent of a teen should know won't work.
9.23.2005 9:04am
Public_Defender:
I couldn't track down the links to see the actual bill. It's possible that they were moving the age to 12 for "rape," but making it a lesser crime (codified in another section) for an adult to have sex with a someone, say 12-16.
9.23.2005 9:40am
Bill H.:
I have only skimmed the comments, but I did not see anything much about the history of the protection of children, which is not nearly as ancient as some may assume.
When I began as a hospital attorney in 1979, it was still a struggle to get attention paid to child abuse. Mandatory reporting laws had only recently been enacted. There was no generally public notion that children were being sexually victimized by adults, family memebers or otherwise.
Sexual liberation was at its apogee in the early 70's. Concern about the protection of children from sexual abuse was only beginning to appear on the distant horizon. The paradigm that drove the efforts to lower the age of consent simply did not include predatory uncles.
9.23.2005 10:27am
Cardinal Tony Bevilacqua:

EV - Can anyone give me a sense of what was going on at the time? Were these just a few isolated events? Did they flow from a broader sexual revolution movement (even if they didn't represent everyone in that movement, and even if many in that movement would draw the line at consenting adults, or at least consenting teenagers-with-each-other-but-not-with-40-year-olds)? Did they come out of a broader children's rights movement, some branches of which believed in children's sexual autonomy rights?


We were behind it. Part of the cover-up.

Nothing to see here, move along.
9.23.2005 10:40am
Cold Warrior:
Christine said:

I assume the Due Process Clause of the 14th Amendment would prohibit such legislation, based on the right to privacy. Roe was based not so much on a right to privacy as on a right to autonomy—that is, freedom from government interference.

My point exactly. And that's why my conservative-baiting tends to be effective. Traditional conservatives aren't so different from orthodox liberals it seems. Both are appalled by the notion that the State could do certain things that violate the personal/bodily integrity of the woman, it's just that the things that appall them are different: forced contraception/abortion (conservative) vs. forced pregnancy with no right to abortion (liberals). Call it the "right to privacy" or whatever you wish. Both sides will divine such a "right" in the Constitution; it all depends on whose ox is getting gored.

Phil said:

if the state had some overwhelming interest, it might be able to satisfy these strictures. For instance, a horrible plague only spread by infected women in their second trimester of pregnancy.

What about a global scientific consensus that overpopulation threatens the very survival of humankind? That's where we were as a society c. 1972. (By the way, I think that's been proven wrong).

And what do you make of Buck v. Bell? (Holmes upholding mandatory sterilization of the mentally disabled -- broadly defined -- because, after all, "three generations of imbeciles is enough.") The State's interest in eliminating future generations of mental defectives is strong enough to support mandatory sterilization. The case is, presumably, still good law. Unless it's been overturned by Roe v. Wade, that is. But would my conservative friends -- who argue that Buck v. Bell should no longer be considered good law -- agree that Roe is now a correct statement of the constitutional right to privacy? I think not.

In the research I did in the 90s, I looked to international law as an alternative source to shoot down Buck v. Bell (or China's population policy). The "right to marry and found a family" is found in numerous U.N. declarations and arguably is part of customary international human rights law. I assume Justice Scalia wouldn't approve, but I also assume he doesn't think Buck v. Bell is good law. So why not? If the latter is true (that Buck v. Bell is no longer good law), presumably the "right to privacy" cases are what overturned it.

So now you see the conundrum. And you see why I love looking back at what I'll call "70sThink." I was too young to remember it when it was happening; looking at it today, I hardly recognize 70sThink as part of my intellectual heritage.

[In case nobody's noticed, as a libertarian I find Roe to be a generally correct statement regarding a woman's personal sphere of liberty (albeit rather poorly reasoned by the S.Ct.), and Buck v. Bell to be a rather appalling violation of that sphere. That's why I hope Randy Barnett's alternative approach to liberty catches on.]
9.23.2005 10:49am
Ken B:
Sigh. There always seems to be so much willful misreading.

Eugene asked out of curiosity if Ginsburg's proposal was an oddity, or fit with any ideology of the time. And the answer is, it wasn't so odd, and attitudes -- especially 'liberal' ones -- were quite different. I gave a couple of examples from pop culture. Somehow this is taken as arguing that 'all liberals believed this because of a science fiction story.' That is willful misreading. I said attitudes WERE different and you can find the fossil evidence not just in legal briefs but also in pop culture.

An analogy. If I cited Amos 'n Andy shows from the 50s as evidence of racism in Hollywood, would it be sensible to argue 'Ken B says everyone in Hollywood was a bigot because of a TV sitcom'? But Amos 'n Andy is till pretty good evidence of past attitudes.
9.23.2005 11:44am
James Kabala (mail):
Bruce: The age of marriage has fluctuated quite a bit over the centuries. In early modern Europe, the average age of marriage was actually in the mid-twenties, about the same as today. In the British colonies in American it was somewhat lower (around twenty), but much highter than fourteen. Contrary to our stereotypes about Loretta Lynn-style marriages at thirteen in the boondocks, if a girl was married in her mid-teens, she was most likely to be from the upper classes, where she might be married off early in order to create a dynastic alliance with another noble family.
In the late nineteenth century to which you allude, the average age for marriage in the U.S. was in the early-to-mid twenties. After this, it began to steadily decrease. In the 1950s in the U.S., when the average wedding age for woman was in the late teens, this was actually the lowest it had been in quite some time. After this decade, the average age began to increase again, to its present position of 25 for women and 27 for men.
There have been cultures where teenage marriages were ubiquitous, but contrary to a widely held view on all parts of the political spectrum, this has not been true in the West for centuries.
Another point worth making is that, for reasons that are still not fully understood, the average of puberty has also been decreasing over the last century or so. Thus, a fourteen year-old girl of a century ago might not even have had her first period yet, which would be highly unlikely today. A lot of our modern sexual problems may, I believe, have part of their roots in the lowering age of puberty, which, it frightens me to say, is still decreasing. Among many present-day Americans, especially blacks, first periods are starting to come as young as ten.
Finally, twenty-one has been the generally recognized age of majority in English and American common law since medieval times - maybe not for buying a gun, but for things like voting, inheriting property, etc. Only over the last half-century has the age of majority been reduced to eighteen in certain areas. It is undoubtedly true that the concept of adolescence and being a "teenager" is of recent vintage, but that doesn't mean that our ancestors believed that full adulthood came at twelve or fourteen.
9.23.2005 11:54am
Clayton E. Cramer (mail) (www):
But what if other states (California in the 1970s?) had gonet the other route and mandated abortion for would-be third children? Could they do so without running afoul of the Constitution. The conservatives invariably say, "of course not." But why not? Where does the Constitution say the state cannot mandate birth control or force abortion if the people of the state believe runaway birth rates endanger the very survival of the planet?
I suspect that the only real protection against something like this is democracy, or revolution. I can think of all sorts of equally outrageous laws that would almost certainly pass Constitutional muster. For example, if a state made it unlawful to defend yourself, I have no question that the courts would find that the U.S. Constitution was not a barrier. Most state constitutions have a right to self-defense written into them (even California, Art. I, sec. 1), and this might be the best hope.
9.23.2005 11:59am
NR (mail):
Ken B., I read your comment very carefully. You said that the "Liberal position" in the seventies was that "incest was not so bad" and "the age of consent should be a lot lower or abolished." In support of this provocative claim, you cited one sci-fi short story about incest and one movie about a child prostitute, neither of which obviously condones incest or abolishing/lowering the age of consent. You also offered no explanation as to why these "examples from pop culture" are emblematic of the "Liberal position." I mocked your comment because the evidence you presented is extremely weak, it does not support your thesis, and your thesis is overbroad and unnecessarily divisive.
9.23.2005 12:55pm
Seamus (mail):
"Another poster pointed out that Mary, mother of Jesus, was somewhere around 13 or 14 when she became pregnant."

And I and another poster have asked what the evidence is for this claim. Unless I missed it, no one has answered so far.
9.23.2005 12:55pm
Ken B:
Well NR, I said "check out" the Sturgeon story and the intro to it " as a pop cultural tie in" to an attitude that was quite common at the time. I stated that an attitude that seems odd today was in fact not seen as quite so odd 35 years ago, and mentioned a bit of fossillized history as an example. If you want to see that as an assertion that the story proves what George McGovern or any other liberal thought, then I will not try to dissuade you. I think it a fairly willful misreading. As I emntioned I did have discussions about this at the time, and I have no doubt that Liberals were far more receptive to a lower age of consent and more accepting of incest -- I had classroom discussions in high school on this very topic!
9.23.2005 1:45pm
Cheburashka (mail):



I (US born male, now 38 y.o.) was early on noted as being intellectually advanced, and was "officially" IQ tested by a state university psychology department in Michigan. This was at the age of 9 and I scored 186. Seriously; this of course is an extremely high genius score no matter the scale. I was in due course enrolled in public college, also at the age of 9. My classmates were typical college-age students in a midwestern town.

As far as the other half of the question: other than some very occasional first-to-second-base type sexual activity as a late teenager (with girls my own age), I remained abstinent until my marriage at age 25 to a woman close to my own age. I'm still married to the same woman, monogamous, heterosexual, and have multiple children.


Jeezus... Born so smart, and this is your reward, sex with only one woman in your life? I'm so, so sorry. You should sue your parents.
9.23.2005 2:15pm
NR (mail):
Ken B., You claimed that the "Liberal position" in the seventies was that "incest was not so bad" and "the age of consent should be a lot lower or abolished." Apparently I misread your reference to the Theodore Sturgeon short story and the movie Pretty Baby as evidence supporting that claim. In fact, you offered those tidbits only as a "pop cultural tie in," not as actual evidence. Your actual evidence, I gather, consists of some conversations you had when you were in high school. I apologize for misreading your comment.
9.23.2005 2:59pm
Nobody Special:
As to the "Mary was 13 or 14 at the time" question-

it's been years since I was subjected to Catholic education, but I remember that there was something about the historical evidence that, at that time in the Levant, women were traditionally married off to men shortly after their first menstural cycle, which would have been in roughly that age range.

Since Mary and Joseph were fairly recently married according to the Bible (the whole pregnancy was something of a scandal- Joseph was originally going to divorce her quietly), that would place her around 13-14 at the time, since there isn't anything to indicate that she was somehow married later than the norm.

As a side note, those men that the women were married to were typically in their 20s.
9.23.2005 3:00pm
Clayton E. Cramer (mail) (www):
James Kabala makes a number of important points about average marriage age which, at least where I have detailed knowledge, is correct, and observes:

Another point worth making is that, for reasons that are still not fully understood, the average of puberty has also been decreasing over the last century or so. Thus, a fourteen year-old girl of a century ago might not even have had her first period yet, which would be highly unlikely today. A lot of our modern sexual problems may, I believe, have part of their roots in the lowering age of puberty, which, it frightens me to say, is still decreasing. Among many present-day Americans, especially blacks, first periods are starting to come as young as ten.
It is probably improved nutrition (or least more calories) that has caused the decline in age of first periods. Scientific American had an article in the 1970s, I think, that documented the decline in age of first period among Los Angeles School District students through the twentieth century--and it was something like a three year average drop over about a fifty year time. (I had no idea that the schools were so intrusive in the 1920s.) Women have to have a certain percentage of body fat or their periods stop (hence the problems that some female runners have); I wouldn't be surprised if throughout history, girls didn't have enough body fat to start any earlier. I recall from a biology class that copper as a trace element is necessary for puberty; this was apparently discovered by U.S. Army doctors in some remote part of the Middle East where there was essentially no trace copper in the water, and boys as late as 19 or 20 hadn't hit puberty yet.

While there have always been guys who preferred sex with prepubescent girls, I don't think that this has been terribly common. Plymouth Colony had a problem with one guy who molested a nine year old, but because he didn't have intercourse with her, it wasn't rape, and they were unable to find any other basis to charge him. Gov. Bradford's account indicates that they wrote to Boston to ask their lawyers if they could think of anything; they couldn't. Common law age of consent was probably irrelevant to questions of statutory rape, because the prepubescent girls would not have any interest in sexual intercourse--and most girls would not have reached puberty before 15 or 16.

The dropping age of puberty is probably why this has become more of an issue. In 1900, I would guess that most 13 year olds would not be sexually attractive to the vast majority of men, because they lacked secondary sexual characteristics. When we lived in Irvine, we had a babysitter who was astonishingly developed--and not surprisingly, as we got to know her better, she confided that she was in the midst of an ugly trial. One of the maintenance guys who were worked for the apartment complex--who was 44--had persuaded her into his van, and passionate kissing soon led to sexual intercourse. While it was not forcible, she was in enormous pain for two days (she was only 13), and of course, his "punishment" was two years of weekend jail.
9.23.2005 3:08pm
Ken B:
Ah remedial logic and grammar.

NR mischaracterized my very brief note as follows:

"Liberals advocated incest in the 1970's: a short story in a sci-fi magazine establishes that. Liberals also wanted to abolish the age of consent: the movie Pretty Baby establishes that.

In the face of that kind of evidence, I'll guess there's just no way to deny that liberals a bunch of incestuous child-rapers."

My contention was that attitudes and opinions WERE different, the liberal position WAS more hostile to ALL sexual taboos than it is now, and that examples can be found EVEN IN pop culture. All of that is true. Anyone who concious during the sexual revolution knows it.

That adds up to an argument that liberals are incestuous child rapers? No, just that attitudes ahve changed and some liberal positions from 1972 look pretty od today. NR is just embarassed to admit it.
9.23.2005 3:51pm
Clayton E. Cramer (mail) (www):
Jeezus... Born so smart, and this is your reward, sex with only one woman in your life? I'm so, so sorry. You should sue your parents.
Oddly enough, some of us have discovered that sex gets better the more that you do it with the same person. Sexual compatibility is mostly inside the most important sexual organ: the brain. I know that this is the view of most men with whom I have talked about his once they were past the hormone-crazed age.
9.23.2005 4:11pm
Clayton E. Cramer (mail) (www):
My contention was that attitudes and opinions WERE different, the liberal position WAS more hostile to ALL sexual taboos than it is now, and that examples can be found EVEN IN pop culture. All of that is true. Anyone who concious during the sexual revolution knows it.
Yup. Some of us were even proud to call ourselves liberals back then. But we grew up, and a little maturing helped us to see that a lot of the sexual taboos had some merit.

The taboo against promiscuity kept STDs (especially deadly ones) somewhat in check. (If that taboo had actually been followed with any regularity, it would have been completely in check.)

The taboo against sexualizing relationships prematurely meant that you actually got to know a young lady as an intelligent and charming companion--instead of just someone that you were trying to get naked for sex. It is astonishing how quickly a relationship built only or primarily on sex turns dull.

The taboo against adultery meant that marriages stayed together, and children actually grew up with both Mom and Dad--instead of the chaos and financial difficulties of imploded families.

The taboo against having sex with children (meaning, under 14) meant that children could actually emotionally
mature before adding the complexity of sex to their lives. It also meant that little girls didn't have to deal with little details like pregnancy, childbirth, or abortion before they could drive themselves to the abortion clinic.

The taboo against coprophilia means that you have less opportunities to spread hepatitis.

The taboo against inflicting pain as part of sex means that you had less people badly injured or dead because someone's "passion" got a little carried away. (Yeah, yeah, I know all about "codewords." It still happens.)

The taboo against hanging yourself for sexual excitement meant that I didn't grow up reading about teenagers and adults found dead, hanging from a rope, and naked. There was at least one of these involving a teenaged boy while I lived in Sonoma County. A few weeks later, another boy described as a "close friend" died in a "gun accident," in which he was cleaning a loaded rifle that was on a gun rack against the wall. Try to imagine how this was anything but a disguised suicide.

Making love is definitely an important part of a romantic relationship, and relationships are definitely an important part of life. But sex as sport (lying face-down in a South of Market Street bathhouse while complete strangers whose faces you never even see come through to sodomize you) is only an important part of life if your life doesn't have any other important parts.
9.23.2005 4:26pm
Christine (mail):

Cold Warrior wrote:

Traditional conservatives aren't so different from orthodox liberals it seems. Both are appalled by the notion that the State could do certain things that violate the personal/bodily integrity of the woman, it's just that the things that appall them are different: forced contraception/abortion (conservative) vs. forced pregnancy with no right to abortion (liberals). Call it the "right to privacy" or whatever you wish. Both sides will divine such a "right" in the Constitution; it all depends on whose ox is getting gored.
First, I didn't know you were conservative-baiting. I was simply answering your question based on the present state of the law. That doesn't mean I agree with the present state of the law, or the way Roe stretched Griswold's right to privacy into a right to autonomy.

I'm not sure I agree with your analysis above. The reason conservatives would object to forced abortion is not based on a right to privacy, but based on their belief that the fetus is a human being. The argument is not that forced abortion violates a woman's right to autonomy, but rather that it murders innocent human life. They might argue that the fetus is a "person" under the 14th Amendment.
9.23.2005 4:50pm
Anonymous Data Point (mail):
"Cheburashka the Russian Tumbling Toy" wrote:


Jeezus... Born so smart, and this is your reward, sex with only one woman in your life? I'm so, so sorry. You should sue your parents.



You haven't met the one woman.

Seriously, though, if your point of view is that sex with many partners is the ultimate reward in life...then I am the one that should be sorry for you. Sex with many partners is easily and cheaply obtained. But de gustibus non es disputandum, I suppose.

And that's precisely the point of this thread, too. Different people have different sexual tastes and proclivities. Where to draw the lines between legal sexual behavior and illegal, then? Wherever you draw the lines, someone's preferences will probably be made illegal. Nevertheless the lines will and must be drawn.
9.23.2005 4:55pm
Clayton E. Cramer (mail) (www):
Seriously, though, if your point of view is that sex with many partners is the ultimate reward in life...then I am the one that should be sorry for you. Sex with many partners is easily and cheaply obtained.
Yeah, does al-Qaeda have a deal for you!
9.23.2005 5:09pm
Cold Warrior:

First, I didn't know you were conservative-baiting.

No, not really "conservative-baiting." And your answer is not the stock conservative answer, so I don't think you took the bait anyway.

They might argue that the fetus is a "person" under the 14th Amendment.

This is a substantive due process argument, since the 14th would only require that "life" not be taken away without due process. And "substantive due process" is not the most favored notion amongst conservative jurists. "Due process" in the ordinary sense -- procedural -- is not similarly disfavored.

Let's say that my hypothetical 1970s California law mandated abortion of third or subsequent pregancies when the "life" was not a fully-formed human life, when the preganancy was in its first trimester. Let's also say the Calfornia law established the following "process that is due" before a woman could be required to appear for her required abortion:

-- you may provide reliable medical evidence, in the form of an ultrasound or other reliable technique to prove that the pregnancy is more advanced than the first trimester

-- you may provide evidence and ask for an immediate hearing if you believe that you have not, in fact, already given birth to two children.

Again, ask where in the Constitution you might find a "right" against such a violation of one's body. (Let's assume we're dealing with a woman who does not belong to a religion that opposes all abortion.)

I think the "right" will end up sounding a lot like the "right to privacy" that is so disparaged (the "so-called right to privacy" in John Roberts' words).

And thanks for taking my little thought experiment seriously. I assure you that this was not outside mainstream academic thought in the early 1970s; just a generation ago the parties aligned in a very different manner.
9.23.2005 5:10pm
Salaryman (mail):
I doubt that Cold Warrior's challenge to conservatives ("what if legislatures MANDATED abortions? Wouldn't THAT be unconstitutional?") ultimately proves much.

The example of legislative atrocity he uses is, at least in today's U.S., pretty much universally reviled -- feminists would be against mandatory abortion, liberals would be against it, conservatives would be against it. Of course, this makes it effective rhetorically; if you're making a "parade of horribles" type argument (here, "if you don't recognize some kind of privacy right, this is the kind of thing that might happen"), why not trot out the worst possible horribles you can think of?

The problem is that it's not very persuasive to cite hypothetical legislation that the overwhelming majority of persons (and specifically, the overwhelming majority of voters) would be strongly opposed to as a reason to prefer a less democratic decisionmaking process (resolution by the judiciary) to a more democratic one (representative democracy). If something is sufficiently offensive/stupid/immoral that everyone is against it, why should it be the kind of thing we worry about when considering the pitfalls of representative government?

Of course, one could avoid this objection by merely selecting an example as to which opinion is more evenly divided, but that would leave you with a "horrible" that 50% or so of people think is either not so horrible or a positive good -- not particularly effective rhetorically.
9.23.2005 5:17pm
Anderson (mail) (www):

In support of this provocative claim, you cited one sci-fi short story about incest and one movie about a child prostitute, neither of which obviously condones incest or abolishing/lowering the age of consent.
Well, as far as the story goes, it certainly *does* condone incest, inasmuch as any ostensible work of fiction could. Like I said, it's basically a dressed-up essay. I don't know Sturgeon's own opinion; maybe he just saw it as a thought-experiment.
9.23.2005 7:15pm
Robert Schwartz (mail):
Mr. Kabala's excellent comment above correctly summarizes the social history as I know and understand it. The post-WWII period in the U.S. was an anomaly.
9.23.2005 10:30pm
Seamus (mail):
"it's been years since I was subjected to Catholic education, but I remember that there was something about the historical evidence that, at that time in the Levant, women were traditionally married off to men shortly after their first menstural cycle, which would have been in roughly that age range."

The fact that a practice is "traditional" does not mean it was universal. Even if 90% of woman in Mary's place and time were married by age 13 and 99% of them were married by age 20, we have absolutely no evidence one way or another whether Mary fell into the 99%, the 90%, or the 1%. Maybe she married at 13, like most women of her time. But maybe she was one of those unfortunates whose parents were unable, for one reason or another, to line up a husband for her until she turned, say, 25, when the "just man" Joseph realized that the other guys were missing a good thing be writing Mary off as an old maid. We just don't know, and any categorical statement that Mary "was" pregnant at age 13 is just speculation.
9.24.2005 12:28pm
Seamus (mail):
"there isn't anything to indicate that she was somehow married later than the norm"

This assumes that if she were married later than the norm, then Matthew and Luke would necessarily have included that fact. But maybe the evangelists weren't writing a journalistic account that could be expected to include all the facts that a 21st century reader interested in the marriage practices in Galilee ca. 4 BC would think were important.
9.24.2005 12:39pm
Nobody Special:
I'm sorry that history hurts your feelings.

Tell me, is Jesus tall, with flowing blonde-brown hair, blue eyes, and possibly a goatee in your world too? Or is he short, swarthy, with curly dark hair and probably severely calloused hands from living as a carpenter for nearly two decades?
9.24.2005 1:13pm