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It Looks Like Justice Ginsburg Likely Was the Victim of a Drafting Error

after all; and it looks like I erroneously failed to recognize just how likely this was to be an error.

Here's what I wrote on the subject when I first dealt with it last year:

[The] Sex Bias in the U.S. Code [report] was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here's what the report said on p. 95 about the relevant statu[t]e, 18 U.S.C. § 2032:

Under 18 U.S.C. §§1153 and 2032, it is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age. "Rape" is defined [as limited to female victims]. . . . The "statutory rape" offense is defined in these sections in much the same way: the victim must be a female and the offender a male . . . .

These provisions clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions. The Model Penal Code and S. 1400 §1633 require a substantial age differental between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.

So far, not a proposal to generally lower the age of consent — it's a call for sex-neutral statutes, and for making the statutory rape rules turn on the difference in age between the parties. One can argue against this on various grounds, and it's not clear why the age differential vs. clear cutoff issue is relevant to the "Sex Bias in the U.S. Code" issue. Moreover, S. 1400 §1633 provided (at least in the version that I could find), that "sexual abuse of a minor" (essentially statutory rape) be limited to victims who are under 16, and who are "at least five years younger than" the defendant. This could be criticized, since it would allow 17-year-olds to have sex with 12-year-olds, which many people would treat as child molestation and not just young love. But at least it doesn't make 12-year-olds fair game for adults.

But here's the suggestion [given under the heading "Recommendations"] on 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.

Under this proposal, it seems to me that sex with 12-year-olds and older would be legalized in the federal territorial and maritime jurisdiction, regardless of the age of the other party. This wouldn't be a "Romeo-and-Juliet" law aimed at preventing prosecution of young lovers — it would equally be a dirty-old-man-and-Juliet law. And while there are plausible debates about what the age of consent should be, it seems to me that simply lowering it to 12 would be quite a striking and unjustified change.

Now this all happened nearly 30 years ago; but I'm still curious about what was happening here. Am I misreading the proposal? Am I missing some important statutory context, such as other federal statutes that would have banned sex by adults with 12-year-olds even when this statute had been relaxed to allow it?

If I'm not mistaken or reading this out of context, then were many in the late 1970s feminist movement really in favor of lowering the age of consent to 12? Did Justice Ginsburg hold this view? Or was this something that was added by an overzealous student and not caught by her (of course she had the responsibility of checking everything produced by the people she was supervising or even by her coauthor, but mistakes happen)? Might it even have been an inadvertent drafting error? (As to 18 U.S.C. §1153 — which applied to Indian country — the other section mentioned alongside §2032 on p. 95, the report on p. 103 simply suggests that it be changed to the S. 1400, §1633 version.)

On reconsidering the matter, I now think there's very strong evidence that there was indeed an inadvertent drafting error. The error is not, as I thought some had suggested, a reference to "12" instead of "16." Rather, the error is that the report quite likely was intended to quote the Romeo-and-Juliet language from §1633 (the provision it cited in the "Recommendations"), and instead inadvertently quoted the flat-age-12 age-of-consent language from §1631. I think this because the report did indeed cite §1633 in the recommendations; because it had discussed it earlier in the text; because it called for sex-neutralizing the rape definition elsewhere in the Recommendations (see item 1 below); and because the report (as I pointed aut above) suggested that §1153, governing Indian territory, borrow the language from §1633, and there's little reason why it would have a different recognition for §1153 and for §2032, the provision that governs federal enclaves.

Here's what I now think the report was probably intending to recommend:

(1) Elsewhere in the recommendations, the report would have sex-neutralized the definition of rape ("A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense.").

(2) The recommendation as to "carnal knowledge" was not intended just to sex-neutralize the definition of rape or carnal knowledge, but rather to replace the flat age of consent of 16 with the more complex "Romeo-and-Juliet scheme" (under which sex with under-16-year-olds was legal for people who were less than 5 years older, a misdemeanor for under-21-year-olds who were more than 5 years older than the victim, and a felony punishable by at most 3 years in prison for adults). This is consistent with the earlier discussion in the report, where the report praises Romeo-and-Juliet laws, and consistent with the fact that it had already recommended that rape be sex-neutralized (see item 1 above).

(3) The recommendation correctly cited §1633 but erroneously quoted the text from §1631; it should have read "patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person who is not his spouse, who is less than sixteen years old, and who is at least five years younger than the actor. . . ."

(4) The recommendations were also intended to make sure that any sex with under-12-year-olds, regardless of the age of the other party, would be illegal; but that would have been accomplished through the recommendation that "A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense." That definition would have included a flat ban on sex with under-12-year-olds.

So a person who was just reading the report would have rightly inferred, I think, that the report was meaning to change the age of consent. (That's why it recommends including §1633, the main purpose of which is to change the age of consent, not to sex-neutralize the offense.) A casual reader might also have inferred that the report was meaning to change the age of consent to 12, period, which is what the text says.

But the careful reader — which I, unfortunately, was not (especially in my more recent post on the subject here) — should have realized that the report was likely intending to recommend replacing the "carnal knowledge" ban not with a flat age of consent of 12 (what the text said) but rather with a graduated Romeo-and-Juliet age of consent that would have been set at 16 for adults (what the §1633 that the text cited said).

So while I still disagree in some measure with some of Tim Noah's analysis in Slate (I think the report was endorsing a change in the age of consent, and not just talking about sex-neutralization, and I think Ginsburg's critics' views may well have been just a reasonable mistake and not a deliberate smear), and while I stand by my points about the report's recommendation to decriminalize prostitution and its likely recommendation to decriminalize polygamy, I now find it highly unlikely that the authors of the report really did intend to recommend that the age of consent be generally lowered to 12. Rather, the recommendations cited the right subsection but quoted the wrong one; and the intended purpose was to decriminalize sex between 12-year-olds and up-to-16/17-year-olds and substantially lower the maximum penalties for sex between 12-year-olds and older partners (from 15 years to 3 years) — a scheme that is probably still less restrictive than many (including me) would endorse, but that makes much more sense than a flat age of consent of 12.

Ginsburg's critics were led astray by this error, which suggests that their characterization of Ginsburg's views was likely a mistake of their own, rather than a deliberate "smear." But I now do think that the critics' assertions — and my own past assertions — were indeed likely mistaken.

UPDATE: I've updated the text above to reflect the punishment that S. 1400 §1633 would have authorized for sex between adults (over age 21) and 12-year-olds -- it would have been at most 3 years in prison.

Per Son:
Take that Lisa's feelings!!!
9.30.2005 2:40pm
A Berman (mail):
Good for you, Professor. Lets see who else is willing to admit their mistakes in this debate.
9.30.2005 2:48pm
Kerry (mail):
Kudos on acknowledging your error. Your intellectual honesty is one of the main reasons I frequent this blog. Thank you once again for an intelligent, reasonable, and responsible post.
9.30.2005 2:56pm
hey (mail):
A berman:

hold on a second. Prof is saying that on a close reading the apparent intent of the report is contrary to the actual text of the report.

I'll take the Prof's analysis as to the intent of RBG et al. as conclusive and change my view, and I expect that most of her critics as to this specific question wil say ok, sure I guess that makes sense. Will Noah et al accept that it really was the fault of RBG that she got to this point in the first place and not wilful misreading on the part of her critics? I don't think so.

Furthermore, there are not all that many arenas (legal or otherwise) where you get a free pass based on your intent in drafting a document, rather than on what you actually drafted. There appears to be an essentially infinite supply of examples from contract law where intent in drafting that's contrary to the text of the draft doesn't mean a **** thing.

This would lead to the conclusion that OK, RBG isn't disqualified from the court for believing that sex with 12 year olds is a-ok, but that she is incomeptent in preparing, drafting, supervising, and editing a major legal document on a topic of serious public inteterst. This seems like a sub-optimal defence of RBG, but there you go.
9.30.2005 3:00pm
Eugene Volokh (www):
I don't see much reason to be so harsh towards Ginsburg. Mistakes happen -- even very competent supervisors sometimes let some things slip. On looking closely at the report, the drafting error is pretty clearly just a drafting error; casual readers may naturally not grasp that, but careful readers and critics should have. (I certainly should have.) That Ginsburg let an error pass by her in 1977 isn't a sign of general "incompeten[ce]," just as I hope that my error isn't a sign of general incompetence on my part.
9.30.2005 3:18pm
walkabout:
I can accept that it might be a drafting error - and yes, it happens to the best of us - but for such an inflammatory mistake to remain uncorrected for 30 years is a little, well, let's say strange.

Has anyone simply asked one of the authors, Ms. G or someone else, what was intended to be in the report a.o.t. what it actually said, in order to confirm or deny the discrepancy?

30 years?
9.30.2005 3:26pm
llamasex (mail) (www):
It always seemed to be that if anyone asked Ginsburg about this, she would respond with a what the hell are you talking about?
9.30.2005 3:34pm
Eh Nonymous (mail) (www):
walkabout: what did you have for breakfast two weeks ago, on a Tuesday?

30 years - on one of her least important pieces of work, perhaps, in her entire life. Where she wasn't the sole author.

When 400 years old you reach, not so pristine will your paper trail be.

I remain of the opinion that this is and has been a silly line of inquiry, not because we shouldn't address the _argument_ as raised (even if it was marred by a mistake in drafting /editing) but because it is not a _live_ argument. It's an argument made by a long-gone Prof. RBG, not by the present still-active Justice, who as noted has made no move to judicially actively alter said age of consent. Because unlike her critics, she restrains herself sometimes. Actually, that's unfair; EV has just (after the fact) recognized that he may have been mistaken in his assertion, even if reasonably so.

Well, better late than never, but that's not the point. What should RBG be ashamed of? The way the report was interpreted by reasonable readers? Her own actual opinions? Her years of service? Let's all go back to getting a grip.
9.30.2005 3:39pm
Anderson (mail) (www):
Thanks for the correction, Prof. Volokh.
9.30.2005 3:39pm
Anonymous Jim (mail):
You're a big man.
9.30.2005 3:46pm
NickM (mail) (www):
Based upon Eugene's analysis of the intent of the drafters, they would still have decriminalized sex between a 17 year old male and a 12 year old female. That is still a lowering of the age of consent to 12, if only in some cases, and makes the statements by the Senators fairly correct, even under that contratextual analysis.

Nick
9.30.2005 3:47pm
Public_Defender:
No one would probably bother trying to "correct" a 30 year-old report from an advocacy organization unless there's a big stink (which there might be now). I congratulate the professor for double checking his facts, but it was interesting to see how many people were willing to jump to the conclusion that RBG supported child molestation.

On the polygamy point, there's a big difference between barring formal and informal polygamy. It's one thing for the government to say it won't sanction a relationship (and to criminalize falsifying the necessary documents). But it's another to criminalize five women who live with one man at the same time. RBG opposed only the latter.

We would no longer subject a man to criminal punishment if he lived with five women in succession, or even if he had five one-night-stands. So if six adults want to form a stable relationship, why is it radical to say that the government should leave them alone?

As to prostitution, if you accept the model that most prostitutes are sexually abuse victims (as many on the left and the right argue), why not decriminalize being a prostitute, but keep the sanctions on hiring a prostitute? That way, the law treats victims as victims and perverts as perverts.
9.30.2005 4:01pm
Harsh Pencil (mail):
If due to some error, Ginsberg proposes lowering the age of consent to 12 without really meaning to say this, the fact remains that she still, from any reasonable straight reading of the document, called for the age of consent to be lowered to 12. The fact that she called for this due to an error removes all guilt from her part of calling for such a loathsome law (assuming it is loathsome). Mistakes are mistakes. But it certainly not a smear to point out that she called for the age to be lowered to 12 unless the alleged smearer knew or had reason to believe this was due to a clerical error. Nothing in my reading makes me think this. Again, the alleged smearers here are still more sinned against than sinners.
9.30.2005 4:10pm
Kazinski:
Fact remains the recomendation was in the report in text form, not as a reference to a statute. It may well be in error, but it is unfair to charactarize politicians that cite it as "smear[ing]" Ginsburg. Now if Ginsburg or one of the other authors want to adopt your explaination, I'd be perfectly willing to accept that. But it seems to me that the Republican Senators' point remains unimpaired: that the Ginsburg report DID take out-of-the-mainstream positions (asserting that prostitution and polygamy laws unconstitutionaly infringe on individual rights), but those writings were not made an issue because she was a) qualified and b) the Presidents choice.

If Roberts had made a similar error in one of his briefs or memos, do you think the Democratic Senators would be as quick to accept error as an explanation? Especially if Roberts himself had remained quiet about the matter? And would Noah be as quick to condemn the Democratic Senators for "smear[ing]" Roberts?
9.30.2005 4:16pm
Kazinski:
One more point, if one of the Professor's students made a similar drafting error on one of their papers, it wouldn't affect their grade would it?
9.30.2005 4:23pm
Ken B:
Wait wait wait. Let's say there was a drafting error. Let's say therefore that Volokh was wrong the first time about what Ginsburg really meant. Why was he wrong? Because (he now presumes) what she wrote was not what she meant. Due to the drafting error.

Does any of that mean her critics were mistaken or unfair in quoting this passage? I think not. If there really was a drafting error on Ginsburg's part, or on her behalf, how is it fair to expect other critics to recognize that? The passage itself seems clear enough in advocating a lower age limit.
9.30.2005 4:44pm
John S (mail):
The point lost in all of this is that the charge Graham made was like yelling fire in a crowded theater in the context of right-wing attacks on the judiciary, "Justice Sunday", and the overall attempt to politicize the judiciary by those on the extreme right. He made no reference to the past. And Justice Ginsburg was not present to give an answer to whether she favored the things Graham assumed she favored. Her confirmation hearings contained no such testimony - something I would think one would need for an apples to apples comparison. Roberts was dismissive of many of the opinions contained in his prior work.

What's that line, where do I go to get my reputation back?
9.30.2005 4:51pm
Public_Defender:
One more point, if one of the Professor's students made a similar drafting error on one of their papers, it wouldn't affect their grade would it?

Yes, but as the professor ackowledges, it's also an error to fail to read the entire article in context. It's even more of an error to treat the entire article as advocating child molestation.

One basic rule of reading legal material is that if your read of something appears too weird to be true, read it again and again and again. Too many (including Senator Graham) were willing to assume the worst without doing the hard thinking the professor did.
9.30.2005 5:05pm
Clayton E. Cramer (mail) (www):
I understand that this error was the subject of some discussion by conservatives when Ginsburg was confirmed back in 1993. Has Ginsburg, or anyone else associated with the project, even responded to the criticism with, "This was a drafting error?" That would have put the whole matter to rest in 1993.

Of course, the ACLU has taken the position that minors have a Constitutional right to have sex, and the government's authority to regulate that is subject to the same sort of limits as the other cases they have won (say, Roe v. Wade)--which is to say, effectively none.

It sure would remove all doubts in my mind if anyone could find any evidence that Ginsburg or others who worked on this recognized that it was a drafting error, and stated, "Of course we weren't trying to lower the age of consent to 12!"
9.30.2005 5:36pm
Public_Defender:
I understand that this error was the subject of some discussion by conservatives when Ginsburg was confirmed back in 1993. Has Ginsburg, or anyone else associated with the project, even responded to the criticism with, "This was a drafting error?" That would have put the whole matter to rest in 1993.


Where was it discussed? If it was just a few conservatives talking among themselves, I wouldn't expect that she would have bothered responding. If you don't ask, you often don't get answers.
9.30.2005 5:47pm
42USC1983 (mail):
Kudos for your self-correction.
9.30.2005 5:56pm
Colin W.:
Professor Volokh now says that a careful reader should have noticed the likely drafting error. Shouldn't one be a careful reader and thinker before publicly making horrible accusations? Sure, we don't have robust defamation laws in this country for sound reasons, but that doesn't mean that there isn't an important policy behind such laws. The harm that such an accusation can to do such a prominent person is very real. Notwithstanding Professor Volokh's carefule and admirable reading, these horrible accusations will probably dog her for the rest of her life. Such stories have a life of their own, particularly in far right and far left political circles.

Not only didn't Ginsburg's critics carefully read her work before making the accusation, they also failed to make the distinction between her current views and views she might have had 30 years ago.

Her critics might not have "smeared" her but I don't admire their actions. They said horrible things about her without looking into the matter carefully or expressing themselves accurately. They did so for partisan political advantage at a time when it wasn't really needed. Roberts was going to be confirmed, everyone knew that. And they attacked someone, a sitting judge, who isn't a great position to defend herself.

Of course, similarly imprecise and shallowly research accusations are quite common among liberal and conservative politicians and pundits, but that doesn't make Graham's behavior any less shabby.
9.30.2005 6:11pm
Challenge:
I am not sure Volokh's explanation is any more probable than his first. The report says what it says, Volokh's latest entry seems like a terribly strained attempt to produce a plausibe error. Moreover, given various positions of the ACLU, I don't see the recommendation as shocking. Given the author of the document, and the clear language of the report, I do not view Volokh's reasoning as persuasive.
9.30.2005 6:30pm
Bruce Wilder (www):
Thank you for the correction. I admire your willingness to do the hardwork of close reading, and the fair mindedness to forego a partisan cheapshot.
9.30.2005 6:37pm
Clayton E. Cramer (mail) (www):
Colin W. writes:
They said horrible things about her without looking into the matter carefully or expressing themselves accurately.
If someone as sympathetic to her position as Professor Volokh initially misreads Ginsburg's work on this, why should you expect those who are skeptical of the whole leftist mindset to do better?
9.30.2005 6:41pm
mgarbowski:
The idea expressed here -- more than once -- that one is not allowed to take someone's writing at face value is, well, wrong. IDo people really mean to arguing that it is unjust and libelous to criticize someone for what she or her committee wrote, because we have an obligation to interpret the work such that we conclude that the author made a mistake, and then we have to just shut up about it?

This is not political: left, right, judges, lay-people, the context is irrelevant. If individuals or committees publish, you can criticize them for what they publish. If it turns out that the criticism turns on an error in the published work, then the <b>authors</b> have to step up and say, "I'm sorry, your criticism is misguided because it is based upon <b>our</b> mistake. We are sorry that our error set you off on the wrong path and wasted your time."

Further, let the drafters come out and state, "We are sorry for accidentally arguing that the age of consent should be lowered to 12. Of course we wouldn't argue for that. Age 12 is way too low. I can't believe we actually wrote that and no one noticed for 30 years." Until then, blaming the critics is wrong.

But, in the spirit of the thread, let me ask those who wrote here, did you really mean to argue that it is the responsibility of the reader to find and fix the errors of an author before daring to criticize? I'd like to know before I dare criticize something so obviously wrong. I mean, what I read is "too weird to be true" and I've read and read and read again, yet it still appears that this is what people are arguing.
9.30.2005 7:04pm
K. Marx:
This discussion reminds me: I too wish to correct the typos in my previous works that caused them to be so completely misinterpreted. I was just trying to form a little poker club, maybe make a few bucks, that's all. I hope I didn't cause anyone trouble.
9.30.2005 7:06pm
Colin W.:

If someone as sympathetic to her position as Professor Volokh initially misreads Ginsburg's work on this, why should you expect those who are skeptical of the whole leftist mindset to do better?


Why should skepticism "of the whole leftist mindset" lower one's standards of behavior? Prof. Cramer seems to be suggesting that one should be careful when it comes to criticizing and castigating one's ideological bedfellows but quick to believe the worst of those who have different beliefs. That's certainly a common attitude within any movement but is it a moral or ethical standard?

Should liberals be quick to accuse conservatives of being racist? If they see a statement which at first seems racist, should they read it carefully before accusing the conservative of being racist and supporting racist policies?

Why not be careful with others' reputations? Don't we all want to be subjected to carefully considered and thoughtfully weighed criticism? Don't we all want careful reading? We don't need to be so quick to believe the worst about each other in order to engage in intellectual discourse.
9.30.2005 7:48pm
Jeremy (mail):
I have nothing but respect for Prof. Volokh. But I have to say, I don't think Prof. Volokh is correct when he implies that a careful reader would notice this as an obvious mistake. I've read the passage repeatedly, and it doesn't seem to me there were any mistakes. Further, if there are mistakes, the onus is on Justice Ginsburg and her co-authors to make the case.

I don't believe I've ever seen a situation where a group of people OTHER THAN THE AUTHORS argue so strenuously in favor of a drafting mistake while nothing but dead silence comes from the (living) authors.

Unless and until Justice Ginsburg states that the document contained an error, I feel constrained by logic and prudence to believe that the document is correct. The backlash against those who are attacking Justice Ginsburg for this article is ridiculously misguided. Scholars who publish their work have an absolute responsibility to correct errors brought to their attention; surely Justice Ginsburg has some inkling of the controversy surrounding this document.
9.30.2005 8:31pm
USMC Paralegal (mail):
I'm not sure whether Justice committed error or not however, her recommendations were incorporated at least in military law. Pasted below is Article 120 of the UCMJ (aka 18 U.S.C. 920). If you read through it you'll see some of the things Ginsburg was recommending. This was taken from the 2005 version of the Manual for Courts Martial.

45. Article 120—Rape and carnal knowledge
a. Text.
(a) Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct."

(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person—

(1) who is not his or her spouse; and

(2) who has not attained the age of sixteen years, is guilty of carnal knowledge and shall be punished as a court-martial may direct.

( c ) Penetration , however slight , insufficient to complete either of these offenses.

(d)
(1) In a prosecution under subsection (b), it is an affirmative defense that—

(A) the person with whom the accused committed the act of sexual intercourse had at the time of the alleged offense attained the age of twelve years; and

(B) the accused reasonably believed that the person had at the time of the alleged offense attained the age of 16 years.

(2) The accused has the burden of proving a defense under subparagraph (d)(1) by a preponderance of the evidence.

b. Elements.

(1) Rape.

(a) That the accused committed an act of sexual intercourse; and

(b) That the act of sexual intercourse was done by force and without consent.

(2) Carnal knowledge.

(a) That the accused committed an act of sexual intercourse with a certain person;

( b ) That the person was not the accused's spouse; and

(c)(1) That at the time of the sexual intercourse the person was under the age of 12; or

(2) That at the time of the sexual intercourse the person had attained the age of 12 but was under the age of 16.

c. Explanation.

(1) Rape.

( a ) Nature of offense. Rape is sexual intercourse by a person, executed by force and without consent of the victim. It may be committed on a victim of any age. Any penetration, however slight, is sufficient to complete the offense.

(b) Force and lack of consent. Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm. If there is actual consent, although obtained by fraud, the act is not rape, but if to the accused's knowledge the victim is of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is rape. Likewise, the acquiescence of a child of such tender years that he or she is incapable of understanding the nature of the act is not consent.

(c) Character of victim. See Mil. R. Evid. 412 concerning rules of evidence relating to an alleged rape victim's character.

( 2 ) Carnal knowledge. " Carnal knowledge" is sexual intercourse under circumstances not amounting to rape, with a person who is not the accused's spouse and who has not attained the age of 16 years. Any penetration, however slight, insufficient t o complete the offense. It is a defense, however, which the accused must prove by a preponderance of the evidence, that at the time of the act of sexual intercourse, the person with whom the accused committed the act of sexual intercourse was at least 12 years of age, and that the accused reasonably believed that this same person was at least 16 years of age.

d. Lesser included offenses.

(1) Rape.

(a) Article 128—assault; assault consummated by a battery

(b) Article 134—assault with intent to commit rape

(c) Article 134—indecent assault

(d) Article 80—attempts

(e) Article 120(b)—carnal knowledge

(2) Carnal knowledge.

(a) Article 134—indecent acts or liberties with a person under 16

(b) Article 80—attempts

e. Maximum punishment.

(1) Rape. Death or such other punishment as a court-martial may direct.

(2) Carnal knowledge with a child who, at the time of the offense, has attained the age of 12 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(3) Carnal knowledge with a child under the age of 12 years at the time of the offense. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole.
9.30.2005 8:58pm
arbitraryaardvark (mail) (www):
I think EV is continuing to unintentionally misrepresent the content of the report. It does not suggest lowering the age of consent. It raises the age from 0 to 12 for boys and lowers it from 16 to 12 for girls, for a net raise in a "revenue neutral" sort of way.
I also think he's unfairly downplaying the federalism aspects, given his recent post on federalism. The report does not so much urge that the aoc be made 12, as it leaves the issue up to the states. The effect on territories and ships at sea was likely an oversight. I don't know how much home rule the territories (guam, puerto rico?) have or don't have to act in these matters. I'm also fuzzy on the law of federal enclaves within states, military bases, BLM land, that sort of thing. My first federal case was a speeding ticket my roommate got on a military base.
I don't know how federal prosecutors deal with these issues, or how local prosecutors apply federal law. But in my experience if a person is under 18 but over the age of consent, the prosecutor can always find some law to apply - contributing to the delinquency of a minor, corrupting the youth, something. For example, in Indiana, such conduct could be called a rude touching, and be prosecuted as battery, since lack of consent is not an element. I think the Indiana battery statute is unconstitutionally vague,
but it stays on the books unchallenged. The law employs creative redundancy, so removing one (badly-drawn) statute does not automaticly make something legal. On the other hand, I don't federal domestic relations law well enough to know which other statutes would be used instead.
9.30.2005 9:07pm
frankcross (mail):
Eugene, this is what you get for being fairminded in this world. Now you are tagged a "leftist" by Clayton Cramer, or at least a leftist sympathizer.
9.30.2005 10:21pm
JMRobinson (mail):
"It raises the age from 0 to 12 for boys and lowers it from 16 to 12 for girls, for a net raise in a "revenue neutral" sort of way."

That's an interesting way to look at it.
9.30.2005 11:27pm
Yankee_Mark:
I am so grateful to see Professor Volokh's posting here because he has hit upon the aspect of this whole Gisnburg report disagreement that was really bugging me ... but that I just could not seem to get a hold upon. From having the whole report. it seemed clear to me that this was an exhaustive effort to hone-in on the authors' percieved inequalities in gender. Much of what this report recommends I am in strong disagreement with on policy and ethical grounds, but putting that aside ... I simply could not see the Cornyn/Graham reading at all. But for all its faults from my point of view, this report has a clarity of intent and goes into incredibly minute detail in its diagnosis of perceived inequalities and reccomended remedies. So for me Occham just cannot support the idea that the authors would be recommending a change in the age of consent without at least explicitly addressing that they were doing so and explaining why.

But as Prof. V. has pointed-out, the Ginsburg report deals with virtually identical language/policy in 2 separate sections (1153 &2032) of Title 18 and clearly indicates that these sections would be addressed together and handled in the same way. Yet the Graham reading would have the absurd (at least to me) effect of the authors setting different ages of consent for Indians and Indian lands than it would set in other areas of Federal jurisdiction. For a report that is hammering away on the concept of equal treatment (albeit focused on gender inequalities) to be read as proposing such an inequality also runs into severe problems with Occham. Overall, this report has the subtlety of a sledgehammer, which makes it really hard for me to read into it changes and recommendations that did not get the same thoroughness of explanation and analysis as the gender issues ... or that got no explanation or analysis whatsoever!

I also agree that Prof. V's points are well taken with regard to polygamy &prostitution and certainly provide plenty of grist to attack this report from the right. That said ... I am simply mystified that Senators Cornyn &Graham (and others from the right) have not homed-in on these aspects and blasted away! Why instead they have preferred to go with the age of consent approach ... which even to the most charitable reading, is nowhere as supportable, simply boggles my mind. That is why I have clung to the charge of 'smear' in my opinions on the matter. Occham leads me to conclude mischief in their homing-in upon and hammering (in one voice) on such an issue which in the report is unclear at best (and being willfully twisted at worst) when this very report is wide open to clear &factual attack on other grounds. Grounds that would have nearly as much appeal to their political base, but in all likelihood, far less demagogic pizzazz.
10.1.2005 4:55am
Elliot (mail):
Don't be too hard on yourself professor.
10.1.2005 10:03am
NickM (mail) (www):
Yankee_Mark - if the statute as written were passed, would it change the age of consent to 12 generally? I believe under traditional rules of construction of criminal laws, the answer is yes. If that would be due to a drafting error, presumably the legislature would fix it quickly, but at least one child molester would have been released (or never charged) due to a mistakenly narrowed law.

Nick
10.1.2005 3:17pm
Yankee_Mark:
One should keep in mind though, that Ginsburg was not in the position of drafting legislation, but rather making a slew of reccommendations to legislators addressing scores of USC provisions. There would be plenty of reasons and opportunities that would be likely to see drafting errata caught and tightened-up before being enacted as statute.

Note as well that it is within the discussion section of Ginsburg's report where this particular drafting error occurs. Under recommendations, it says to "substitute the offense as set forth in S. 1400 Sect 1633" and this IS the correct reference. If the legislators replace the section as per the recommendation, they would get the correct Romeo & Juliet verbiage into the law.

Unless the legislative authors also made the exact same drafting error. Plus, there would be debate, amendment, massaging by both houses of Congress and probably a Conference Committee as well. While this process is not infallible, there would be little chance of Ginsburg's report leading to the lowering the age of consent to 12.
10.1.2005 4:06pm
murky (mail) (www):
Good of you to publish your reconsideration.
10.2.2005 12:29pm
murky (mail) (www):
Ginsburg's proposal was really toward criminalizing "love fraud" or "inequitable love." I suppose the next step would be to extend from disparities in age to disparities in institutional or social standing--professors consorting with students, celebrities with ordinary people, etc. Age obviously is just one crude correlate of charisma and suasive power, but given the laundry list style of many statutes, it wouldn't be hard to make one that incoporated others. The problem is that we aren't using age only as a crude measure of power but also of virtue. The older you get, the less virtue you have, and the less virtue you have to be stolen or injured. We could care less about treachary and debauchery between consenting adults.
10.2.2005 1:34pm