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Sex and Liberty:

Doug Berman (Sentencing Law & Policy) also asks, about the Wilson story (the 10-year prison term for a 17-year-old boy having oral sex with a 15-year-old girl): "Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?"

I think the matter is more complex than what Prof. Berman's "provocative question[]" suggests, in two ways.

1. Most obviously, the debate here is about conduct involving minors, and about the length of the sentence. To my knowledge, even Prof. Berman doesn't argue that if Georgia "prides itself on liberty," it must completely decriminalize sex between 17-year-olds and 15-year-olds. At the very least, a decision whether to outlaw sex between 17- and 15-year-olds is within a liberty-loving country's judgment, given that one underlying premise of liberty -- people's right to make choices -- assumes a competence to make choices that may well be lacking in 15-year-olds. And while the length of the sentence is relevant to whether the law is sensible, fair, or merciful, I'm not sure it tells us much about the state's commitment to "liberty," especially where minors are involved.

2. On the other hand, we need to acknowledge that the origins of the pre-2006 Georgia law, which had much harsher sentences for oral sex between 17-year-olds and 15-year-olds than for genital sex between 17-year-olds and 15-year-olds, stem from something far broader than just sex involving minors: To this day, a Georgia statute (§ 16-6-2) expressly outlaws "any sexual act involving the sex organs of one person and the mouth or anus of another," and punishes it with one to twenty years in prison. It was only a 1998 Georgia Supreme Court decision, Powell v. State, that decriminalized consensual oral sex (even between spouses!), by holding -- five years before Lawrence v. Texas -- that the state constitution protected such sexual autonomy.

As I understand it, the pre-2006 rules having to do with sex with minors stemmed from precisely this legal background: Consensual genital sex among adults was lawful, and when it was done with under-16-year-olds the law didn't treat it very harshly so long as the other party was 18 or younger. But consensual oral sex among adults was a crime, and there was no special solicitude for sex between two relatively young people. So while the pre-2006 rule as to oral sex with under-16-year-olds wasn't particularly contrary to liberty, it did stem from a rule that was indeed a substantial restraint on liberty -- a ban on what consenting adults, including consenting married adults, could do in their own home (and what 75% of adult Americans of all ages have in fact done, and what 60% find "very appealing" or "somewhat appealing" to receive, Michael et al., Sex in America (1994) (1992 data)).

Yet as I understand it was also a substantial restraint on liberty that had been prevalent (though, as in America, very rarely enforced) even in otherwise free countries (especially Anglophone ones) until recently. Some American states may be fairly late in decriminalizing such sex, but late by a matter of a few decades rather than centuries. The bottom line is that, despite libertarian views about liberty being indivisible, different countries have historically respected different forms of liberty -- America has been more liberal as to free speech (especially speech not related to sex) and, at least until recently, less as to sex; other countries have been the other way around; different countries have different views about economic liberties, about freedom to own the tools needed to defend one's life against criminals, and the like.

So the story, once one looks closely at it, sounds like what it is: One we might hear from a country that has had a relatively restrictive view of sexual liberty until quite recently, and still in some measure exhibits relics of that view, no matter what its views of other liberties might be.

James Ellis (mail):
Perhaps we should tone down our outrage. The story seems like little more than an instance of bad timing (in terms of the age of the participants and the evolution of the statutory scheme), in a state with a long history of regulating such conduct, within a country that was founded largely by Puritans.

Sometimes the results seem anomalous, but this is the price we pay, in a country of 300 million people, to have a representative system where we have the power to change the laws all the time.

If this were a one year sentence, would anybody seriously have a problem with it?

One ironic side effect of this is that the publicity surrounding the ten year sentence might very well deter other 17 year olds from engaging in this type of conduct in the future, notwithstanding the changed circumstances.
12.19.2006 1:27pm
Tongue in Cheeks:
It's question-begging to say that it's within a liberty-loving country's perogative to criminalize consensual sex between postpubescent sexually-mature people.
12.19.2006 1:33pm
Justin (mail):
"To my knowledge, even Prof. Berman doesn't argue that if Georgia "prides itself on liberty," it must completely decriminalize sex between 17-year-olds and 15-year-olds. At the very least, a decision whether to outlaw sex between 17- and 15-year-olds is within a liberty-loving country's judgment, given that one underlying premise of liberty -- people's right to make choices -- assumes a competence to make choices that may well be lacking in 15-year-olds."

I'm going to have to take partial exception to this portion. By definition, "liberty-loving" implies some commitment towards not outlawing things. To the degree that a country makes a judgment to outlaw the activity noted above, it should take a variety of factors into consideration - including its principles of liberty loving, the capacity of the 15 year old, AND the capacity of the 17 year old. Given what we know about, well, high school, as well as how people actually act, and given our mechanisms of enforcement, it seems like this kind of judgment could only be made by a government who seriously discounted its commitment to liberty.

In this sense, its pretty clear that the difference betweeen Georgia (who has this law), and say, New York (which I beileve has an exception of 36 months age difference between parties, but it may be 48 months), is not that Georgia thinks that a 15 year old is less mature (indeed, look at the minimum marriage ages of the two states) or that a 17 year old is more mature, but that Georgia places a different value on liberty when it comes to sexual issues. Anyone who believes otherwise is trying to argue theory in the face of obvious common sense.

Look, a 17 year old is a HS junior or senior, and a 15 year old is a HS freshman or sophomore. The idea that junior or senior boys don't date sophomore girls, or even that junior boys don't date freshman girls, is clear. And the fact that 15 year old sophomore girls have sex and will continue to have sex with the people who they date is also obvious, as it has been for years and as it will be for years. It is also obvious that the deterrent effect of this law on 17 year old boys (or 15 year old girls, for that matter) is ZERO.

Thus, I think only a govenrment that failed to sufficiently value liberty over competing interests would make this judgment.

Postscript: I think this is all true regardless of the issues of selective enforcement. The issues of selective enforcement in GENERAL cause serious concerns about liberty, particularly given that selective enforcement often considers other values that cannot be considered either by Professor Volokh or even by the legislature. These values will often have nothing to do with the capacity of minors.

Here, there are several possibilities for the selective enforcement, including the ones Professor Volokh have brought up (relating to videotape), the ones I brought up in a earlier thread (relating to prosecutorial abuse of discretion in an attempt to deny the Defendant his right to a fair trial on the issue that the prosecutor actually believed merited prosecution), and the one several other threads brought up (race). The second and third particularly raise serious concerns about not only the prosecutor's, but also the state of Georgia's (fully aware of this possible use of the law), love of liberty in passing this law.
12.19.2006 1:33pm
Justin (mail):
James, if we don't act outraged, how will our "representative system where we have the power to change the laws all the time" actually work? If nobody is outraged, no laws will be changed.
12.19.2006 1:35pm
Justin (mail):
"It's question-begging to say that it's within a liberty-loving country's perogative to criminalize consensual sex between postpubescent sexually-mature people."

It's pretty clear that Professor Volokh disagrees with the characterization of a 15 year old girl as "sexually-mature." As my post shows, I am closer to your view than his, though I am not sure I agree entirely with either. Depends, of course, on the definition of the word "mature," Dworkin's famous linguistical trap.
12.19.2006 1:37pm
Tek Jansen:

If this were a one year sentence, would anybody seriously have a problem with it?


I'd hope that most people would have a problem with it. If genital sex between two people is legal, why should other types of sex be illegal for those same two people?
12.19.2006 1:39pm
Tongue in Cheeks:
To be more explicit, by "sexually-mature" I meant capable of reproducing. By the way, my late mother-in-law got married at the age of 15, and my paternal grandmother was married at the age of 14.
12.19.2006 1:43pm
dew:
"It is also obvious that the deterrent effect of this law on 17 year old boys (or 15 year old girls, for that matter) is ZERO."

Cite? If it so obvious and absolute, I think it shouldn't be too hard to find one.
12.19.2006 1:55pm
Justin (mail):
dew, it's intuitively obvious, but:

http://www.guttmacher.org/pubs/journals/2903097.html

And that the VERY minor deterrence that was considered POSSIBLE under the survey could ENTIRELY be explained by THIS SURVEY.
12.19.2006 2:06pm
Eugene Volokh (www):
Tek Jansen: Georgia law does not provide that genital sex between a 17-year-old and a 15-year-old is legal; such sex is a crime, but only a misdemeanor, punishable by up to a year in jail.
12.19.2006 2:17pm
RainerK:
I'm sorry to have to state it like that, because I know I will look to many like a troll or worse, but try to entertain the thought:

"...outlaws "any sexual act involving the sex organs of one person and the mouth or anus of another," and punishes it with one to twenty years in prison."


Up to 20 years???? For that???
Is anybody out there still not convinced that laws like that are an obscenity rather than what they're trying to punish?

I mean, seriously, how can one with a straight face compel young people to recite the pledge of allegiance to a system that tolerates throwing a large number of people in jail for essentially nothing?
As regards this statute, and many others, all discussions of finer legal points seem senseless to me.
If I may propose a radical solution: Get government out of people's private lives completely and especially their sex lives! This includes so-called minors. They have parents and the State ain't the parent and should not be. No matter what theories of "consent", "appropriate behaviour" or "victimisation" are thrown about.

Just because the majority of citizens tend to their own business and don't spend time to push law makers to repeal such outrageous statutes, doesn't mean the laws promote justice. If legislatures are too political or irresponsible to do the right thing, the remedy is to fight such laws and those that enforce them. Does this promote lawlessness? To a degree, yes. So be it.
12.19.2006 2:23pm
AF:
At the very least, a decision whether to outlaw sex between 17- and 15-year-olds is within a liberty-loving country's judgment, given that one underlying premise of liberty -- people's right to make choices -- assumes a competence to make choices that may well be lacking in 15-year-olds.

It's one thing to say 15-year-olds shouldn't have sex, quite another to say that 17-year-olds should be criminally prosecuted for having sex with them. How can 15-year-olds be incompetent to make the same judgment for which 17-year-olds can be imprisoned? Wouldn't a country that loves liberty make a far larger space between paternalism and criminalization?
12.19.2006 2:28pm
James Ellis (mail):
Tek-my understanding (may be wrong) is that genital sex between a 17 and a 15 constitutes a misdemeanor with a possible one year sentence. If the judge had handed down that sentence here, I still think that very few would have a problem with it (other than the co-defendants that pled and got five years).

Justin-I generally agree with you that sometimes outrage is a good thing and that, yes, it does help get laws changed and that's often a good thing too. But here, the outrage has already been internalized into the system, and the law was already changed. So what's left to fix? Is the judge (or the Pardon board) retroactively supposed to go back and make a law retroactive, when that law specifically dislaims that intent?

That may be just and merciful and proportionate and even sexually liberating for some subset of society, but it certainly doesn't look like a triumph of the representative/legislative process!

We've got a big country here with lots of laws. Let them be clearly drafted (as those in question here certainly seem to be) and let the citizens adjust their behavior accordingly.

Kids--be careful what you ask for. You might get it.
12.19.2006 4:04pm
htom (mail):
It used to be a joke among college students in Minnesota that the only legal sex was indoors between a man married to a woman in the missionary position. And that if you were bored, the statutes would provide instruction on lots of interesting things to do. It's been a while since I looked, but I doubt that it has changed much. Adultery is still only possible by a married woman, IIRC.
12.19.2006 9:46pm
BruceM (mail) (www):
Everyone is forgetting that the Constitution doesn't apply when children or drugs are involved... you know, the "Children Exception" and the "Drug Exception" to the Constitution. I thought everyone knew that. Here a child is labeled the victim, as such, the Constitution ipso facto does not apply. I'm not an expert on the Georgia state constitution, but I'd imagine there are children and drug exceptions there, too.
12.20.2006 1:05am
Ron Hardin (mail) (www):
The underlying social fact is that respectability for a woman comes from how good a deal she makes for herself in a mate.

The law's initial impulse is to get at unequal abilities to make sensible deals owing to age difference, aimed at protecting the woman.

It starts to go wrong when it thinks it can make the sexes equivalent - there is no social need to make a good deal for men, indeed their low standards are what makes them pigs, but of course is also what gives women a chance with them.

Then it gets tied up in the legal age of majority as well.

If it were a computer program, at this point, you'd toss the mess out and start over with a new design. Too many interest groups conflicting.
12.20.2006 4:55am
Tom952 (mail):
It isn't unusual in Florida for a defendant to receive a highly publicized harsh sentence, and then have it quietly commuted to something reasonable a few months later. I presume the rational is to discourage similar conduct.

(BTW, sometimes they don't commute it a few months later.)
12.20.2006 9:10am