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The Academic Credo

(or at least An Academic Credo): A commenter on my age of consent post writes,

This is a perfect example of why people claim professors are out of touch with reality. When someone can accurately but facilely summarize your suggestion with "he wants to change the law so that adults should be allowed to have sex with high school sophomores," you lose. No further inquiry, no appeal, no nothing: you're automatically some lunatic that thinks something approaching pedophilia is OK.

Some curious thoughts are best kept to one's self....

I've heard this reaction before, not just as to discussions of the age of consent but also as to other matters. Other commenters seem to say something similar, some even calling — with no substantive reasons — for me to take down the post, with no real explanation). And it strikes me as worth discussing this attitude in more detail, because it does reflect something important about the academic approach, an approach that, contrary to the commenter's view, strikes me as exactly right.

Here's what I see as the academic credo, or at least the right sort of academic credo: It is better to know than to believe. It is better to understand why rather than just accept the what. Much of the time (though certainly not all the time), the things that we think are obviously and clearly "reality" are actually not. Even when our intuitions are right, we gain much from understanding why they are right. So curious thoughts about why our assumptions are right — and whether they are right — are indeed precisely what people (especially professors) should be thinking and expressing.

Let's use this very post as an illustration.

1. To begin with, let's talk briefly about the "reality" with which I'm supposedly out of touch. Recall that my post chiefly discussed 16-year-olds having sex with 30-year-olds, which many states prohibit. But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There'd be no need to "change the law" to allow this in most places; one would need to change the law to forbid it.

Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves "out of touch with reality," whatever exactly that means. I certainly don't want to argue that the majority view is always right. But it does suggest that we can't lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is "luna[cy]."

But wait, there's more: In France, the general age of consent is 15. In Austria, Germany, and Italy it's, generally speaking, 14. In Spain it's 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. Again, these decisions may well be wrong or even "creepy" (a term three other commenters used to discuss my post, which chiefly focused on 16-year-olds). Yet when nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there's an important discussion to be had here, and that the answer is at least not open and shut.

More broadly, by the way, this is indeed a familiar practice of professors: To point out that our intuitive assumptions — however firmly held — are actually not shared by many other people, including in places that aren't very different from our own, and to suggest that this might shake our faith in those assumptions (though again of course it's not proof that the assumptions are false). And I think it's a sound practice, one that should be taken seriously as an advantage to thinking through our beliefs rather than just casually accepting them.

2. More broadly, professors — and many non-professors — know well how many deeply held assumptions about "reality," assumptions that didn't seem to require "further inquiry," proved to be quite wrong. That's most obvious with regard to the physical and life sciences, but it's also true about economics and morality.

Focusing on morality, consider how deeply attitudes have changed over the centuries about such fundamental moral questions as slavery, the role of women, premarital sex, homosexuality, and even the very issue involved here, which is to say the age of consent. Recall that in England the age of consent until the late 1800s was set at 12.

Again, it may well be that modern law is right about the age of consent (which I stress again, is mostly set at 16 both in the U.S. and in Western countries more broadly, not at 18) and the views of the past were wrong. I'm pretty sure that they were wrong as to age 12, and 16 might well be a sensible dividing line. Yet what do you think are the chances that, however wrong we now recognize many past moral views were, our deeply held intuitive moral assumptions today are all completely right? Shouldn't that plant at least a seed of self-doubt? The "professors" who "are out of touch with reality" believe (at least when they're at their best) that public questioning in such matters is better than undefended confidence, or silence.

3. Finally, let's say that the commenter's substantive intuition — that sex between adults and high school sophomores (the 16-year-olds that I discussed in my post) — is right, and the dominant view of American and Western law is mistaken. Surely it's still better to publicly discuss what the reasons for this might be, and why they are right.

(a) Most obviously, it's necessary to persuade the "lunatic[s]" who support the legality of "something approaching pedophilia" yet somehow managed to make their views made into law in most American states and most European countries. I take it that just calling them lunatics and urging them to keep their views to themselves won't persuade them, right? It would help to have a detailed explanation.

(b) It should also be helpful to reassure thoughtful and responsible backers of higher ages of consent. If someone is being sent to prison based on a law you advocate, I'd think you'd want to have some confidence that you're right. And it's hard to have that confidence in any thoughtful way, it seems to me, if you've just shushed those who take a contrary view, as opposed to engaging it (even welcoming its airing) and explaining why it's mistaken.

(c) It's also necessary to deal with all the important details related to implementing the law. Say that allowing adults to have sex with 16-year-olds is indeed wrong. Should the age of consent then be 18? Or 17? Or 17 1/2? If there is to be an exception for sex between people who are close in age, how much should the allowed difference be? If an act is criminal, how much resources should we devote to prosecuting it? How willing should prosecutors be to accept pleas to reduced charges? What should the prison sentences and other punishments be for committing the act? It's impossible to sensibly answer these questions without thinking hard about exactly why we're setting the age of consent at a particular point.

So, my bottom line: Asking these questions, and questioning our intuitions, is more in touch with reality — including the reality that our intuitions are often (though of course not always) wrong — than just taking our assumptions for granted. And when we professors ask for logical arguments even in support of that which many people see as obvious, it seems to me that we are doing exactly what our jobs call for.

UPDATE: I originally said that the age of consent in Canada was 14 until recently; as the revised text, makes it clear, it's actually 14 for a few more days. Thanks to Canadian prosecutor Andrew Barg for setting me straight on this -- always good to get even a little closer to "reality."

Anderson (mail):
I haven't read all the threads, but I'm amazed that EV is taking any heat for this.

What is wrong with you people?

If a 16YO girl shouldn't be having sex with a 30YO, then she shouldn't be having sex at all. But that's not what the law says. Excuse a law professor for actually thinking about the law.

P.S. -- Dear Spain: thirteen? Come on now.
4.25.2008 1:44pm
Q the Enchanter (mail) (www):
I'm with Anderson. Amazed.
4.25.2008 2:00pm
Q the Enchanter (mail) (www):
"it's actually 14 for a few more days"

Does this mean young couples are going to have to separate until the younger partner reaches nonage? Or are they grandfathered in (so to speak)?
4.25.2008 2:03pm
swg:
That was some pretty heavy stuff, Professor Volokh. I'm a bit surprised you felt strongly enough about those responses to write it, but hey, it's great you did, because now you can just link to this post in response to future, similar criticism.
4.25.2008 2:04pm
NatSecLawGuy:
*In a sarcastic tone* Critical thinking, questioning norm assumptions . . . I always knew there was some radicals on this site. Especially the one's with surname: "Professor."
4.25.2008 2:08pm
Temp Guest (mail):
Actually, Professor Volokh could even strengthen his argument by pointing out that, due to the secualr decline in age at menarche over the past half century when these laws were originally written most 16 yo girls had the sexual maturity of a contemporary 11 yo, 12 yo, or 13 yo girl. My personal observation to my sister, after picking up my nephew at his elementary school, was that many of the older girls I saw there were more physically matured than the high school girls I remember from my youth.
4.25.2008 2:09pm
Pyrrhus (mail) (www):
I love this blog.
4.25.2008 2:12pm
ERH:
I think the reason the question elicited such visceral relations is because no matter what the law is most people find the idea of a 30 year old having sex with a sixteen year old essentially wrong. I would also be willing to wager that most Americans are unaware of the age of consent in their states.

Unlike some who say the question should have never been posted, I fully accept discussions of ideas I don't agree with. The problem becomes when a question is posted that so offends sensibilities whether be the age of consent or the roasting and eating of Irish children, the initial reaction of many people is to ignore the argument and speak from the gut.
4.25.2008 2:22pm
alias:
I completely agree with this post, but 16yo girls having sex with 30yo men is still creepy. Perhaps not illegal, perhaps not creepy in all instances, and perhaps I should think more about why it's creepy, but it's still creepy.
4.25.2008 2:25pm
CDU (mail) (www):
The problem becomes when a question is posted that so offends sensibilities whether be the age of consent or the roasting and eating of Irish children, the initial reaction of many people is to ignore the argument and speak from the gut.
If the standard for forbidding discussion is that a subject might offend someone so much they eschew logical argument and speak from the gut, that would eliminate virtually every post on this blog.
4.25.2008 2:29pm
Sigivald (mail):
The point this brings to my mind is the abuse of "pedophilia" that's run rampant these past few years.

A pedophile, definitionally, wishes to have sex with children, that is, pre-pubescents.

Disgust and disdain for that desire is (nearly) universal, and - I assert - quite rightly, for biological and social reasons as well as that of the likelihood of abuse of authority and psychological damage to the pre-pubsecents involved.

In no way, however, is a 16 year old (at least not the vast, vast, vast majority of them, which is what the law has to deal with) pre-pubscent, or even close to it; thus there is no "approaching" pedophilia involved.

(If there was, for that matter, the completely un-controversial idea that 16 year olds can properly have sexual desire for each-other would be "approaching pedophilia" and thus utterly unwholeseome.)

One can, as Professor Volokh points out, argue that 16 is an ill-chosen legal cutoff and that another age might be more ideal; I do not believe that one can make an intellectually rigorous argument that the problem with the 16 cutoff is that it's "approaching pedophilia".
4.25.2008 2:32pm
c.gray (mail):

If a 16YO girl shouldn't be having sex with a 30YO, then she shouldn't be having sex at all.


Doesn't follow. That depends a great deal on why we are prohibiting sex between 16 year olds and 30 year olds.

My own thought is that changes in US &UK culture simultaneously raised the age at which women were married while eroding traditional parental control over their teenage daughter's behavior generally and their sexuality &marriage choices in particular. Increasing the age of consent was an effort to assist parents in keeping their teenage daughters away from traveling salesmen and/or pimps. Note that such laws usually exempt intercourse within marriage, which presumes that marriage can be contracted before the age of consent.

I'd be willing to bet that raises in the age of consent largely coincide with the Victorian era moral panic about prostitution in England and with waves of moral panic about "white slavery" in the US.

These laws have now been in place (in the USA, at least) long enough to instill a taboo in our culture about adult-teenage sexual contact, separate and apart from the practical problems the laws were meant to resolve, that did not actually exist at the time the laws were made.


Extension of these protections to cover males as well as females is a relatively recent development, and a result of this relatively new taboo. Alterations of the law to exempt partners relatively close together in age is an even more recent development, and is a result of the fact that the cases they are meant to exclude from the law's action don't really run afoul of the taboo, making the punishment of the young men involved seem unjust and arbitrary (and not infrequently, racist).
4.25.2008 2:35pm
A. Zarkov (mail):
A woman reaches her peak of sexual attractiveness at about 18. As such it makes perfect sense for the age of consent to be 16 or even lower. Or as I once heard it put: "If they're old enough to bleed, they're old enough to butcher." Only in our warped age could people want to criminalize sex with a 16 year old.
4.25.2008 2:35pm
Consenting:
Dear Eugene,

First, I encourage you to avoid the phrase "planting the seed" when discussing age of consent laws.

Second, thanks for advertising that those interested in sex with 15 year old Canadian girls have less than one week to legally act on it.

Third, what, as a law professor, do you make of the fact that it is legal, by age of consent, for 16 and 17 year old women to pick older men as sex partners but, as I understand matters, it is illegal for them to earn money by filming these sexual interactions. I believe actors/actresses in the adult movie industry must prove they are 18 or older. This seems discriminatory given age-of-consent legislation. IANAL
4.25.2008 2:41pm
ERH:
CDU: I never suggested that such discussions should be forbidden, only that one should expect such reactions.
4.25.2008 2:41pm
Dilan Esper (mail) (www):
I don't think Professor Volokh is really right about the lack of justification for Romeo and Juliet exceptions-- the theory is that while sex with an underage person may be wrong, teenagers fooling around with each other are less morally culpable (a traditional metric for criminal liability) than older people who seek out underage sex partners.

That said, I think this is a great post. We all have a bunch of preconcieved notions we bring into these debates. And many of them are based on nothing more than the traditions we have inherited, our religious backgrounds, our political ideologies, etc. And Professor Volokh is right, enough of that has turned out to be BS over the years that these things shouldn't be relied upon as reliable indicia. It may seem unacceptably morally relativistic to look at the data, but looking at the data usually yields better results and new insights.

I don't live up to this standard myself all the time. But it's the right way to go.
4.25.2008 2:43pm
anym_avey (mail):
I think part of the reaction that EV's interlocutor had comes from the very recent western tendency to treat adolescence as a distinct stage of maturation which, in practice, often becomes a maturation no-man's land. The body is sufficiently developed to be capable of full-time work and adult sexuality, but the mind is delayed from maturing because 'real' adults infantilize the teenager in terms of expectations and responsibility.

It wasn't that long ago that a 14-16yo male was a man capable of taking responsibility for the family property and earning an income, and a woman of 17 or 18 could be a school teacher of both males and females who, if they were approaching the end of their education, were perhaps only a year or two younger than said teacher.
4.25.2008 2:48pm
Fub:
Prof. Volokh quotes a commenter:
Some curious thoughts are best kept to one's self....
then proceeds to state a principle of academic inquiry, and address the factual reality of variance among various jurisdictions' and countries' ages of consent. That's my characterization of it, but I think it's fairly accurate.

I would suggest here that the "reality" to which the commenter referred is not the same "reality" which Prof. Volokh addressed, although both are empirically undeniable. I think that the commenter's tone was more ironic than imperative; that the commenter was addressing the foolishness with which many respond to any statements on a subject which "pushes their buttons" if given a scintilla of an opening.

The commenter's "reality" (again, my characterization) is that whatever one says on a controversial and emotion laden subject, no matter how objectively true one's statement, it will attract attacks (and sometimes more attacks than responsive comments) based on every possible misinterpretation of one's remarks.

In other words, some subjects just attract nonthinking and emotion laden responses more than other subjects.

That said, I'm quite happy to read Conspirators' posts on this or any other subject here.
4.25.2008 2:53pm
Mike S.:
One issue underlying much of this discussion is that the age of physical maturity (i.e. menarche or the male equivalent) and the age of social maturity (i.e. when one is ready to take on full adult responsibilities) have been moving in opposite directions for a century or so. My son's peer group (college seniors) seems less mature than many high school seniors I knew in the 1950's. (although some of that is probably changes in my perspective)
4.25.2008 2:56pm
Joe Bingham (mail):
Truly great post. Thanks.

"More broadly, professors — and many non-professors — know well how many deeply held assumptions about 'reality,' assumptions that didn't seem to require 'further inquiry,' proved to be quite wrong."

You say this is most obvious in the physical sciences. I think it's probably more evident in people's reaction to economics--just look at the response J.F. Thomas and others gave to Steven Landsburg when he was here. Economics is the science of unintended consequences; it nearly always challenges assumptions and evokes a viscerally negative response from people. A lot like people's response to your post actually.

I agree that this phenomenon's visible everywhere in academia. I just think economics provides the most telling examples. Besides the fact that economists' findings tend to evoke the same viscerally negative response from other academics.
4.25.2008 2:59pm
George Weiss (mail) (www):
i agree the schemes are pretty arbitrary:
take statutory schemes such as my home state: MD's:

2nd degree rape: 4 year difference and victim under 14 (felony)-if victim is under 13 enhance penalty
3rd degree sex offense: one partner over 21 and victim 15 or 16 (felony)
4th degree sex offense: school employee of age>21 in authority over a victim 17-20. (misdemeanor)

that's it-as long as it isn't forcible of course

this means great disparities even when the two actors have the same difference of age:

18 and 14=(difference of 5 years)=big felony
21 and 16=(still difference of 5 years)=smaller felony
20 and 15 (still difference of 5 years)=fine

or:
18 and 14 (difference of 5 years)=RAPE in the 2nd!
15 and 19 (difference of 5 years)=no problem

and

17 and 13 (possible life imprisonment for victim under 13..if offender tried as an adult)
but
16 and 13 (not even a juvenile offense)

it also creates:

21 and 16 (difference of 5 years)=big felony
but
50 and 17 (difference of 23 years)=legal
4.25.2008 3:01pm
Rodger Lodger (mail):
Fifteen years ago or so there was a notorious sex prosecution involving teenaged boys in a middle class NJ town who had had sex, including possibly penetration with an object, with a retarded girl, who was of the age of consent. The assumption of 99.99% of the population was that this girl could not have actually "consented" to gang sex with this cynical group of athletes (forget their sport). There was an indication that she believed they liked her. She had definitely expressed assent. I was fortunate enough to know the one person in the state who wanted to explore the issue, including whether the case reflected a notion that the less intelligent could not be allowed to have an unusual sex life the way the rest of the population was clearly allowed to. I saw I was fortunate enough to know this person, because it was clear that nobody, but nobody, was doing anything but taking their assumptions for granted. For what it's worth, the boys got light sentences, I think less than a year, which of course led to another round of outrage.
4.25.2008 3:03pm
Kingsley Browne (mail):

EV: "Asking these questions, and questioning our intuitions, is more in touch with reality — including the reality that our intuitions are often (though of course not always) wrong — than just taking our assumptions for granted."


I'm wondering what it means in this kind of context to say that our intuitions are "wrong." Does this mean not strictly in accordance with pure logic? The fact that emotions routinely play a role in decision-making does not necessarily make the decisions "wrong" or "less right" than they would be if we gave in to pure logic.

Some things strike us, probably in part for evolutionary reasons, as "icky." ("Icky" is the technical term, but it means basically the same thing as the term "creepy," used by an earlier commenter). Should a brother and sister be allowed to marry? Virtually all societies would say no. Why not? If the answer we give today is "no" because of the the adverse genetic consequences of inbreeding, does the answer change if one or both of them are infertile? Should two Tay-Sachs carriers be prevented from marrying for the same reason? Should an adopted boy be prevented from marrying the biological daughter of his adoptive parents? Many people, I believe, would say that the brother and sister marrying each other, whatever the prospect for genetically impaired children, is "icky" and should not be allowed. My guess is that few people would have that reaction to the Tay-Sachs carriers.

It is, of course, useful to question our assumptions and intuitions. It's not clear, however, that we should necessarily abandon our views on a particular issue just because we cannot give a fully satisfying rational explanation. One reason is that even when people do provide such an explanation, it is often a post-hoc rationalization of their own intuitions (a fact that they may not actually be aware of). Another is that it is simply not a realistic expectation when it comes to the kind of "hot button" -- i.e., emotionally laden -- issues that are typically involved when these conflicts arise.

I guess a final reason that I would not condemn those who reach their conclusions based upon a gut reaction and cannot articulate a fully satisfying logical justification is that if that were to become the standard, then those who are best at giving logical reasons are likely to have more power than those who are not so adept, even though their moral intuitions may be no better. (I'm reminded of the comment by William F. Buckley that he would rather be governed by the first 2,000 people listed in the Boston phone book than by the Harvard faculty.)
4.25.2008 3:05pm
Clayton E. Cramer (mail) (www):

i agree the schemes are pretty arbitrary:
So is Red means stop, and Green means go. Making the age of contract 18 is arbitrary--there are lots of 17 year olds, some 16 year olds, and perhaps a few 15 year olds who are mature enough to make adult decisions. And there are even a few 30 year olds that seem to be incapable of such decisions. But we have to draw a line somewhere. In the interests of providing clear notice and efficiency, we set arbitrary age limits on a lot of this stuff. The alternative would be to have every young person go before a maturity panel and decide whether you qualify as an adult. And that just moves the arbitrariness somewhere else.
4.25.2008 3:15pm
Clayton E. Cramer (mail) (www):
A. Zarkov unintentionally reveals too much:

A woman reaches her peak of sexual attractiveness at about 18. As such it makes perfect sense for the age of consent to be 16 or even lower. Or as I once heard it put: "If they're old enough to bleed, they're old enough to butcher." Only in our warped age could people want to criminalize sex with a 16 year old.
When a woman reaches "her peak of sexual attractiveness" would be a valid basis for determining age of consent if the purpose of setting such an age was for the benefit of men who want a sexually attractive partner. But that, plus your comparison of a woman to livestock, tells me a lot about your view of the purpose for setting an age of consent law--and even lower.

Only a very warped person would argue that your desire for sexual gratification with a teenaged girl--which you liken to slaughtering an animal--justifies lowering the age of consent.
4.25.2008 3:19pm
Aultimer:
Excellent post! Needs the typo fix below.


EV: Finally, let's say that the commenter's substantive intuition — that sex between adults and high school sophomores (the 16-year-olds that I discussed in my post) should be discouraged— is right,
4.25.2008 3:23pm
Jen:
I grew up in a state where the age of consent was 14 (with age limitations between the partners) and 16 generally. When I was a teenager, this made complete sense to me. Let's get real- these laws don't deter older teenagers from having sex with whomever they want to have sex with.

With that said, I have also never met a 16 year old girl that consented to have sex with a 30 year old man except in a very few instances where the girl had been abused in the past and/or had abnormal boundary/daddy/neediness issues. The normal teenaged girl reaction to the 16/30 scenario is "EEEWWWW". I did know of a few girls that had boyfriends in their early 20s at most, and the typical high school girl reaction to even that seemed to be "What is wrong with that guy that he has to cruise the high school to get dates- creepy!"

Even though the law in many places allows for consensual 30 yr old on 16 yr old action, there isn't likely a ton of it going on because of the normal "ickiness" of it to the teen girls. When people talk about how it was more common historically, it was also more common historically for women to have fewer options than they typically have today, and many engaged in early marriages for more practical than romantic reasons.

Turning back to what likely helped inspire this series of posts, This normal "icky" reaction is part of what makes it so hard for a lot of us to believe that the 16 year old FLDS wives were really enthused to "marry" some 50 year old guy with 8 other wives and that they still would stil would have chosen to give meaningful consent to that if they had other options (it appears they did not).
4.25.2008 3:24pm
Clayton E. Cramer (mail) (www):

Fifteen years ago or so there was a notorious sex prosecution involving teenaged boys in a middle class NJ town who had had sex, including possibly penetration with an object, with a retarded girl, who was of the age of consent. The assumption of 99.99% of the population was that this girl could not have actually "consented" to gang sex with this cynical group of athletes (forget their sport). There was an indication that she believed they liked her. She had definitely expressed assent.
In many states, there is actually a legal presumption that the retarded are incapable of giving consent, and for much the same reason that an unconscious woman is presumed to have not given consent--lack of capacity. And guess what? The mentally retarded often lose a number of other rights, such as those involving contracts, for the simple reason that there are some presumptions that they lack the capacity to make these decisions. Now, you might want to argue that the parens patriae doctrine that underlies this is obsolete, or excessively puritanical. But you don't seem to want to see that what drives such laws is a desire to protect a mentally retarded adult from manipulation and exploitation. How is this any different from a law that protects a retarded person from liability for a contract to make monthly payment of $1000 a month for life for a subscription to a monthly magazine?
4.25.2008 3:25pm
wooga:
I think anym_avey's post is exactly right. Most of the outrage over "16 year old consent" is a result of infantilizing (spelling?) 16 year olds. They may be naive, but no more so than most of the 21, 25, and 30 year old population out there. And they may not be able to fully appreciate the long term risks.

But those are all factors of education, not capacity to reason. If we are going to hang the age of consent on 16 year olds not knowing enough yet to make an informed decision, then we would be just as justified to outlaw 25 year olds from having sex unless they first passed a sex ed test. That would just be silly. So the proper test is whether someone has reached the age of reason, and then picking an age where we decide "enough" of the population will statistically have reached the age of reason. There is virtually no difference in the reasoning capabilities of a 16 and 18 year old, and I find nothing abhorrent about a 16 year old age of consent statute (although I certainly wouldn't partake - I find 25 to be the superior age for female physical attractiveness)
4.25.2008 3:26pm
wooga:
Incidentally, I favor binding 16 year olds to written contracts as well. I remember all too well trying to figure out how to use the "can't bind a minor to a contract" rule to scam people when I was 17.
4.25.2008 3:31pm
Clayton E. Cramer (mail) (www):

With that said, I have also never met a 16 year old girl that consented to have sex with a 30 year old man except in a very few instances where the girl had been abused in the past and/or had abnormal boundary/daddy/neediness issues.
And those are the cases that age of consent laws are supposed to handle.
4.25.2008 3:32pm
Eugene Volokh (www):
Kingsley: I agree with much of what you say, and I too "would not condemn those who reach their conclusions based upon a gut reaction and cannot articulate a fully satisfying logical justification." But I would condemn those who don't seek a logical justification, and those who try to shush those who do seek the justification.

And those who are best at giving logical reasons probably should have extra influence (though not exclusive influence), given the usual value of logical reasons -- all the more reason for people on all sides of the debate to try to improve their facility at giving logical reasons.

Finally, as to evolutionary reasons for finding something to be icky, those may often be important and worth considering. But my guess is that they don't tell us much about sex between older men and 16-year-old women, which throughout much of human history was (to my knowledge) viewed as entirely normal, for understandable evolutionary reasons to boot.
4.25.2008 3:37pm
George Weiss (mail) (www):
clayton-

first, at least in MD, its not quite like the age of contract or voting or buying cigarettes (which appear to all be that same 18 to be an adult). All those things hinge on that one variable, whether that person is an adult. Here, we are hinging it on two things and in so doing, creating incredibly complex outcomes.

In sexual cases, neither the age of the victim nor the age of the offender is enough information by itself. I.E, in MD 21 and 16 not ok, 20 and 16 is fine-because the offender's age changed-(even though he was an adult in both cases and she was a minor in both cases) but 16 and 12 is imprisonable for life if the guy is tried as an adult, while 16 and 13 is fine because the victims age changed. (even though they are both minors in both cases). Way more complex than being a minor or not.

further, i think the bigger difference is that with contracts-when the kid makes a false representation of age-thats usually estoppled them from claiming inability to contract.

in contrast-despite this complex matrix of numbers telling you when and when not to have sex, mistake of age is usually NOT a defense as its strictly liable (yes here in MD with this particular scheme too).

there are also alternatives other than the "stand him up in front of a board to determine ability to consent." A simple one? no majors and minors together unless its within 4 years. Or you might make mistake of age an affirmative defense that the defendant must prove beyond a preponderance of the evidence-which would eliminate most people getting off on 'you can;t prove i knew' and also allow people to take a drivers license as a proof without worrying about a fake ID and then going to prison for it later).

but those alternatives require logic-and the statues are made with outrage
4.25.2008 3:41pm
Extraneus (mail):
From the time of Aristotle, who proposed it, it was thought the the universe was permeated with a substance known as "the liminiforous Ether," which was the medium through which light was able to propagate. In the late 19th century, when concepts of electromagnetic waves were being understood, most famously by Maxwell and his Equations, the Ether was thought to be their propagation medium as well. So ingrained was this concept that it pervaded the intuition of physists for centuries, who never questioned it until the so-called Michaelson-Morley experiment implied the non-existence of the Ether in 1887. Using their result, Einstein refuted the existance of the Ether and developed his special theory of relativity without it.

How this relates to plaid skirts and knee socks is still largely an open question.
4.25.2008 3:42pm
Clayton E. Cramer (mail) (www):

They may be naive, but no more so than most of the 21, 25, and 30 year old population out there. And they may not be able to fully appreciate the long term risks.

But those are all factors of education, not capacity to reason.
You are correct that some of the problem is that our society has tended to delay maturity among teenagers--in some ways, more so than 50 years ago. But some of this delaying of maturity is for a very good reason: a lot of us had to grow up fast because we grew up in a much poorer society than we live in today. Both of my kids had (or are having) the chance to complete college, and to make that possible, I provided the financial support. Did this delay their maturing, relative to me? Absolutely. And I wouldn't have it any other way. Growing up too fast can be quite destructive.

Concerning the inability to appreciate long-term risks: I'm not sure that this is as much social as you might think. I've read enough accounts from Colonial America to know that most of the stupid things that teenaged boys were doing when I was young (and I'm fortunate to have all my fingers and toes) they were doing in 1810, and 1650. These were generally inability to appreciate long-term risks.

Some of that ability to appreciate long-term risks is a matter of learning, no question. But I remember seeing a graph of accidental death rates for males by age across multiple cultures and centuries--and the shape of the curve (although not the death rate) was remarkably similar. Testosterone poisoning causes a lot of stupid actions by teenaged boys. There was a reason that one of the early Indiana codes prohibiting racing horses in town--and for the same reason we have "exhibition of speed" rules for cars today.
4.25.2008 3:42pm
Jen:

And those are the cases that age of consent laws are supposed to handle.


Exactly. I'm not arguing that 16 is too low. I'm saying that there's no point in getting riled up about the 16/30 scenario because even if you give 16 year olds the legal right to consent to it, most 16 year old girls won't want to anyway.
4.25.2008 3:46pm
Clayton E. Cramer (mail) (www):

But my guess is that they don't tell us much about sex between older men and 16-year-old women, which throughout much of human history was (to my knowledge) viewed as entirely normal, for understandable evolutionary reasons to boot.
Rodney Stark's book about the rise of Christianity in the Roman Empire argues that a variety of factors caused Christianity to become a majority in a surprisingly short time. One of those factors was that Christianity encouraged waiting until girls were 18, and also had a more egalitarian view of a woman's choice about marriage than classical civilization. Stark makes the point that Roman law set the age of marriage at 12--and the law was frequently ignored. As you might expect, many 12 year olds had not entered puberty in that period (since this is largely determined by nutrition). Physical damage from premature sexual intercourse was common, and almost certainly played some role (along with widespread non-vaginal intercourse) in reducing pagan birth rates.

Not everything that is "normal" is necessarily healthy or productive. If you've ever watched two male ducks fight over a female until they've killed, you know what I mean.
4.25.2008 3:48pm
Fub:
Clayton E. Cramer wrote at 4.25.2008 2:32pm:
[quoting Jen at 4.25.2008 2:24pm]:
With that said, I have also never met a 16 year old girl that consented to have sex with a 30 year old man except in a very few instances where the girl had been abused in the past and/or had abnormal boundary/daddy/neediness issues.

And those are the cases that age of consent laws are supposed to handle.
But is the same true of males? I recall that at 16, I or any of my immediate male cohort, would have lept at the opportunity for a sexual dalliance with a 30 year old woman. We certainly weren't all the product of abusive homes or other emotional trauma, nor "abnormal" in any way I know of.

Of course these days, some of the more PC or prudish would likely want laws to prosecute people my age for having girlfriends or wives under 40.
4.25.2008 3:51pm
Clayton E. Cramer (mail) (www):

I'm saying that there's no point in getting riled up about the 16/30 scenario because even if you give 16 year olds the legal right to consent to it, most 16 year old girls won't want to anyway.
The law isn't on the books for "most" 16 year old girls. It's for the 30 year olds that can't keep their hands off girls who, by your description, are emotionally vunerable.

I am always amazed how many of the posters here (not saying you) would get enraged at an adult "seducing" a 16 year old into working in a dangerous job like coal mining but don't see anything wrong with a 30 year old manipulating a 16 year old into something that can and often does result in pregnancy, STDs, and emotional suffering.
4.25.2008 3:52pm
Clayton E. Cramer (mail) (www):

But is the same true of males? I recall that at 16, I or any of my immediate male cohort, would have lept at the opportunity for a sexual dalliance with a 30 year old woman. We certainly weren't all the product of abusive homes or other emotional trauma, nor "abnormal" in any way I know of.
News flash: boys and girls are, on average, different. (And boy, do I remember being 16!) I know a number of guys who look back on such "dalliances" with some upset today. They realize now that they were being used. I doubt that this usually produces the same level damage as girls in the same situation--boys and girls are on average psychologically different in many respects, and some of this is biological. The risks of STDs (always higher risk as the number of sexual partners rises, which is usually coincident with rising age) are still there, and some of those STDs are your "little pets" for life.
4.25.2008 3:56pm
Richard Aubrey (mail):
My daughter is approaching the age of thirty-one. I got to know a number of her female friends through the years.
IMO, the connection between the mechanical ability to accept sex and the mental and emotional ability to make an informed choice are not in any way connected. Thus, the discussion of menarche or any other physical issue is irrelevant.

If every twelve year old girl were required to carry $2000 in cash and wear a sign advertising it, her ability to carry the cash does not make an adult trying to talk her out of it--for no recompense--justified. As those referring to contract law point out, it's even tricky selling her something for that amount.

My primary concern is that pointing out that other societies do it differently is invariably accompanied with the implied, or explicit message that these other folks are right and pointing out what they do means inevitably that we're wrong. No actual discussion of the matter is necessary. If the Europeans do it differently, we must be wrong. Q.E.D. If the ridgerunners of New Guinea do it differently, we're wrong. If Margaret Mead's informants have a particularly involved practical joke going, we're doing it wrong.

Now, I know that's not what people claim they mean when called on it. But it's what they mean until they're called on it.
4.25.2008 3:58pm
Ken Arromdee:
Saying "lots of people think it should be legal--if they didn't, the law wouldn't allow it" is only true in a very narrow, dare I say legalistic, sense which doesn't correspond to how people normally talk. "Should" in this context carries a connotation of "should ideally", not "should as part of a tradeoff" or "should, because the other options are worse".

Most people who accept the current laws don't do so because they think that sex between a 30 year old and a 16 year old should, in the first sense, be legal. They think that making it illegal and keeping everything else the same would be preferable, but they also understand that making perfect laws is hard.

Intentionally misinterpreting idiomatic language to continue an argument is sophistry, or even trolling. And all too often I've seen the excuse "I was just trying to make you think" used to justify trolling. If you want to make someone think by arguing for a position you don't really believe in, you should be even more careful to avoid simple fallacies like misinterpreting idioms; you might want people to think about age of consent laws, but you have little reason to want them to think about idiomatic use of language.
4.25.2008 4:00pm
Joe Bingham (mail):
So they're always arguing in bad faith?
4.25.2008 4:02pm
Joe Bingham (mail):
Sorry, my comment was Re: Richard's statement that "Now, I know that's not what people claim they mean when called on it. But it's what they mean until they're called on it."
4.25.2008 4:03pm
Nathan_M (mail):
I agree the question you're asking isn't necessarily creepy, but I think the way you have analyzed it is. (And the attitude of many of the people who have commented, e.g. the person who didn't see any issues with a 40 year-old marrying a 15 year-old, are extremely creepy.)

The reason I find your analysis creepy is because of this paragraph:


Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever "sexually exploitive" might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they're entirely unable to lie and manipulate -- and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.


You don't seem to have any appreciation for what relationships between 16 year-olds and 30 year-olds would tend to be like. You say 16 year-olds "might be less good at the lying and manipulating," but then ignore that point entirely. Yeah, they might be less good, in the sense I might be less good at freestyle than Michael Phelps.

You also ignore the adverse selection problem. Even if many 30 year-olds are sexually attracted to high schoolers, almost none would want a relationship with one. A normal person doesn't want to put up with the immaturity of a 16 year-old girl. One of the main reasons a 30 year-old would want a relationship with a 16 year-old is precisely to take advantage of that immaturity to have the type of relationship a woman who knew what she was doing would run away from.

You seem to think the issue is a binary answer to whether someone is mature enough to decide to have sex. There isn't. Someone can be mature enough to decide to have sex with someone her own age, where both of them are still learning about relationships, without being mature enough to handle a manipulative man twice her age.
4.25.2008 4:05pm
Clayton E. Cramer (mail) (www):

Most people who accept the current laws don't do so because they think that sex between a 30 year old and a 16 year old should, in the first sense, be legal.
Agreed. Most people agree that lying is a bad thing, but recognize that criminalizing all forms of lying would require dramatic expansions of law school capacity to create enough lawyers and judges to handle all the trials--and eventually, the punishment for lying legal system would absorb 30% of the GNP. So we criminalize certain categories of lying: perjury; fraud; certain categories of libel and slander.
4.25.2008 4:06pm
TheGut (mail):

Concerning the inability to appreciate long-term risks: I'm not sure that this is as much social as you might think. I've read enough accounts from Colonial America to know that most of the stupid things that teenaged boys were doing when I was young (and I'm fortunate to have all my fingers and toes) they were doing in 1810, and 1650. These were generally inability to appreciate long-term risks.

Some of that ability to appreciate long-term risks is a matter of learning, no question. But I remember seeing a graph of accidental death rates for males by age across multiple cultures and centuries--and the shape of the curve (although not the death rate) was remarkably similar. Testosterone poisoning causes a lot of stupid actions by teenaged boys. There was a reason that one of the early Indiana codes prohibiting racing horses in town--and for the same reason we have "exhibition of speed" rules for cars today.


And human cultures throughout time have exploited the hell out of this. Why do you think Armed Forces like 18-22 year olds for the grunts? Old enough to be physically powerful, young enough to suffer "testosterone poisoning". Bravery is pretty rare - its the ability to do what needs to be done despite your fear. Its much easier to get young men who just want to prove themselves, and don't have the fear to begin with. I'm not explaining this very well.
4.25.2008 4:06pm
Jen:

But is the same true of males? I recall that at 16, I or any of my immediate male cohort, would have lept at the opportunity for a sexual dalliance with a 30 year old woman. We certainly weren't all the product of abusive homes or other emotional trauma, nor "abnormal" in any way I know of.


I don't think the same is true of males. I know many males who would agree with your statement, including my husband. However, I don't know many well-adjusted 16 year old girls (I've been one and also worked with them later as an adult) that would jump at the chance to sleep with a 30 year old man.

I'm not PC or prudish, and I don't particularly care if my experiences are somehow really off base and there really are tons of 16 year old girls who really do want to sleep with 30 year old men. I've just never met them.
4.25.2008 4:08pm
some dude:
4.25.2008 4:14pm
CDU (mail) (www):
This discussion reminds me of Paul Graham's excellent essay What You Can't Say.

A good scientist, in other words, does not merely ignore conventional wisdom, but makes a special effort to break it. Scientists go looking for trouble. This should be the m.o. of any scholar, but scientists seem much more willing to look under rocks.
4.25.2008 4:16pm
Sasha Volokh (mail) (www):
Like a couple of previous commenters, I also wonder what some Canadians (or some potential travelers to Canada) are doing with this last week of April. Ditto for existing about-to-be-illegal Canadian couples.
4.25.2008 4:22pm
George Weiss (mail) (www):

A good scientist, in other words, does not merely ignore conventional wisdom, but makes a special effort to break it. Scientists go looking for trouble. This should be the m.o. of any scholar, but scientists seem much more willing to look under rocks.


i actually find this applies to modern economists more than anything else...ever since the hit freakonomics they seem to love to advocate for any counterintuitive notion for which there is some economic evidence, even if there are much stronger conventional explanations. But as far as im concerned, whether a notion is counterintuitive or not should not make it any more attractive to a scientist-finding th facts should-regardless of whether those facts are counterintuitive or not.
4.25.2008 4:22pm
George Weiss (mail) (www):
sasha-i assume that if these soon to be to young couples are already married that would be a defense-as it is usually to statutory rape when the couple has been legally married (even if the marriage took place when they would have been prohibited)? this is canada so its hard to know
4.25.2008 4:27pm
dearieme:
Might some history help?
http://en.wikipedia.org/wiki/Juana_Mar
%C3%ADa_de_los_Dolores_de_Le%C3%B3n_Smith
4.25.2008 4:29pm
Sasha Volokh (mail) (www):
George Weiss: I'm not concerned with young married couples so much as an unmarried couple already in a sexual relationship that's about to become illegal, or an unmarried couple planning to have sex soon, at a time when it would be legal now but is about to become illegal.
4.25.2008 4:32pm
Clayton E. Cramer (mail) (www):

And human cultures throughout time have exploited the hell out of this. Why do you think Armed Forces like 18-22 year olds for the grunts? Old enough to be physically powerful, young enough to suffer "testosterone poisoning". Bravery is pretty rare - its the ability to do what needs to be done despite your fear. Its much easier to get young men who just want to prove themselves, and don't have the fear to begin with. I'm not explaining this very well.
It's not an original theory. The problem is that throughout much of recent history, soldiers have included a large number of men who were considerably older. The average age of World War II soldiers was quite a bit higher than Vietnam era soldiers. If you look at National Guard units currently serving in Iraq, we've got a lot of old men, by this standard, who are serving.

At the start of the Revolution, our soldiers included a pretty normal distribution of 18-50 year olds--essentially, everyone eligible for militia duty. Within a year or so, the average age of those serving in either the Continental Army or the various state armies had dropped a lot. Some of it was the rigors of camp life were a lot harder on men in their 30s and 40s (and probably equivalent to 40s and 50s today, because of the state of health), and many of these middle aged men had significant economic responsibilities and power that the young ones didn't have. The struggles between radical and moderate factions in Pennsylvania over military obligations reflected this both age and class related division. (My book Armed America examines this a little bit.)

If maximzing testerone poisoning were the dominant force on this, we would be drafting 14 year olds--who are completely immortal, in their own minds. Think of the Somali militias involved in the 1993 battles.
4.25.2008 4:34pm
Richard Aubrey (mail):
Joe B. You're asking about bad faith? On a lawyers' blog? In any legal case, a minimum of one side is arguing in bad faith. It's why they get the big bucks.

To restrict what I said to what I said:
Yes.
It is possible to start a discussion by pointing out that other cultures do whatever it is differently and thus doing it our way is not cosmically inevitable and inescapable. It is possible to do that without the implicit or explicit message that it means we're wrong. That the sophisticated (Europeans) or the innocent (ridgerunners) do it better than we do.
If I live long enough, I may encounter such an argument.
4.25.2008 4:34pm
Suzy (mail):

sex between older men and 16-year-old women, which throughout much of human history was (to my knowledge) viewed as entirely normal, for understandable evolutionary reasons to boot


What were those reasons, exactly? I think if you try to be more precise--closer to knowledge vs. opinion, as it were--you'll find that these statements don't hold up, or at least have to be modified. In a past where marriages were arranged in large part for the transfer of wealth, women had much less say therein, and nothing like our concept of sexual abuse was even present (except perhaps the idea of rape being a crime against the property of the men responsible for the woman in question), it is not surprising that adolescents girls were married to adult men. How should this sense of "normal" be brought to bear on our society today?

You also suggest reproductive advantages. How so? What is the proof? Would it not be rather effective to have younger men, at their sexual peak, impregnating older women who had already given birth (and thus were less likely to die during later births)? If you're thinking about the biology of what we find sexually attractive, 16 year old females (and 30 year old males) have no lock on an ideal. Other factors are more powerful and reproductively advantageous, like mathematical proportions of the body or face, and males having one-time sex with a woman who is having regular sex with some other male. Just some food for thought about why some things strike us as "normal" or "understandable".
4.25.2008 4:36pm
A. Zarkov (mail):
Clayton E. Cramer:

"But that, plus your comparison of a woman to livestock, tells me a lot about your view of the purpose for setting an age of consent law--and even lower."

Clayton it's an old joke, you need to loosen up a little. But there is a good reason that sexual attractiveness should peak in youth. Health and reproduction. The features that men find attractive such as symmetry, wide hips and narrow waists are signs of health and fertility. Let's not forget the primal driver for sex. Moreover these notions of attractiveness are nearly universal.
4.25.2008 4:36pm
DJR:
A Zarkov:

A woman reaches her peak of sexual attractiveness at about 18.

This is demonstrably false. To prove it, I ask you: Weren't the women way hotter at your 10 year high school reunion than they were in high school? Anyone who says no is a liar.

As one who recently went to his 20th high school reunion, I can say that the same comparison does not hold true for the second ten years (although my wife keeps getting hotter and hotter--go figure).
4.25.2008 4:36pm
pete (mail) (www):

One issue underlying much of this discussion is that the age of physical maturity (i.e. menarche or the male equivalent) and the age of social maturity (i.e. when one is ready to take on full adult responsibilities) have been moving in opposite directions for a century or so. My son's peer group (college seniors) seems less mature than many high school seniors I knew in the 1950's.


If we were having this discussion 200 years ago I would be fine with having girls 13+ treated like adults when it came to sex and marriage because for the most part they were treated like adults overall. The same is true with boys in pretty much every society I can think of, which is why tradiaitonal rites of entering manhood are around 15 or so (bar-mitvah at 13, putting on the manly toga in Rome at 15 if I remember correctly). That is because they were probably spending all of their time working in an agragrian economy and would be lucky to live to the age of 40. Maturity was forced on them by their environment.

That is not true today because our post-industrial society of abundance allows many people to put off acting like adults to their mid 20's and for many males even later. I know I never had a real job until I was 18 and never had a full time job until I was 19 during summer vacation from college. I had friends in college who never had a real job until they were 22 and it is not uncommon for people to stay in college until 23 or 24 without ever having to take on the normal responsibilities of being an adult in earlier societies that would start at 14 or even earlier like working all the time, fighting in wars, raising a family, etc. In short if our teenagers spent all their time working and trying to keep their families from starving I would be much more comfortable with them marrying young than if they spend all their time playing video games, going to school, and shopping.
4.25.2008 4:36pm
john w (mail):
EV wrote: "... Yet when nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there's an important discussion to be had here, and that the answer is at least not open and shut. "

And in many places, until *very* recently, it was 12 for girls.

I still haven't seen anybody on any of these threads address the more basic question, that goes beyond sex and covers life generally:

How is it possible that, for tens of thousands of years, human societies have almost universally taken the position that children become adults somewhere around 12 to 14 years of age; but all of a sudden we have decided that modern Americans can't mature until they are 18 or even 21?

Are we experiencing a burst of reverse evolution or something?

And how or why does society benefit from taking this large cohort of, say, 14 to 18 year olds, the vast majority of whom could be contributing, functioning adults, and forcing them into Peter Pan-ism?
4.25.2008 4:36pm
Nathan_M (mail):

sasha-i assume that if these soon to be to young couples are already married that would be a defense-as it is usually to statutory rape when the couple has been legally married (even if the marriage took place when they would have been prohibited)? this is canada so its hard to know

Marriage isn't a defence to this charge in Canada.

Also, marriage is under provincial jurisdiction and criminal law is federal, so the changes to the Criminal Code will not change who can be married in Canada. (I have no idea whether any provinces allow people under 16 to wed, but if they do the change to the Criminal Code won't effect that.)
4.25.2008 4:40pm
Suzy (mail):
Zarkov, by those criteria, 16 isn't the best age for girls; you've also left out many other criteria that would be quite relevant on the grounds of health and reproduction. If older men and 18 year old girl is your personal preference, that's fine, but we'd need more evidence to suppose that biology makes your preference universal.

What do older women find attractive when it comes to reproduction, I wonder? Why isn't that the question, or equally the question? I don't mean to suggest that older women cannot be predatory, by the way; just that the whole humorous notion of reversing the tables reveals some important things being left out of this discussion.
4.25.2008 4:46pm
Seamus (mail):
I completely agree with this post, but 16yo girls having sex with 30yo men is still creepy.

So I'm guessing you regard the marriage of Will and Ariel Durant (aged 28 and 15, respectively, at the time of their wedding) as "creepy."
4.25.2008 4:47pm
Suzy (mail):

Are we experiencing a burst of reverse evolution or something?


No, we've simply decided that we are more than our animal evolution.
4.25.2008 4:48pm
PatHMV (mail) (www):
I am reminded of the old story about the young couple parked at "Lover's Lane." The police officer walks over, shines his light in the car, and sees a young man in the front seat, reading a Sport Illustrated. In the back seat is a young woman, knitting. They roll down the window as the officer asks the young man: "Son, how old are you?" the young man answers: "I'm 22, sir." Then the officers asks: "And son, how old is the young lady in the back seat there?" The young man looks at his watch and tell the officer: "In 10 minutes, she'll be 18, officer!"
4.25.2008 4:49pm
Anderson (mail):
Doesn't follow. That depends a great deal on why we are prohibiting sex between 16 year olds and 30 year olds.

Yes, but those reasons are dumb.

Remember, we are talking about putting people in prison for having sex with 16YO's.

You don't seem to have any appreciation for what relationships between 16 year-olds and 30 year-olds would tend to be like.

And you do? Tell us your stories!

... They probably tend to be frisky, fleeting, and fragile.

Just like most relationships between 16YO's.
4.25.2008 4:54pm
ejo:
Maybe some people get creeped out because being able to "ask questions" doesn't sound to them like an issue of that great value on many topics or subjects. It works for law professors as they get a niche topic and can work it to death while proclaiming themselves the foremost authority on issues dealing with age of consent, much like a professor could advance a theory that sexual relations between adult males and 8 year old boys is not harmful to prove how "out there" that professor is. going from the theoretical to the practical, the research/argument would then get used to try to advance the argument that we should be able to have such relations, probably something not even those advancing more European mores above would advocate. hence, the word "creepy".
4.25.2008 5:06pm
lurker-999 (mail):

I completely agree with this post, but 16yo girls having sex with 30yo men is still creepy.

So I'm guessing you regard the marriage of Will and Ariel Durant (aged 28 and 15, respectively, at the time of their wedding) as "creepy."



And then there was President James Monroe who was 27 when he married his 17 year old bride. ... Or is 27 &17 magically less 'creepy' than 30 and 16?

And somebody already mentioned Humphrey Bogart and Lauren Bacall.
4.25.2008 5:08pm
Clayton E. Cramer (mail) (www):

How is it possible that, for tens of thousands of years, human societies have almost universally taken the position that children become adults somewhere around 12 to 14 years of age; but all of a sudden we have decided that modern Americans can't mature until they are 18 or even 21?
I'm not sure that is is "all of a sudden." From what I've read, average age for marriage in Puritan New England was typically 17-18 for women, about 21 for guys.

When I was just old enough to be reading summaries of California law in the late 1960s, you had to be 18 to get married without parental consent, 16 with parental consent, and 14 with parental consent and a judge's permission. (I'm guessing that this last case involved someone having gotten pregnant.) I'm not sure what the age of consent was at that point, but I'm guessing it wasn't 12 or 14.

Some parts of America did have lower ages of consent, especially in the South, but the idea that 13 year olds used to regularly get married doesn't seem correct. Remember that as late as the 1920s, average menarche age was about 16. (I remember reading a Scientific American article many years ago that traced the declining age of menarche from Los Angeles school district records.) Lots of men were still beardless at 18, just a few centuries ago, suggesting that puberty was arriving much later than today. Even if the law allowed it, it isn't clear to me that it was all that common.
4.25.2008 5:10pm
john w (mail):
Even if the law allowed it, it isn't clear to me that it was all that common.

Well, OK Clayton, you're the expert on colonial history. But it's possible that we are both correct i.e. it may have been not common, but also not rare. So, at what point in history did May-December marriages start to become regarded as 'creepy' and felonious?

And I still don't see how one can divorce [no pun intended] the question of early marriage from the broader question of the infantilization of society in general and the modern tendency to regard immaturity as a virtue.
4.25.2008 5:31pm
Glenn W. Bowen (mail):

If a 16YO girl shouldn't be having sex with a 30YO, then she shouldn't be having sex at all.


then my mother and her brother* would never have been born- my grandfather married my grandmother when she was 16 and he 41- raised a family, worked a farm, attended church, weathered bad times and enjoyed the good.

*one a college graduate, the other died a millionaire; both married once, for life.

...just my backwoods .02
4.25.2008 5:36pm
Clayton E. Cramer (mail) (www):

Well, OK Clayton, you're the expert on colonial history. But it's possible that we are both correct i.e. it may have been not common, but also not rare. So, at what point in history did May-December marriages start to become regarded as 'creepy' and felonious?
I'm not claiming expertise about marriage customs in that period. I have seen this claim in the course of my grad school education, but I've never gone and checked the data myself. I have seen little that would make me believe that it was incorrect.

Also, it isn't "May-December" marriages (which merely tells us that there is a large age difference), but the February-September marriages that freak people out. A 45 year old marrying a 20 year old? A little unusual; some people find it concerning, but not a basis for law. The 20 year old is an adult. It is when one of the sexual partners is an minor that questions start to come up--and this gets more severe the younger that minor gets.

Even marriage doesn't produce the same upset. If you are prepared to get married, it suggests that your motivations are pretty long-term. It might still be pretty sick (for example, the recent divorce granted to an eight year old from a 26 year old in Yemen--and yes, he had sex with her), but this isn't the same exploitation that sees a 15 year old as a tight hole to use until she or he gets too loose.

And I still don't see how one can divorce [no pun intended] the question of early marriage from the broader question of the infantilization of society in general and the modern tendency to regard immaturity as a virtue.
It isn't a matter of seeing immaturity as a virtue. It is seeing that maturing too quickly isn't always a virtue.
4.25.2008 5:42pm
Paul Karl Lukacs (mail) (www):
Many people hold opinions about sexuality and believe that the opinions demonstrate that they are "good" and "moral" people.

When a law professor or other speaker questions the basis of the opinions, these people lash out, because the speaker is actually challenging their image of themselves.

I think that explains a lot of the anger to Prof. Volokh's original post.
4.25.2008 5:49pm
Aultimer:

Richard Aubrey (
Joe B. You're asking about bad faith? On a lawyers' blog? In any legal case, a minimum of one side is arguing in bad faith. It's why they get the big bucks.

I do not think [bad faith] means what you think it means. And it's a big shocking on a lawyers' blog.
4.25.2008 5:56pm
HipposGoBerserk (mail):
Re maturity of teens:

1) prior cultures, with life expectancies around 40, didn't have a choice regarding when to acknowledge a youth as an adult.

but, more importantly,

2) There has been a lot of research lately that demonstrates that the brain goes through extensive changes and development at the end of, and just after, puberty. In other words, there are a lot of mental capabilities that adults have that teenagers lack.


Our trend towards granting legal emancipation at later ages comports with both our changing economy AND our increased understanding of the brain.

HGB
4.25.2008 5:57pm
A. Zarkov (mail):
Suzy:

"What do older women find attractive when it comes to reproduction, I wonder?"

I don't know what you mean by "older," but I'll assume you mean still at a reproductive age. In that case I don't see why it would differ from what young women prefer. The evolutionary psychologist David Buss did a survey of 10,000 individuals in 37 cultures and found that women placed more value than men on a partner's future financial prospects. Women in almost all cultures prefer men who have high status, are slightly older and taller.
4.25.2008 6:00pm
ejo:
Why does one have to accept as an article of faith that professors are just asking questions, PKL? Isn't it just as likely that they are creating arguments to advance possible future policy positions? An assumption that professors are on some pedestal of objectivity is much more naive a thought than an assumption that they are attempting to push an agenda. I don't believe NAMBLA is just asking questions when they advocate sex with children.
4.25.2008 6:04pm
Ken Arromdee:
Should a brother and sister be allowed to marry? Virtually all societies would say no. Why not? If the answer we give today is "no" because of the the adverse genetic consequences of inbreeding, does the answer change if one or both of them are infertile?

The reason we prohibit incest is not mainly inbreeding. We prohibit it because family members are expected to have social and emotional connections with other family members. Sex (or even the possibility of being pressured into sex) interferes with those connections.
4.25.2008 6:10pm
john w (mail):
Clayton wrote:" ...The 20 year old is an adult..."

You, know, that's a large part of what scares me. In fact, in the modern Nanny State, the 20 y.o. is NOT fully an adult. She can't buy a handgun, for example, and she can't even buy a Beer. So, I don't see any fundamental reason, why Big Brother couldn't turn around -- a year from now or a decade from now -- and suddenly decree that she can't marry or have sex with a man older than herself, if that became politically expedient.

I'm not kidding. I actually saw a News article a while back where some idiotic state legislator (don't remember where) was proposing that women under 25 weren't mature enough to consent to appear in porn videos, and a law was needed, etc. Not that I'm a big fan of porn videos, but where is the Nanny State going to end??? If they can arbitrarily define a 16 y.o. as a 'child,' what's to stop them from extending it to 20 y.o.?

To my way of thinking, an out-of-control big government is a much greater long-term threat to everybody than a handful of dirty old men.

P.S. This will be my last post for a while; I have to drive somewhere, but it was nice debating with y'all.
4.25.2008 6:14pm
Ken Arromdee:
That is not true today because our post-industrial society of abundance allows many people to put off acting like adults to their mid 20's and for many males even later.

I have another theory (which doesn't necessarily contradict this one): Our post-industrial society sets a higher bar for what exploitation of the young--indeed, what exploitation of anyone--is allowed.

It isn't going to matter that it's much easier to pressure a 13 year old into sex, if the society's full of arranged marriages and it's considered acceptable to outright force someone into a marriage whether they're 13 or not. And why should it matter whether minors can consent when a husband can do almost anything to his wife without her consent anyway regardless of her age?
4.25.2008 6:21pm
Clayton E. Cramer (mail) (www):

Clayton wrote:" ...The 20 year old is an adult..."

You, know, that's a large part of what scares me. In fact, in the modern Nanny State, the 20 y.o. is NOT fully an adult. She can't buy a handgun, for example, and she can't even buy a Beer. So, I don't see any fundamental reason, why Big Brother couldn't turn around -- a year from now or a decade from now -- and suddenly decree that she can't marry or have sex with a man older than herself, if that became politically expedient.
No fundamental reason. It just wouldn't go over well with the voters. We are at the mercy of democracy on many matters, not just this.


I'm not kidding. I actually saw a News article a while back where some idiotic state legislator (don't remember where) was proposing that women under 25 weren't mature enough to consent to appear in porn videos, and a law was needed, etc. Not that I'm a big fan of porn videos, but where is the Nanny State going to end??? If they can arbitrarily define a 16 y.o. as a 'child,' what's to stop them from extending it to 20 y.o.?
Someone was hiding the real objective: to stop women who look like they could be underage from making porn videos that are marketed with a wink, wink implication that these might be underage. There is federal law that prohibits this and imposes recordkeeping requirements, but I guess that it isn't a surprise to know that there are guys who find "young stuff" exciting.

There's nothing terribly shocking about this. You can't immediate tell a naked 16 year old from a naked 18 year old. But there are some standards of civilized behavior that our laws impose, even if she is sexually attractive, "Hands off. She's too young."


To my way of thinking, an out-of-control big government is a much greater long-term threat to everybody than a handful of dirty old men.
If it remained a handful of dirty old men, there would be little reason to worry about an out-of-control big government. But when former ACLU officials plead no contest to buying child rape videos, TV producers get arrested trying to barter football tickets for sex with an 11 year old girl, and molesting a 9 year old gets you a month or two in jail--while the ACLU sets up the intellectual justification for wiping out age of consent--this isn't a handful anymore.
4.25.2008 6:26pm
HenryH:
This idea that certain topics are off limits for discussion is one I've been thinking about recently. I'm inclinde (actually, I'm convinced) that you (Eugene) are right in your defense of the idea that we should understand why rather than just know what. Another topic that gets a similar sort of reaction to this is the idea of polygamy. Why is it illegal in the west but not in parts of the middle east? Should it be? It's the sort of question you cannot bring up without being accused of wanting (either secretly or openly) a second wife (or husband, I assume). Be especially careful bringing it up with your spouse. ;)
4.25.2008 6:44pm
Clayton E. Cramer (mail) (www):

Another topic that gets a similar sort of reaction to this is the idea of polygamy. Why is it illegal in the west but not in parts of the middle east? Should it be? It's the sort of question you cannot bring up without being accused of wanting (either secretly or openly) a second wife (or husband, I assume). Be especially careful bringing it up with your spouse. ;)
One difference: in our current Western social structure, few women could be pressured or forced into a polygamous marriage (except for members of a few marginalized cults). There are too many alternatives. On the other hand, manipulating minors into sex with much older adults, while illegal, happens with depressing frequency. The polygamy question is an interesting philosophical question. This question, because there are people defending child molestation by adults ("I was 12, but it was consensual!"), is a lot more sensitive.
4.25.2008 6:54pm
Kingsley Browne (mail):

EV: "Kingsley:

Finally, as to evolutionary reasons for finding something to be icky, those may often be important and worth considering. But my guess is that they don't tell us much about sex between older men and 16-year-old women, which throughout much of human history was (to my knowledge) viewed as entirely normal, for understandable evolutionary reasons to boot."


I suppose we can quibble about whether 16-year-olds are "women" or "girls," (I myself am inclined to the latter, having had daughters who passed through that age.) But I don't think it has been considered "entirely normal" for a older men and young females to be just "having sex." I believe that in most cultures where this kind of thing occurs, it is arranged through the parents and marriage is the outcome, rather than a few minutes of gratification in the back of a Chevy.
4.25.2008 7:26pm
Clayton E. Cramer (mail) (www):

But I don't think it has been considered "entirely normal" for a older men and young females to be just "having sex." I believe that in most cultures where this kind of thing occurs, it is arranged through the parents and marriage is the outcome, rather than a few minutes of gratification in the back of a Chevy.
And this is a very important difference. A traditional culture's arranged marriage isn't going to win any awards for its protection of women, but at least there are some expectations that she will be provided for--and not just discarded when she gets to be 25 (which is pretty worn out looking for many Third World women).

Some years back, California Governor Wilson directed the state government to start working the problem when a study found that the state's huge teen mother problem was largely not 14 year old girls with 16 year old boys; much of it was guys in their late 20s, in their 30s, and even older. Also, many of these girls weren't even so much seduced as coerced or intimidated. It wasn't quite forcible rape, but many of them weren't just lovestruck kids.

I remember getting into a debate with one creep who insisted that Wilson was just showing a lack of respect for the traditional Hispanic culture, where girls get married very young. Except that in Mexico, girls get married--this isn't older men having a few rolls in the hay before running off to knock up some other little girl.
4.25.2008 7:34pm
angus (mail):
Oh fun! Wikipedia has a color-coded age of consent 4.25.2008 10:26pm
angus (mail):
Whoops, by which I meant to link here

Another bizarre fact (again courtesy of Wikipedia), in Antarctica whether one commits statutory rape depends on one's country of origin. Which is to say, if you're a twenty-something Madagascarian polar explorer on an expedition otherwise populated by 15 year old Swedes, try sleeping out with the sled dogs; if worst comes to worst at least their testimony is inadmissible.
4.25.2008 10:28pm
MarkField (mail):

try sleeping out with the sled dogs; if worst comes to worst at least their testimony is inadmissible.


Inadmissible in Sweden or in Madagascar? Cites please.
4.25.2008 11:00pm
Fub:
MarkField wrote at 4.25.2008 10:00pm:
Inadmissible in Sweden or in Madagascar? Cites please.
Just hope they don't make their court appearance by VPN. On the internet nobody knows...
4.26.2008 1:28am
anym_avey (mail):
Like a couple of previous commenters, I also wonder what some Canadians (or some potential travelers to Canada) are doing with this last week of April. Ditto for existing about-to-be-illegal Canadian couples.

Can't speak for the Canadian nationals, but I can assure you that the would-be travelers are doing nothing: the State Department won't have their passport applications processed for another 10-14 weeks.
4.26.2008 2:04am
K Parker (mail):
Dilan,
based on nothing more than the traditions we have
Do you mean that as dismissively as it sounds?

EV,
WF, Tennesseean: Interesting points, but is it really that "abnormal" (in the pejorative sense or in the descriptive sense) for 30-year-old men to be interested in 16-year-old girls?
In general, yes--why isn't the 30-yo already in some kind of relationship with someone much closer to his own age? (But maybe I'm not adding anything of substance to Jen's "EEEWWWW" , or Nathan_M's comment...)
4.26.2008 5:36am
LM (mail):
EV,

Thanks for a wonderful articulation of the academic credo.
4.26.2008 7:17am
Gaius Marius:
My personal observation to my sister, after picking up my nephew at his elementary school, was that many of the older girls I saw there were more physically matured than the high school girls I remember from my youth.

There are medical studies documenting the above observation. For some reason, girls today are menstruating at an earlier age than decades ago. One possible explanation is diet.
4.26.2008 10:44am
Joe Bingham (mail):
Mr. Aubrey,

Aultimer's right, it sounds like you're confused about what bad faith means. Maybe just much to eager to attribute it. There are plenty of legal cases where advocates on both sides believe they're making legitimate arguments.

Your response just made your position less clear to me than your original post. You're saying that you didn't mean what you originally said--that people who cite foreign cultures/laws are universally making an implicit bad-faith argument--but that in every similar case you've encountered, you believe the people were arguing in bad faith?
4.26.2008 2:01pm
Richard Aubrey (mail):
Joe.
Lawyers are supposed to be smart. They don't go looking for cases to take the right side of. They take the cases that come in the door. Chances are excellent that the justice of the thing is clear. The attorney's job is to make sure his client escapes, as far as possible, the consequences of having committed an injustice. You don't do that by asking for pity. You do it by screwing the pooch wrt facts, logic and hauling in Heaven's Gate if any on the jury seem a bit stary-eyed. Or the attorney is employed to make injustice profitable.
Yes, the argument is made in good faith. The attorney believes in good faith that cite X can be twisted to fit that case on hand so his client avoids justice.

My point about looking at other cultures is this: It is never, in my experience, done solely and innocently to spark a discussion of why we do things the way we do them. It never fails that the implication, or the explicit argument, is that, because other cultures do things differently, we must, by definition, be doing them wrong.
Implicit in this argument, of course, is the planted axiom that all other cultures are superior and so anything they do is superior to the way we address the issue.
However, when called on it, the excuse is always that the intent was to spark a discussion of why, a disinterested discussion.
But if not called, the argument always gets to how we're wrong, as exemplified by the sophisticated (Europe) or the close-to-nature innocents (ridgerunners). And we must change in order to be better (like those other guys). It's possible that I may encounter an argument where this is not happening, but according to the actuarial tables, it had better get its boots on.

BTW. Are there any women on this thread proposing making their younger sisters more available to old men?

Decades ago, I sat in a child psych class next to an attractive young woman. The sexual revolution was just getting going, or perhaps it could be said to be leaching out from the "beat" crowd to the rest of society. The prof, an older man who had been in practice before his professorship, devoted an entire lecture to the unfortunate consequences to young women of having sex outside marriage, to include the age group sitting in front of him. I don't recall the arguments--the young woman next to me commented afterwards "We need to hear more like this," which distracted me. But I do recall thinking the guy was making an excellent case as a matter of fact, logic and compassion.
4.26.2008 5:30pm
Eugene Volokh (www):
Richard Aubrey: As it happens, my sense is that 13 (Spain) is shockingly young as a general age of consent, and that 14 is mighty young, too. I'm inclined to think that the majority American view of 16, which also seems to be a common view in Europe, is probably about right.

That, though, is just my gut talking, and I'd like to hear some sensible discussion of what the rule ought to be. If all the countries in my general culture had a common view on the subject, I would give some weight to this consensus on Burkean grounds (though not dispositive weight). But recognizing the vast range of positions among Western jurisdictions -- and, until recently, among American jurisdictions -- should, I hope, help show that there's a serious question to be asked here, that the answer probably isn't obvious, and that a sensible discussion is indeed called for.

On the other hand, assuming that people who raise such questions already have their minds made up, or that people who argue for a lower age of consent must have personal selfish reasons to do so, is going to block such a sensible discussion, not advance it.
4.26.2008 7:12pm
Richard Aubrey (mail):
EV. I would be interested in seeing if there is a correlation between the general treatment of women and the legal age of consent. Spain, you will recall, had more than half a millenium of Islamic culture. Indeed, it is said that Africa stops at the Pyrenees.
My wife teaches Spanish and we occasionally watch the Spanish language channel at home. And we have good friends in Mexico.
If you listen carefully, you can hear a tone from Hispanic women which you will not hear in America. It's a wheedling, obsequious inflection. Means something? Don't know.
As an example, our male and female friends from Mexico inflect "no" as an answer to whether they would like something as if it (the question) was kind of silly. They don't mean it that way. But both sexes do it. Only women use the wheedling tone, the subordinate tone, I mentioned. So it's sex-specific.

Minds made up.... Ever hear anybody promote "Coming of Age in Samoa" without trying to make the point that it's a more reasonable, healthier way to address such things?

I know of people who promoted the sexual revolution although far too old to enlist. Was it a personal selfish reason? You don't need to want clearance to sniff around the junior high to have an agenda in this, if only a kind of creepy wish to live vicariously.
4.27.2008 12:26am
Suzy (mail):
I wouldn't assume anyone arguing for a lower age of consent has a personal interest in the cause. The person who suggested that is being unreasonably closed-minded about academic inquiry. However, EV, your choices about how to make this argument are a little suspect, and it's fair to question that.

You've apparently assumed that evolutionary biology explains 30 year old men + 16 year old women as a natural pairing, without giving any evidence. You also haven't explained how that biological evidence should be related to legislation. As several commentators here have pointed out, the average age of menstruation in the U.S. is falling. Should that guide our thinking about age of consent, as if consent is a function of what is biologically possible? Same issue with marriage: why should average ages of marriage in the past imply anything about consent? Don't we have different legal ideas today about consent to sex than we did in the U.S. a few decades ago? In the absence of any historical analysis of why ages of consent or marriage were what they were, one can reasonably wonder why you're making these arguments. Referring to biology and historical practices as a way of questioning our current ages of consent--as opposed to say, giving even more evidence for them!--is not a neutral presentation, so you can't expect it to be received as one.
4.27.2008 12:50pm
A.C.:
If people want to do cross-cultural comparisons here, there's a model missing from the discussion. In the west nowadays, we assume that couples should be roughly the same age at marriage and that both should be ready for adult responsibilities. They should live apart from their parents, have jobs, and so on.

In the west in the past, at least in the upper classes, it was normal for the man to be somewhat older than the woman. HE would have to be ready to support a family, which might mean late 20s or early 30s. SHE was under no such obligation, so she could be in her teens or early 20s. But this was about marriage, not casual sex, and a younger girl's parents would have had something to say about the match. We would find this creepy nowadays if the age difference were too big, but it makes sense if the goal is large families. Which it is not, for most of us.

But in many other world cultures, it has been normal for couples to marry when BOTH are in their teens. They then move in with one set of parents or the other, and they can continue their educations and so forth without any obligation to take on full adult responsibilities right away. It's a way to guard against premarital sex and illegitimacy, and I don't know why it wouldn't work if everyone involved understood their respective responsibilities.

I read once about a school in Dearborn, Michigan, where many of the female students were pregnant at the prom. This wasn't considered social pathology, though. They were Arab, and they were married while in school and starting families in the usual ways.
4.28.2008 3:17pm