Some responses to my post about age of consent and Romeo-and-Juliet laws have said something like this:
The question is not whether the behavior is harmful and wrong (in both cases, the answer is equally yes). Instead, it is whether someone is responsible. 16 year olds are not mature enough to decide to have sex; 30 year olds are. Thus a 30 year old can be punished for having sex with a minor, but a 16 year old can't. I don't really see the problem here.
This is an interesting theory, but I'm skeptical about it.
First, we generally think that 16-year-olds are supposed to comply with the law, are capable of doing so, and should be held responsible for failing to do so, especially as to offenses that are otherwise seen as serious crimes. We may sometimes punish them less severely, for instance by trying them as juvenile offenders. But we don't categorically let them off the hook for a wide range of crimes -- robbery, assault, drug use, and the like -- just because they're 16. (At some age, we might indeed let a child off the hook, or at least handle him through a system that is truly therapeutic and nonpunitive, but that age tends to be far below 16.)
Second, the "16-year-olds shouldn't be punished for what would otherwise be statutory rape because they're too immature" argument doesn't fit well the way many of these laws actually operate. Consider, for instance, the Florida law, which sets a general age of consent of 18, but allows under-24-year-olds to have sex with 16- and 17-year-olds. It's hard to say that the law is trying to cut slack to 21-year-olds because they're too immature, but treats 30-year-olds as criminals because they are mature enough to know better. Sure, 21-year-olds (and even 23-year-olds, who get the same immunity) sometimes are immature in lots of ways, but not generally in the law's eyes when it comes to criminal responsibility.
The same would be true if you had a law like Pennsylvania's "sex with 13-to-15-year-olds OK if the actor is no more than 4 years older than the 13-to-15-year-old" law, which is a pretty common sort of model. This means that even 19-year-olds are excused if they have sex with 15-year-olds (assuming a slightly under 4-year gap), but 18-year-olds aren't excused if they have sex with 13-year-olds.
There might be a good explanation for this rule -- I do think that sex with 13-year-olds is likely to be much more morally troubling than sex with 15-year-olds -- but concern that the 19-year-old isn't mature enough to be punished for having sex with the 15-year-old, though the 18-year-old is mature enough to be punished if the other person is 13, doesn't seem like a good explanation. The focus is on the age gap's causing the relationship to be somehow improper, not on whether the defendant is old enough to be held criminally responsible.
Related Posts (on one page):
- "Statutory Rape" in The Reader:
- Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?
- The Academic Credo
- Ages of Consent for Various Purposes:
- Age of Consent:
16 and 13 Ok
16 and 12 possible life imprisonment if the 16 year old is tried as an adult.
same 16 year old either way.
In other words, 30-year-old has sex with 17-year-old. Age of consent statute is not violated, but girl's father complains to police and charge of contributing to the delinquency of a minor is brought.
im not sure how its contributing to the delinquency of a minor or if it would stick-
but contributing to the delinquency of a minor is not going to make you register as a sex offender-and its probably an expungeable misdemeanor. if your a first time offender you get probation which is expunged a few years later-bug deal.
It is an odd universe indeed where a child is considered capable of forming intent to murder--which is really quite an intellectual exercise involving understanding of crime, punishment, ethics--but is incapable of forming consent to engage in a recreational activity that most of their friends are already engaged in.
Now, is there a good explanation for the "huge age gap is creepy" intuition? I think power-imbalance is more than enough to provide a rational basis. I acknowledge that it strikes me as something of a post hoc explanation for general creepiness.
There are quite earthy reasons for social regulation of male sexual access to adolescent females which might not occur to the rareified minds of legal scholars.
in CA, which i think is what your talking about, the presumption (meaning the rule not the exception) is adult court once your 16 for violent crimes, arson, and manufacturing drugs.
so you say 'everything else' is in juvenile court-wow big deal.
basically, little crimes can be in juvenile court if your 16-thats great-since even in adult court your probably not getting more than 5 or so years for such crimes (even if its grand theft auto)-which is also the limit to what juvenile court can do to you (lock you up till 21-which, if your 16, means 5 years)
so basically, if your 16 (unless the exception happens) your going to jail for just as long as an adult would.
My view is that if the state says someone is too young to consent to sex then they should be forbidden to hold that individual accountable as an adult for other things. What becomes bizarre is when they say two teens are incapable of consent for sex yet they try to hold both of them accountable for the sex and punish each of them as sex offenders. They too immature to have sex with their partner but mature enough to be held criminally liable for having sex with their partner.
And why is it that modern teens have become so incapable? Teens for centuries were marrying and holding jobs and no one thought it bizarre. What we have seen is a movement to extend childhood into adulthood. The main perpetrators, in my opinion, have been trade unions (wanting to keep the young out of the job market) and teachers (wanting to increase the demand for their services). With families getting smaller the desire by parents to get the kids into the world and earning a living has decreased. The young today are mainly “irresponsible” because we have extended childhood and they are being socialized by other teens and not by the adult environment that teens used to enter.
(See The Case Against Adolescence by Dr. Robert Epstein)
that one is even more insidious because instead of the drinking age resting on state law (as it does officially) it rests, de facto, on a federal law prohibiting federal highway aid to states who don't have 21 as the draining age...so all the states change their laws to make it happen. Nice way to take federal control of things that would otherwise be state matters.
heck, why don't the feds just say they wont give federal aid to prisons unless states adopt their criminal law schemes. sickening.
Not that I favor such laws, but not necessarily. It takes a lot more reasoning ability and emotional maturity to recognize and sort through the kinds of manipulation and other influences (external and internal) that may be distorting your un-coerced tendency to say "yes" or "no" than it takes to know what's prohibited.
Are you freaking kidding me? In a discussion on Romeo and Juliet laws, you talk about how much more responsible kids USED to be. Have you read Romeo and Juliet? Better yet, read some history on the middle ages and on how the teenage kings acted. Kids have always acted like stupid kids. It's just that in times past, that was considered normal behavior, and you didn't become a "wise old man" until later...you know like 35 or so.
I don't know what the appropriate age of consent is. It seems like the staggered systems have the better argument on an intuitive level, but I don't know the best theoretical rationale. I doubt anyone is OK with a fifteen year old having sexual relations with a nine year old, so we can rule that one out.
In MI, if I remember right, the age of consent is 16 across the board, unless the older participant is a teacher, and then it is 18. Remembering my high school years in MI, I think that age is the most appropriate. If I could be trusted to operate a car that could wreck havoc, I think I could be trusted to consent to sex.
I'm not sure about allowing 24 year olds more leeway; that seems a bit strange. It makes sense to pick an age where people can consent to sex and expect people to be responsible after that. One thing might be is if they attend the same school - while I would probably still be skeptical here, it is certainly more understandable to allow exceptions for classmates. But I don't see any reason to give a 23 year old leniency with a 16 year old. Of course, the solution here is to remove the exception, which is not I think what you were suggesting in your earlier post.
You are missing the point, which I admit, isn't stated that clearly. Its not that teens through history have acted more responsibly (though in general, they have, just not to a huge degree). Its that they did their "damn stupid things" in adult company and adult society. So that the wiser adult could either forestall the incident, or at least give a smug "I told you so."
Today teens spend much of their time around other teens, where this maturing influence is not present. Indeed, teenage IQ tends to drop in proportion to the number of teens present.
Now, obviously not all of these are absolutes. Shakespeare did write Romeo and Juliet, which hinges on several "well known" teen qualities. And Romeo did spend an awful lot of time hanging out with irresponsible fellow youths.
19 or younger, have sex with whom you wish. 20 or older, you are restricted to sex with people, well, 20 or older.
A nice Scalian bright line rule. Empirical evidence be damned. It makes criminal litigation easy, after all. You know, efficiency.
I'm 18, so following your rule, I can have sex with anyone. I want to have sex with that sexy 30-y/o next door.
I'm clear in the eyes of the law, but she goes to jail?
That strikes me as something less that equitable, but it does have the advantage of following your rule...
This is what they mean when constitutional law professors teach (and I am sure that Professor Volokh has taught this) that the fit of a law need not be exact for it to be constitutional.
Who could possibly complain about that?
Who could possibly complain about that?
Bill Clinton would complain.
Plus, any movie starring Woody Allen, Michael Douglas, or Harrison Ford would be deemed illegal.
Marcus
First, if we agree that it is less "creepy" for a 18-year-old to have sex with a 16-year-old, than for a 24-year-old to have sex with a 16-year-old, then two things happen. (It's kind of like a pension plan as age and years of experience increase your pension payout rate increases much faster then just age.") First, the older individual is more responsible. Second, the act is more creepy. In this sense Romeo and Juliet laws makes sense, especially in California where the age disparity makes significant impact on the severity of the offense.
But the second, and I think more simply relevant aspect of it, especially in the US is this. First how many witnesses are there to an act of Unlawful Sexual Intercourse, usual just 2 and there MAY be some strong (very strong) circumstantial evidence of such an act occuring. However, if both are criminally responsible, neither can really be prosecuted.
This is simply seen in California law where there is a misdemeanor Unlawful Sex when the two are within 3 years of each other. The interesting thing is...this criminalizes the older and the younger. Which means, neither can be prosecuted unless one claims they were raped, or one is given immunity. And that, makes it rarely worthwhile. For someone to testify that so-and-so had sex with me, necesarily incriminates themselves and protects them from testimony by the 5th amendment.
We are talking about consensual sex here, Professor Volokh. So it isn't like other crimes where there is a victim who does not consent. So comparing this to say, trying a 16 year old as an adult for murder just proves that consensual sex and murder are two different things.
16 year olds who have consensual sex with 15 year olds have much less moral culpability than 40 year olds who do it and ought to know better. In contrast, 16 year olds ought to know enough not to commit murder.
Why is that so difficult to understand?
Alec: You are correct from my reading of history. The Progressive movement was the watershed where everything changed and teens suddenly became children. It started in about 1890 and was finalized by the 1940s. By the 1950s we had a new film character “the rebel without a cause”, the alienated and angry adolescent.
Should we make it a crime to have sex with anyone five years younger than oneself? Do we really want 50 years old to go to jail for marrying someone 45?
It seems to me the rationale isn't about the absolute moral/intellectual/emotional development of the individuals involved, but rather their relative development vis-a-vis one another. Two 16-year olds deciding whether to have sex are "negotiating" as equals, whereas a 30-year old presumably has a significant developmental advantage over a teenage partner. These Romeo and Juliette laws are basically the bedroom equivalent of contract law doctrines that take asymmetric bargaining power into account.
Yet this conduct -- treated as a serious crime when an adult does it -- should, you argue, be treated as no crime at all when a 16- or 17-year-old does it (or perhaps also some 23-year-olds, under Florida law, or some 18- or 19-year-olds, under some other states' laws), because the minor is seen as not mature enough to be held responsible. I don't think that's consistent with the way the law generally (and rightly) treats 16- and 17-year-olds who commit serious crimes. Perhaps Romeo-and-Juliet laws still make sense, but not, I think, because the parties are just not mature enough to be held criminally responsible for the act.
A fifteen year old boy is quite capable of committing willful murder in the course of armed robbery. There was a teenager who used multiple identities in investor-oriented chat rooms to pump-and-dump penny stocks; he made several hundred thousand dollars before the SEC caught him.
Such a boy couldn't sign a loan contract.
IMHO there should be no "Romeo and Juliet" exception. All underage persons should be presumed incapable of giving informed consent. None should be presumed incapable of criminal intent or proceeding
Two fourteen year olds? Bust 'em both. Mercy if one can prove absence of criminal capacity (truly didn't know better).
I'd further add that apparent age or maturity of the victim should not be a defense, anymore than it is for a bartender who sells liquor to an underage buyer. Nor should it be a defense that the underage party wanted sex; as with liquor, or tobacco, it should be a crime to provide it.
Having said all that, I think a flat age of consent of 16 is appropriate, with no mods for age difference. Adult is adult.
I'm for a flat age of consent of 16 (and lowering the drinking age to 18. I'm also for ending high school at 16, but that's a different discussion.)
I would suggest though that the reason that we think that it is creepy is that there is a big difference in sophistication between most 15 year old girls and 25 year old guys. Part of that sophistication is that the 25 year old guys typically know exactly what they are doing to get the girls in bed, while the 15 year old girls do not know their bodies nor how seductions typically work to see what is happening during one.
In other words, my view is that in the case of most cases of sex between mid and lower teen aged girls and guys a decade or so older, the guy is a predator and the girl his victim. Indeed, I think that you even see this some with girls 3 and 4 years younger, such as the Senior boy and the Freshman girl.
Sure, not always. About 7 years ago, I ran into a situation where a 13 and a 14 year old girls were tricking after school while still in middle school. We were after one of the guys involved, and he ended up getting the mandatory 20 or so when convicted of pimping and filming them having sex for kiddie porn. But most of the time when you have the big age difference with teenagers, the adults are exploiting the teenagers through their much greater experience.
I take this as a consequence of feminism and state level ERA.
"It's his site, he can do whatever he wants" is never an adequate reason for censoring comments. Volokh Conspiracy has been authoritatively cited by dozens of law journal articles and at least two court opinions. VC is therefore especially obligated to follow the highest ethical standards in treating comments. VC should never censor comments without very good reason.
Larry Fafarman
Association of Non-Censoring Bloggers
With two 16-year-olds, there's no victim. With a 30-year-old and a 16-year-old, there (arguably) is. The 30-year-old is likely to be far more sophisticated; it's not a fair playing field. Further, the 30-year-old is likely to be shooting for teenaged girls with outside problems. (Sure, there are other situations. It's a question of probabilities.)
In all of these situations, there's a gradation from "Not problematic," to "Should be socially disapproved," to "Should be criminally sanctioned." California has a graded system which seems to work pretty well.
While I'm a prosecutor (speaking only for myself) I don't claim any special expertise on the nature of older teenagers, or what the age of consent should be. But the grading seems to work.
On a side issue: Larry Fafarman, why, exactly, does Volokh owe any obligation at all to anyone? Unless we're talking about false edits of comments, or something dramatic, the nature of a blog is that the people running it.... well, they run it.
Note that arguing that a less-censory comment-kill policy would be better/faster/smarter/whatever is different than arguing that our host has an affirmative obligation to society at large to have such a policy.
The fact that Volokh is a known quantity - even occasionally cited - is a sign that the blog is doing a good job of what it wants to do. If Eugene decides to throw me out of the comments for disagreeing with him, he can; this may be at the expense of light blowback, but it's his blog.
The blog provides excellent free content. Censoring comments intelligently is a good idea (to my way of thinking.) Decisions on this might not be perfect, but from what I've seen, they're pretty good. And the only obligation Eugene might have is to his fellow conspirators; the receivers of the free posts and commentary can choose not to receive it.
--JRM
Not so much.
From an article first published in National Geographic, March 2005: "The mind is what the Brain Does":
So perhaps expecting levels of mechanical compliance with statute is reasonable at age 19, but we actually aren't ethically mature till around 25.
Now, that doesn't necessarily mean we should go ahead and make laws and then not expect compliance from 18-25 year olds either!
This seems the most logical approach to me. If by some consensus we arrive at 16 as the arbitrary age of consent, then it's a crime to have sex with anyone under 16, period. We can have lighter sentences for minors, as youthful offenders, and come up with some sort of punishment if both parties are under the age, but any adult having sex with anyone under the age of consent is committing the same crime, and should be sentenced under the same guidelines. Simple, easy to understand, and fair.
The diminished ability to control the situations you find yourself in, IMO, justifies diminished responsibility when they turn out badly.
If we want to fuzz the criminal responsibility line, we need to fuzz it both ways. 16 year olds need to be able to get legal control over themselves as adults as least as easily as the justice system does.
At least in Virginia, the law used to get around this problem by criminalizing only intercourse with a female under the age of consent (which back then was 16). Thus, if two 15-year olds were going at it, the boy was the only one who could be charged--and he could even be charged if he was younger than the girl.
If that sounds nuts (and it does), I would point out that at many colleges today, a similar rule is applied with respect to alcohol and date rape: if the woman was drunk, that means she was incapable of giving valid consent, so the man is guilty of rape. On the other hand, the fact that he was also drunk, and maybe drunker than her, in no way means that he was incapable of forming criminal intent.
Volokh Conspiracy is not just "occasionally cited" -- as of Aug. 16, 2006, VC was recorded as having been cited 62 times in law journal articles. The number is probably well over 100 by now. VC has also been cited at least twice in court opinions. Why would a court or law paper author want to cite a blog article that because of arbitrary censorship presents only one side of a controversial issue, or want to cite a blog article that has a serious factual error because a comment that corrected that error was censored? Arbitrary censorship of blog comments is always bad, but it is especially bad on a blog that is frequently authoritatively cited by court opinions, law journal articles, or other authorities.
"Doing a good job of what it wants to do" is no excuse for arbitrary censorship of comments. Unfortunately, we have a very sick Internet culture that tolerates arbitrary censorship of blog visitors' comments. And it is usually the highly persuasive dissenting comments that are arbitrarily censored. Unpersuasive dissenting comments are usually retained for the purpose of trying to give an often false impression that the opposition is weak.
(4.27.2008 8:19pm)