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Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?

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):

  1. "Statutory Rape" in The Reader:
  2. Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?
  3. The Academic Credo
  4. Ages of Consent for Various Purposes:
  5. Age of Consent:
Tony Tutins (mail):
The law reflects the reality that girls date older boys, based on at least a folk belief that girls mature faster than boys. These are not the only such laws. When my parents were dating, the drinking age was 18 for women and 21 for men, because the legislature assumed that men would take younger women on dates where alcohol was served.
4.25.2008 6:00pm
George Weiss (mail) (www):
indeed. in MD too.

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.
4.25.2008 6:05pm
Carolina:
One thing I haven't seen anyone mention yet in this discussion is some states will prosecute for contributing to the delinquency of a minor even if the girl is over the age of consent.

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.
4.25.2008 6:06pm
George Weiss (mail) (www):
carolina-

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.
4.25.2008 6:15pm
PatHMV (mail) (www):
The question in a minor-on-minor consensual sex act is: who's the victim? Yeah, you can make it illegal, perhaps, but in reality, why bother? Is the girl automatically the victim? Are you always going to prosecute BOTH of them? That's just stupid, clearly, a vast waste of police resources.
4.25.2008 6:21pm
John McEnerney (mail):
We might take notice of the fact that many States have in recent years changed their laws to allow children as young as 12 (younger, even?) to be tried as adults in the case of serious crimes such as murder or rape.

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.
4.25.2008 6:30pm
AK (mail):
13-year-olds can consent to certain things that we have deemed to carry low risks of harm. A 13-year-old can consent to exchanging cash for an candy bar because there's little risk of harm befalling the child from the candy bar. That same 13-year-old cannot consent to exchanging cash for alcohol or tobacco or a gun because those are dangerous products. Sex with an adult is dangerous to a 13-year-old in ways that sex with a 15-year-old is not. In other words, minors can consent to sex, but they can't consent to especially risky sex.
4.25.2008 6:33pm
George Weiss (mail) (www):
John McEnerney: indeed. except of course, that a beautiful little 12 year old girl is more likely than a 12 year old male to be tried as a juvinille if she does something wrong...so it eds up being entirely consistently unfair. ;)
4.25.2008 6:38pm
AK (mail):
John McE: Of course, not all 12 year olds are judged fit to be tried as adults. The state has the burden of showing that they're competent. The inequity is that the defendant in a statutory rape case cannot argue that the child was competent to consent to sex.
4.25.2008 6:40pm
Armen (mail) (www):
I think the first premise is wrong. We generally don't think that anyone under 18 is capable of committing a crime. This is why minors are not convicted of a crime, they are found "delinquent" under the W&I Code (not the Penal Code). They're not prisoners, they're wards. There's a whole vocabulary out there to distinguish them from criminals, because they have not committed a crime. Exceptions for violent crimes, etc. bring them within the Penal Code, but those are the exceptions. So, that first premise is just not right. Unless by we, you mean, me and a couple of other people.
4.25.2008 6:41pm
tvk:
I think the explanation runs the other way. There is a social consensus that a large age gap (say, 10 years) is always creepy and society has an interest to stop it. There is general social condemnation, for example, of Anna Nicole Smith. But, we think that an 18-year-old has more right to decide his or her own life without state paternalism than a 16-year-old. Thus, we criminalize the behavior with a 16-year-old that we would not with an 18-year-old.

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.
4.25.2008 6:50pm
Triangle_Man:
Isn't this at least partly motivated, or supported, by parents who don't want their kids having sex with older people? If the parent can't prevent their kids behavior, then they want consequences for the other party. I'm reminded of the lines from Juno, where Juno and her father independently point out that the sex [obviously] wasn't the boy's idea.
4.25.2008 6:58pm
CJColucci:
Speaking of Anna Nicole Smith, who will always be fondly remembered for her contributions to the law of federal jurisidiction, I recall a magazine ad with a tall, buxom blonde leaning (not quite far enough) over a wedding cake with a wizened old groom. The caption read: "They say she's only marrying me for my money --- Like I care!" Don't remember a damn thing about the product, so it was probably a lousy ad.
4.25.2008 7:01pm
Thomas_Holsinger:
I got in here late. This is a perfect example of legal professional myopia. Professor Volokh might consider some research into evolutionary psychology and its explanation of the sexual attraction mature males feel for adolescent females. I'll even give a hint. 5% of conceptions occur on a human female's first intercourse.

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.
4.25.2008 7:13pm
Gulf Coast Bandit (mail):
It's his site, he can do whatever he wants. Now STFU. [EV: This was responding to some comments that I deleted. Thanks for the support, and sorry your comment ended up being hard to understand as a result.]
4.25.2008 7:14pm
George Weiss (mail) (www):
armen; its not 'the exception rather than the rule'

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.
4.25.2008 7:15pm
wmb:
The mishmash of laws on such matters are contradictory and confusing to most people. On one hand politicians get teary-eyed to protect a teen for consenting sex, often even with another teen. The pious pols will argue that the teen is too young to make a responsible decision. A similar aged teen is involved in a crime and the same politicians scream for vengeance arguing the teen should be held responsible.

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)
4.25.2008 7:27pm
George Weiss (mail) (www):
its just like the old "if i can die for my country in war then i should be old enough to drink' its obviously true-but nobody cares.

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.
4.25.2008 7:38pm
Clayton E. Cramer (mail) (www):

The pious pols will argue that the teen is too young to make a responsible decision. A similar aged teen is involved in a crime and the same politicians scream for vengeance arguing the teen should be held responsible.
I'm sure that you can find some examples of this. I'm sure that there are a lot of politicians that don't.
4.25.2008 7:55pm
LM (mail):
The reason for prohibiting 30 (or 40 or 50) year olds from having sex with 16 year olds is simple: If we didn't, nothing would ever get done.
4.25.2008 8:12pm
PatHMV (mail) (www):
Seriously, if you criminalize 2 minors having sex, you are saying two at least somewhat contradictory things at once. One, you're saying that they are too immature to consent to sexual contact. Two, you're saying that they are nevertheless mature enough to form the mental intent to commit a crime. It's really more than a wee bit contradictory.
4.25.2008 8:14pm
LM (mail):

It's really more than a wee bit contradictory

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.
4.25.2008 8:50pm
hattio1:
wmb says something I have heard mentioned by several commenter in these threads;


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.


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.
4.25.2008 9:14pm
Alec:
There's a great book on the topic of (inter alia) statutory rape and sex offender laws, Moral Panic, by Philip Jenkins. I had no idea that before the late 1800s the average age of consent was 10 (yes, most U.S. states sanctioned pedophilia). He makes a compelling argument that these laws were associated with early progressive movement and women's suffrage. There was a second period concerned with sexual psychopaths (including, of course, gay men, transvestites and people who had sexual fetishes), followed by the more modern (and overreactive) current period, with repressed memories, mass abuse of women and children, pornography, the convergence of far left feminism and far right religious extremism, etc.

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.
4.25.2008 9:53pm
jvarisco (mail) (www):
When a 30 year old has sex with the 16 year old, only the 30 year old is prosecuted. I think this is the case even where the 16 year old might have "initiated" - notice the couple of high profile cases involving older women and younger men. So it seems like even if sex between 16 year olds was criminal, no one would be prosecuted. Which is what we have now.

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.
4.25.2008 11:06pm
TheGut (mail):
hattio1,

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.
4.25.2008 11:10pm
Alec:
Why not just codify the definition of teenager?

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.
4.26.2008 12:10am
John Burgess (mail) (www):
Alec: Except for the self-contradiction contained within your bright line rule...

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...
4.26.2008 12:54am
Dilan Esper (mail) (www):
Now Professor Volokh is fumbling around a bit. Clayton Cramer had the right answer in the other thread; the law has a justification based on the diminished moral culpability of teenagers, but you have to draw a line somewhere and wherever you draw it there's going to be some people who seem to be on the wrong side of the line from the standpoint of the justification.

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.
4.26.2008 1:04am
Letalis Maximus, Esq. (mail):
Why don't we just do it this way: make it a crime to have sex with anyone who is more than, say, 5 years younger than you.

Who could possibly complain about that?
4.26.2008 10:14am
Gaius Marius:
Why don't we just do it this way: make it a crime to have sex with anyone who is more than, say, 5 years younger than you.

Who could possibly complain about that?


Bill Clinton would complain.
4.26.2008 10:31am
Eugene Volokh (www):
Dilan: You write, "the law has a justification based on the diminished moral culpability of teenagers, but you have to draw a line somewhere and wherever you draw it there's going to be some people who seem to be on the wrong side of the line from the standpoint of the justification." But my point was, (1) the law generally thinks that 16-year-olds are plenty morally responsible enough to be punished for their crimes; why make an exception for this crime, which is treated as quite serious when adults do it?, and (2) if the perception is the lower moral responsibility of teenagers, presumably under-18-year-old teenagers, one can draw various lines but 24 is a mighty odd one (as is a variable line depending on the age of the other person). If the law just drew a line at, say, 13, that would be a different story, and I wouldn't object that some 12.9-year-olds are distinguished from some 13.0-year-olds.
4.26.2008 11:06am
Randy R. (mail):
"Bill Clinton would complain."

Plus, any movie starring Woody Allen, Michael Douglas, or Harrison Ford would be deemed illegal.
4.26.2008 11:27am
MLivius (mail):
So, is my marriage to woman 16 years my junior a crime?

Marcus
4.26.2008 11:42am
gov98 (mail):
Two aspects of responsibility.

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.
4.26.2008 1:21pm
Dilan Esper (mail) (www):
the law generally thinks that 16-year-olds are plenty morally responsible enough to be punished for their crimes; why make an exception for this crime, which is treated as quite serious when adults do it

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?
4.26.2008 4:33pm
wmb:
Hattio1: Teens previously entered the adult world when they hit adolescence and spent more time with adults learning social behavior from adults. Now they mature and learn their behavior from other unsocialized teens. Which off the two do you think is more likely to produce irresponsibility? Do the young make mistakes? Yes, but rather they make mistakes socializing with adults than with other teens since the former are more likely to show them the correct way of acting. Your argument strikes me as similar to saying someone shouldn't be allowed to apprentice because apprentices are more likely to make mistakes than master tradesmen. True but how do they become masters but by experience including mistakes?

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?
4.26.2008 5:19pm
Elais:
Has the gender balance been addressed? How many underage females are prosecuted for having sex with a younger male?
4.26.2008 5:57pm
Matt_101 (mail):
I'm obviously late to the commenting here, so my apologies if someone suggested this already....

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.
4.26.2008 6:19pm
Eugene Volokh (www):
Dilan: I'm pretty sure that I understand you -- I just don't agree with you. According to you, consensual sex by adults with 15-year-olds ought to be treated as a serious crime (even though it's consensual), presumably because it can create various serious harms to the 15-year-olds. It's generally treated as a more serious crime than many kinds of theft, assault, and the like. And we generally treat 16- and 17-year-olds as legally culpable when they commit such serious crimes, including "consensual" crimes such as drug dealing.

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.
4.26.2008 7:18pm
Rich Rostrom (mail):
There is no reason to think that the ability to form criminal intent and the inability to give informed consent are contradictory.

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.
4.26.2008 7:19pm
GatoRat:
I am baffled by the notion that a 40 year old has more capacity to decide anything than a 25 year old. Seems to me that this is simply an extension of the continuing infantilization of adults.

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.)
4.26.2008 11:04pm
GatoRat:
One other point. Having raised a girl and a boy past the age of 16 (with two more to go of each sex) and having been around their friends, I am still astonished at how sexually predatory the girls are relative to the boys. If any of the girls turned on the charm, no male stood a chance. Thing is, though, they stuck with kids their own age.
4.26.2008 11:13pm
Bruce Hayden (mail) (www):
I don't think that it is that sex with the parties 10 years apart is in itself creepy. Indeed, my ex-wife is 9 years younger than I - but we got married when she was in her mid twenties and I in my mid thirties. And, in my later 50s now, dating women 10+ years younger is becoming much more comfortable. Right now, my fuzzy line is about 45. So many of the women my age have gone through menopause... But rather, 10 years difference with a mid-teen is a big difference.

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.
4.27.2008 4:19am
Bruce Hayden (mail) (www):
One of the things that I find humorous about this is that the two sexes are not really equal here, though the law would want us to believe that they are. The average 15 year old boy would likely jump at the chance to have sex with a 25 year old woman, and would likely not receive any hurt from it. Yet the law seems to typically treat that as identical to when the sexes are reversed.

I take this as a consequence of feminism and state level ERA.
4.27.2008 4:24am
pscyhdoc (mail) (www):
Professor Volokh, The answer to the appropriateness of considering an age interval exception does not lie primarily in considering cognitive ability or even social competency but rather intuitively reflects a consideration of healthy narcissism. In his original consideration of narcissism, Freud hypothesized that we first of love ourselves and left over energy would be transferred to another object of love. Thus, like in the classical myth of Narcissus, we see ourselves in the other. A 13 year old sees themslves more in other 13 year olds or 14 and 18 more in 17 etc. In pathological narcissism as defined by Kohut, a person may have a grandiose self in which their value is reflected in the statement, 'I am everything and you are nothing.' Such a relationship is likely to be destructive to the 'nothing' and would be more likely to occur where the ordinary identifications of narcisssism reflecting, in part, being of similar age, do not obtain.
4.27.2008 12:44pm
Larry Fafarman (mail) (www):
Gulf Coast Bandit (4.25.2008 6:14pm) --
It's his site, he can do whatever he wants. Now STFU. [EV: This was responding to some comments that I deleted. Thanks for the support, and sorry your comment ended up being hard to understand as a result.]

"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
4.27.2008 2:01pm
John R. Mayne (mail):
I think graded rules are better. I also think prosecutorial discretion is sometimes necessary on these cases.

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
4.27.2008 9:19pm
douglas (mail):

one can draw various lines but 24 is a mighty odd one


Not so much.

From an article first published in National Geographic, March 2005: "The mind is what the Brain Does":

The last area of the brain to reach maturity is the prefrontal cortex, where the so-called executive brain resides—where we make social judgments, weigh alternatives, plan for the future, and hold our behavior in check.

"The executive brain doesn't hit adult levels until the age of 25," says Jay Giedd of the National Institute of Mental Health, one of the lead scientists on the neuroimaging studies. "At puberty, you have adult passions, sex drive, energy, and emotion, but the reining in doesn't happen until much later." It is no wonder, perhaps, that teenagers seem to lack good judgment or the ability to restrain impulses. "We can vote at 18," says Giedd, "and drive a car. But you can't rent a car until you're 25. In terms of brain anatomy, the only ones who have it right are the car-rental people."


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!
4.28.2008 1:52am
Extraneus (mail):
Rich Rostrom:

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

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.
4.28.2008 8:01am
David Schwartz (mail):
On a related note, I don't think it's fair to try people under the age of 18 as adults when they don't have the legal right to control their own life. If I hated a person so much that if I ever saw them again, I might be unable to keep myself from killing them, I can move. If a 16 year old feels that way about one of his parents or a teacher, there's not a whole lot he can do.

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.
4.28.2008 10:55am
Seamus (mail):
Seriously, if you criminalize 2 minors having sex, you are saying two at least somewhat contradictory things at once. One, you're saying that they are too immature to consent to sexual contact. Two, you're saying that they are nevertheless mature enough to form the mental intent to commit a crime. It's really more than a wee bit contradictory.

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.
4.28.2008 11:05am
markm (mail):
Seamus: so you justify one possibly irrational law by citing another irrational and positively biased law?
4.30.2008 12:06am
Larry Fafarman (mail) (www):
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.

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.
4.30.2008 2:09am
Larry Fafarman (mail) (www):
My preceding comment was a response to John R. Mayne
(4.27.2008 8:19pm)
4.30.2008 2:13am