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U.S. Commission on Civil Rights, Justice Ginsburg,

AND THE AGE OF CONSENT: [UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Several days ago, I ran across an allegation — one which has been repeated in quite a few places — that a 1977 U.S. Commission on Civil Rights report, co-drafted by then-Professor Ruth Bader Ginsburg, suggested that the age of consent be lowered to 12. That struck me as a likely myth or an out-of-context quote, so I decided to look into it.

To my surprise, the allegation seems largely accurate, though in the limited context of the federal territorial and maritime jurisdiction. (The report was referring only to federal law, and most sex crimes are covered by state law rather than federal law.) The report was Sex Bias in the U.S. Code, and it was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here's what the report said on p. 95 about the relevant statue, 18 U.S.C. § 2032:

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

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

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

But here's the suggestion on p. 102:

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

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

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

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

In any event, when I investigate improbable-sounding accusations and find them to be bunk, I like to post about that; so it seems to me that when they prove to be true, it's worth noting them. Again, I'm not sure what this says about Justice Ginsburg's past views, or for that matter her present views; but I'd love to hear any perspective that readers who are familiar with the late 1970s debate might be able to provide (preferably with details and citations).

Justice Ginsburg's Past Endorsement of Lowering the Age of Consent to 12:

[UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Sen. Lindsey Graham recently said that Justice Ginsburg "represents the ACLU," "wants the age of consent to be 12," and "believes there's a constitutional right to prostitution." Timothy Noah (Slate's Chatterbox) calls this a "smear." Mr. Noah is far kinder to my earlier comments about the Ginsburg-age-of-consent matter, but still refers to them as "analytically faulty." He also faults "Edward Whelan, president of the conservative Ethics and Public Policy Center" for making the same "ridiculously distorted" "pro-pederasty accusation."

I've wanted to comment further on this ever since Mr. Noah's piece was called to my attention on Monday, but it took a day and a half for me to get the relevant source from the library. Now I have the data, and can say a few words about the issue, and about whether the charge is a "smear" or a legitimate allegation.

1. Justice Ginsburg is indeed on the record as having endorsed lowering the age of consent to 12. When she was a law professor at Columbia, she, Brenda Feigen-Fasteau, former director of the ACLU's Women's Rights Project, and 15 law students put together a report for the U.S. Commission on Civil Rights. The report, released in 1977, gave as one of its "Recommendations" (p. 102):

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

The report also said (p. 97) that "Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions" (citing the right-of-privacy cases), and urged that various federal prostitution statutes be "[r]epeal[ed]." This isn't precisely the same as saying that "there's a constitutional right to prostitution," because of the qualifier "arguably," but it's not that far off; the report wasn't merely impartially noting that this is one possible position, but seemingly endorsing it as the sounder position.

2. Was the quote, though, taken out of context? That, I take it, is the heart of Mr. Noah's argument. "Yes, the language Ginsburg quotes with approval puts the age of consent at 12, which does seem awfully young. But she isn't addressing herself to the age issue; she's addressing herself to the gender issue. Is her praise meant to constitute an endorsement of the entire bill? Of course not. Ginsburg makes this explicit in a footnote in which she complains that even this language 'retains use of the masculine pronoun to cover individuals of both sexes,' which at the very least is confusing if it's intended to outlaw statutory (and other) rape by women, too." (Here Mr. Noah is quoting from a 1974 version of this report; he didn't have a copy of Sex Bias in the U.S. Code.)

Yet then-existing federal law set the age of consent at 16. If the Ginsburg report had only intended to make the law sex-neutral, it could have done so without suggesting a new age of consent, or endorsing a proposed federal bill that lowered the age of consent. Yet the Ginsburg report's proposal recommended the replacement of a sex-specific age of consent of 16 with a sex-neutral age of consent of 12. It seems to me quite fair, and not a "smear," to fault the report for suggesting this change.

The report's recommendation tracked the proposal in a then-recent senate bill (S. 1400 § 1633), but the authors were perfectly free to urge their own language, or to urge a mix of the bill language and their own language. In fact, as Mr. Noah himself points out, the Ginsburg report criticized S. 1400's use of "he" to cover both men and women. If the Ginsburg report disagreed with the proposal's lowering of the age of consent to 12, the report could easily have noted that as well, or at least could have noted that it was agnostic about the age of consent, and was recommending only the sex-neutralization aspects of the S. 1400 proposal.

Moreover, the Ginsburg report isn't bashful about expressing itself on some matters besides sex discrimination. For instance, its criticism of prostitution bans isn't limited to objections that the bans discriminate based on sex (either on their face or in their enforcement); the report also argues that prostitution may be substantively constitutionally protected as part of people's sexual autonomy rights (p. 72 of the 1974 version, p. 97 of the 1977 version). The Report likewise faults the Mann Act, which "prohibits the transportation of women and girls for prostitution, debauchery, or any other immoral purpose" (emphasis mine) not just for its sex discrimination, but also because it is "too broad and vague," and an "invasion of privacy" (p. 73 of the 1974 version, p. 98 of the 1977 version).

Mr. Noah suggests that "Ginsburg didn't address the age-of-consent issue because it wasn't relevant to her topic. Say it with me. She wasn't writing about age; she was writing about gender!" Yet the report, though about gender and not about sexual autonomy rights, vagueness, or overbreadth, opined on a possible constitutional right to engage in prostitution, and the vagueness and breadth of the Mann Act. If the report's authors found fault with the Senate bill's proposed age of consent, they could likewise have easily said so. (Mr. Noah is right to point out that the report's authors continued to include the spousal rape exception in their recommendation, though it's probable that they didn't much like that exception. That part of the recommendation, though, maintained then-existing law, so presumably the drafters didn't want to take on a new fight there. The lowering of the age of consent, though, would have dramatically changed existing law, and it's hard to see why they would endorse the change if they didn't actually support the change.)

3. Mr. Noah also asks — based on my own observation that the version of S. 1400 § 1633 that I could find provided an age of 16, not 12 — "Could all this Sturm und Drang be over . . . a typo? A typo that, mysteriously, was transposed from Ginsburg's 1974 paper to the 1977 booklet? That would be too rich."

As it happens, I have just today found another version of S. 1400 § 1633 (excerpted in 13 Crim. Law Reporter 3011, Apr. 4, 1973), which did set the age of consent at twelve. This must be the version to which the Ginsburg report referred. Yet even if it were possible that the Ginsburg report simply had a copying error in it (I surely can't fault Mr. Noah for not having found the version that I couldn't find earlier myself), I don't see how this possibility would make Sen. Graham's and Mr. Whelan's criticism of Justice Ginsburg into a "smear," or even how it would "seriously undermine[ Volokh's original] argument" (Mr. Noah's words).

It seems to me that people are entitled to take others' proposals at face value, at least unless there's an obvious drafting error (to give a hypothetical example, imagine a proposal that mentions an age of consent of "sixteen days" instead of "sixteen years"). If the proposal's author then says "Whoops, I miswrote something," or even "Very sorry, a too-libertarian student added this, and I didn't catch it," we should certainly consider that explanation, and generally accept it. But unless such an explanation is forthcoming from the authors or others who know (and not just guess), it's no "smear" to accurately summarize and criticize others' writing.

4. Finally, I should certainly acknowledge that Sen. Graham was inexact in the tense of his statements that Justice Ginsburg "represents the ACLU," "wants the age of consent to be 12," and "believes there's a constitutional right to prostitution." Obviously, Justice Ginsburg represented the ACLU in the 1970s; she doesn't represent them as a lawyer now. Moreover, we don't know for sure that Justice Ginsburg, even if she endorsed every word in her report, would still recommend today that the age of consent be lowered to 12, or would still say that there's even "arguably" a constitutional right to prostitution. Justice Ginsburg's reputation as a judge in the 1980s and a justice since the 1990s has been of a relatively moderate liberal, not the harder-core liberal that seems to be visible in the pages of the reports. Perhaps she's changed her views (as Mr. Noah suggests), or, again, perhaps she didn't closely review every word that appeared in the initial report. But again it hardly seems like a "smear" to attribute to people their past views, unless they have specifically recanted their views; the more careful and precise usage is to make clear that Justice Ginsburg said she wanted this in the past, not that she wants it today, but the less careful usage is no smear.

* * *

It thus seems to me that Sen. Graham and Mr. Whelan are more sinned against than sinning here. They accurately reported or quoted the views expressed in the report that Justice Ginsburg cowrote. The accounts are indeed in context, given that the report was suggesting a change in the law, and that the report felt free to opine not just on sex discrimination but also on some substantive matters. Maybe there was an error in the report, maybe Justice Ginsburg didn't fully check everything the report contained, or maybe her views are different now. But it seems to me unsound to characterize Sen. Graham's statement as a "smear" or Mr. Whelan's accurate quotes from the Ginsburg report as "ridiculously distorted."

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Justice Ginsburg, Prostitution, and Polygamy:

Slate's Dahlia Lithwick writes, as an aside in a piece on John Roberts:

Lest you think I'm being too easy on Senate Republicans, I hasten to add that Lindsey Graham's (and today, John Cornyn's) disgraceful use of these hearings to attack Ruth Bader Ginsburg as a champion of legalized prostitution, polygamy, and pederasty is beyond vile. . . . [E]ven as [conservatives] call for bipartisanship, they can't seem to resist attacking a judge with distorted versions of her 30 year old writings. Nice.

Yet it seems to me that there's no real "distort[ion]" of Justice Ginsburg's views on prostitution, polygamy, and lowering the age of consent; and it's hard therefore to see why there's any "disgraceful" or "vile" in the Republicans' arguments. I've blogged here about the age of consent question [UPDATE: since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error as to the age of consent, and the report's critics, including me, themselves erred in not seeing the error on this particular matter], but let me speak a bit more about prostitution and polygamy. Sex Bias in the U.S. Code (1977), on which Ginsburg was one of the two lead coauthors, has this to say (among other things) about prostitution (pp. 97-102; there is similar text at pp. 72-76 of a 1974 version of the report):

These [federal] prostitution proscriptions are subject to several constitutional and policy objections. Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). But sex-neutralizing the statutory language is unlikely to effect significant substanive change, for enforcement concentrates on the female even when male prostitution is encompassed in the same category. With the exception of several communities where it is police policy to arrest the client also, it is realistic to expect that vigorous enforcement will be directed against the person who patronize a prostitute. . . .

Although S. 1400 §1841, in contrast to the Mann Act which it would replace, is cast in sex-neutral form, retaining prostitution business as a crime in a criminal code is open to debate. Reliable studies indicate that prostitution is not a major factor in the spread of venereal disease, and that prostitution plays a small and declining role in organized crime operations. . . .

Recommendations . . .

18 U.S.C. §§1384, 1952(b), 2421-2424 [the prostitution sections that the report was referring to] — Repeal these sections.

The report also has this to say about polygamy (pp. 195-196; see pp. 190-191 for similar text in the 1974 version):

This section [48 U.S.C. §1461] restricts certain rights, including the right to vote or hold office, of bigamists, persons "cohabiting with more than one woman," and women cohabiting with a bigamist. Apart from the male/female differentials, the provision is of questionable constitutionality since it appears to encroach impermissibly upon private relationships. [Endnote: Cf. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 439 (1972).]

Recommendations . . .

48 U.S.C. §1461 - substitute 'person' or 'individual' for 'woman.' If the section is retained, it should be narrowed to avoid conflict with constitutionally-protected privacy interests.

So the report indeed spoke out in favor of legalizing prostitution: It (1) suggested that prostitution laws are "arguably" unconstitutional under the right of privacy, (2) argued that they are in practice nearly certain to be enforced in sex-discriminatory ways, and that (3) expressly recommended that they be repealed. It thus is no distortion at all, I think, to suggest that Justice Ginsburg supported legalization of prostitution, given that her name is indeed on the report, and that it's unlikely that she would have just missed an extended substantive passage such as this one.

It also seems to me that the report can fairly be read as favoring the legalization of polygamy. It is conceivable that it might have been objecting only to restrictions imposed on women who are not themselves purporting to be married to a bigamist, but who are simply living with the bigamist without claiming a marriage. But given that the section was in practice likely to be focused on people who are indeed purporting to be living in plural marriages, it seems that the report was indeed suggesting that the ban on polygamy was illegal. (Note that the section could not be reasonably read, I think, as objecting solely to stripping polygamists of the right to vote: Given that it's permissible to strip someone of the right to vote because of his past crimes, the constitutional objection must be that polygamy can't be criminalized in the first instance. Moreover, the objection is to "encroach[ing] impermissibly upon private relationships," with cites to the right-of-privacy cases, not to encroaching impermissibly upon voting rights.)

So in any event, it seems to me that assertions that Ginsburg supported legalizing polygamy are at most potential overreadings of the report — albeit overreadings that are perfectly plausible, though not the most careful, interpretations — and not "vile" "disgraceful" "distort[ions]." And, as I said, such assertions about her supporting legalized prostitutions seem to be completely accurate.

As I noted in my earlier post, one could argue that Justice Ginsburg only believed this in the past, and might not believe this now, 30 years later. But she was in her 40s at the time, and a mature legal scholar; and there seems to me to be little independent evidence that she's changed her mind. It thus seems like a fair inference that she has kept her views, and there seems to me little vile, disgraceful, or distorted in making such an inference.

Likewise, it seems to me that Timothy Noah, Slate's Chatterbox, is mistaken in generally characterizing as "ridiculously distorted" Ed Whelan's quotes from Justice Ginsburg's report. Ed Whelan wrote, quoting the 1974 version of the report:

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [190-191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.” [75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [131]

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [133]

Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

As best I can tell, all of these quotes are quite sound, and in context. They may have profited from slightly more context — see, for instance, the Boy Scouts/Girl Scouts quote, which in context gives more evidence of the stereotyped sex roles that Justice Ginsburg was referring to. But none of them strike me as being particularly out of context, as you can see for yourself by looking at the 1974 version of the report, posted by Mr. Whelan.

Again, then, it seems to me that the critics of Justice Ginsburg are more sinned against than sinning here. They are pretty accurately describing Justice Ginsburg's views, and being undeservedly called names because of it.

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

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

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

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

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

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

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

But here's the suggestion [given under the heading "Recommendations"] on p. 102:

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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