Age of Consent:
Many states have lower ages of consent for sex among minors than for sex between adults and minors. Thus, two 16-year-olds having sex may be legal, but not a 30-year-old having sex with a 16-year-old.
I share the intuition behind this distinction, but I wonder whether my intuition is right. For instance, I would think that quite a few 16-year-old girls who are interested in sex would rather be involved with 30-year-old men than with other 16-year-olds; the 30-year-olds are more likely to know what they're doing both sexually and romantically, plus are more likely to be much more emotionally mature as well as interesting to talk to. What's more, to the extent that women are said to be attracted in some measure to success (not just financial but professional and social), the 30-year-old may be much more attractive to them. Plus if a serious relationship ensues, the 30-year-old might be a better influence on the 16-year-old than another 16-year-old would be.
Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever "sexually exploitive" might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they're entirely unable to lie and manipulate -- and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.
Of course, 16-year-olds are more likely to be thrown together with other 16-year-olds in social contexts, and are thus more likely to "naturally" become interested in each other. Perhaps then the rationale is simply that you can't stop such sex without prosecuting millions of people, while you can stop adult-adolescent sex, which might be more likely to be more common. But the effect of the law is still to channel some 16-year-old girls away from sex with adults and into sex with other teenagers. That would make sense, I think, only if we think that sex with teenagers is better for them than sex with adults would be. But why is that so?
Query, also, whether the analysis should be different when we get to 14-year-olds or 15-year-olds, but please set aside for purposes of the analysis flat rules that categorically forbid sex between anyone and someone under a certain age. Those rules are easy enough to explain, as being based on concern about (say) a 15-year-old not being mature enough to make a decision that can be so emotionally and physically dangerous. The tougher question is why the 15-year-old should be allowed to make such a decision when the partner is another 15-year-old as opposed to a 25-year-old. (Note that I'm talking about sex between adult men and adolescent girls; one can ask similar questions with the sexes reversed, and as to gay and lesbian sex as well. But my sense is that the bulk of the sexual conduct that is actually punished or deterred by these laws is between adult men and adolescent girls, so I thought I'd focus on that.)
Now perhaps my skepticism here is unjustified. I wouldn't mind being persuaded that it is unjustified, since as I said I find the distinction between "Romeo and Juliet" sex (the laws allowing sex between minors who are close together in age are often called "Romeo and Juliet" laws) and adult/teenager sex appealing -- though look what happened to Romeo and Juliet. I just wonder whether we can be confident enough in this distinction.
And, just to stave off the speculation, I've never dated a minor while I've been an adult, and have never wanted to date one. Among other things, I've generally found adult women considerably more attractive and interesting than underage ones (much as I suspect that some many adolescent girls would find adult men considerably more attractive and interesting than underage ones).
Ages of Consent for Various Purposes:
A commenter writes, "Abortion rights advocates declare any [pregnant] female is mature enough to obtain an abortion without parental consent. That means girls are mature enough to make [decisions] in picking sex partners."
I don't think this works. Judgments about age cutoffs for various behavior (driving, sex, smoking, alcohol consumption, abortion, other medical procedures, contracting) rightly turn on a variety of factors, including the cost of prohibiting the behavior as well as the cost of immature behavior. We let people drive before we let them drink because not being able to drive imposes a much greater burden on older teenagers (and on their parents and prospective employers and educators) than does not being able to drink. Likewise, stopping a girl from having an abortion could harm her future life much more than stopping a girl from having sex would.
Now of course one could argue that letting girls have abortions without parental consent harms their future lives, too, or that it violates their parents' rights or whatever else. My point is simply that one can't just assume that the age cutoffs for the decision to have an abortion must be the same as the age cutoffs for sex, drinking, smoking, driving, or contracting. It's true that the age cutoffs for all of these do have to do with our judgment about maturity — but they also have to do with other matters that may justify different age cutoffs for different behaviors.
(Note that the current federal constitutional rule is that state law may require underage girls to get parental consent for abortion, though it must provide the option of a judicial bypass on the grounds that "the young woman is mature and capable of giving informed consent and has, in fact, given her informed consent" or "that an abortion would be in her best interests." But some state constitutional rules give broader abortion rights to underage girls, and, as the commenter suggests, some abortion rights advocates do support such broad rights for girls.)
The Academic Credo
(or at least An Academic Credo): A commenter on my age of consent post writes,
This is a perfect example of why people claim professors are out of touch with reality. When someone can accurately but facilely summarize your suggestion with "he wants to change the law so that adults should be allowed to have sex with high school sophomores," you lose. No further inquiry, no appeal, no nothing: you're automatically some lunatic that thinks something approaching pedophilia is OK.
Some curious thoughts are best kept to one's self....
I've heard this reaction before, not just as to discussions of the age of consent but also as to other matters. Other commenters seem to say something similar, some even calling — with no substantive reasons — for me to take down the post, with no real explanation). And it strikes me as worth discussing this attitude in more detail, because it does reflect something important about the academic approach, an approach that, contrary to the commenter's view, strikes me as exactly right.
Here's what I see as the academic credo, or at least the right sort of academic credo: It is better to know than to believe. It is better to understand why rather than just accept the what. Much of the time (though certainly not all the time), the things that we think are obviously and clearly "reality" are actually not. Even when our intuitions are right, we gain much from understanding why they are right. So curious thoughts about why our assumptions are right — and whether they are right — are indeed precisely what people (especially professors) should be thinking and expressing.
Let's use this very post as an illustration.
1. To begin with, let's talk briefly about the "reality" with which I'm supposedly out of touch. Recall that my post chiefly discussed 16-year-olds having sex with 30-year-olds, which many states prohibit. But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There'd be no need to "change the law" to allow this in most places; one would need to change the law to forbid it.
Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves "out of touch with reality," whatever exactly that means. I certainly don't want to argue that the majority view is always right. But it does suggest that we can't lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is "luna[cy]."
But wait, there's more: In France, the general age of consent is 15. In Austria, Germany, and Italy it's, generally speaking, 14. In Spain it's 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. Again, these decisions may well be wrong or even "creepy" (a term three other commenters used to discuss my post, which chiefly focused on 16-year-olds). Yet when nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there's an important discussion to be had here, and that the answer is at least not open and shut.
More broadly, by the way, this is indeed a familiar practice of professors: To point out that our intuitive assumptions — however firmly held — are actually not shared by many other people, including in places that aren't very different from our own, and to suggest that this might shake our faith in those assumptions (though again of course it's not proof that the assumptions are false). And I think it's a sound practice, one that should be taken seriously as an advantage to thinking through our beliefs rather than just casually accepting them.
2. More broadly, professors — and many non-professors — know well how many deeply held assumptions about "reality," assumptions that didn't seem to require "further inquiry," proved to be quite wrong. That's most obvious with regard to the physical and life sciences, but it's also true about economics and morality.
Focusing on morality, consider how deeply attitudes have changed over the centuries about such fundamental moral questions as slavery, the role of women, premarital sex, homosexuality, and even the very issue involved here, which is to say the age of consent. Recall that in England the age of consent until the late 1800s was set at 12.
Again, it may well be that modern law is right about the age of consent (which I stress again, is mostly set at 16 both in the U.S. and in Western countries more broadly, not at 18) and the views of the past were wrong. I'm pretty sure that they were wrong as to age 12, and 16 might well be a sensible dividing line. Yet what do you think are the chances that, however wrong we now recognize many past moral views were, our deeply held intuitive moral assumptions today are all completely right? Shouldn't that plant at least a seed of self-doubt? The "professors" who "are out of touch with reality" believe (at least when they're at their best) that public questioning in such matters is better than undefended confidence, or silence.
3. Finally, let's say that the commenter's substantive intuition — that sex between adults and high school sophomores (the 16-year-olds that I discussed in my post) — is right, and the dominant view of American and Western law is mistaken. Surely it's still better to publicly discuss what the reasons for this might be, and why they are right.
(a) Most obviously, it's necessary to persuade the "lunatic[s]" who support the legality of "something approaching pedophilia" yet somehow managed to make their views made into law in most American states and most European countries. I take it that just calling them lunatics and urging them to keep their views to themselves won't persuade them, right? It would help to have a detailed explanation.
(b) It should also be helpful to reassure thoughtful and responsible backers of higher ages of consent. If someone is being sent to prison based on a law you advocate, I'd think you'd want to have some confidence that you're right. And it's hard to have that confidence in any thoughtful way, it seems to me, if you've just shushed those who take a contrary view, as opposed to engaging it (even welcoming its airing) and explaining why it's mistaken.
(c) It's also necessary to deal with all the important details related to implementing the law. Say that allowing adults to have sex with 16-year-olds is indeed wrong. Should the age of consent then be 18? Or 17? Or 17 1/2? If there is to be an exception for sex between people who are close in age, how much should the allowed difference be? If an act is criminal, how much resources should we devote to prosecuting it? How willing should prosecutors be to accept pleas to reduced charges? What should the prison sentences and other punishments be for committing the act? It's impossible to sensibly answer these questions without thinking hard about exactly why we're setting the age of consent at a particular point.
So, my bottom line: Asking these questions, and questioning our intuitions, is more in touch with reality — including the reality that our intuitions are often (though of course not always) wrong — than just taking our assumptions for granted. And when we professors ask for logical arguments even in support of that which many people see as obvious, it seems to me that we are doing exactly what our jobs call for.
UPDATE: I originally said that the age of consent in Canada was 14 until recently; as the revised text, makes it clear, it's actually 14 for a few more days. Thanks to Canadian prosecutor Andrew Barg for setting me straight on this -- always good to get even a little closer to "reality."
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.
"Statutory Rape" in The Reader:
Ann Althouse discussed Kate Winslet's rejection of the term "statutory rape" for the relationship in The Reader (Winslet's new movie) between a woman in her mid-30s and a 15-year-old boy. As best I can tell, Ann does take the view that the behavior is indeed properly labeled "statutory rape," both legally and morally. [UPDATE: Ann's update reveals that I misunderstood her; I now think her view is that the behavior may well be treated as "statutory rape" from a moral perspective, but she doesn't take a stand on the legal issue. Still, the interviewer whom she quotes seems to suggest that the behavior might be condemned on the grounds that it's a crime, so the legal issue seems to still be worth discussing.]
1. As to the legal question, in the country where the movie is apparently set — Germany — sex between an adult and a 15-year-old is now generally not statutory rape: The age of consent there is 14. I don't know what it was in Germany in the late 1940s, but I can say that in many American states it was 14 until the 1990s (the latest to change, I believe, was Hawaii, around 2000). Throughout much of American history, the age of consent was 15 or less (often significantly less).
As I note in this post, even if you focus solely on the Western World (the U.S., Europe West of the Iron Curtain but including all of Germany and excluding the pinpoint countries, plus the Western Anglosphere, which is to say Australia, Canada, and New Zealand), 38% of the population lives in countries with the age of consent set at 15 or less. If you include South Korea and Japan in the West, the percentage will climb even higher.
Now none of this tells us what the age of consent should be, or how seriously the law should take sexual relationships between adults and people slightly under the age of consent. But it does suggest that we can't just conclusively assume that a fictional relationship in a movie, set in a different time and place, can be treated as "statutory rape" simply because today all American states would treat it as such, though today many Western countries would not treat it as such, and until recently some American states wouldn't treat it as such.
2. I can't speak in detail to the moral question, since I haven't seen the movie, and I don't know the social context of the time. While some crimes, such as forcible rape, are in my view wrong regardless of the social or personal context, other matters — statutory rape, copyright infringement, underage drinking, and the like — tend to turn on much subtler factors, and the arbitrary lines that the law necessarily draws can't precisely track the underlying moral truth.
I will say that my intuition is that 15-year-old boys are unlikely to suffer lasting emotional harm from affairs with 30-something-year-old women, any more than from any first sexual relationship, whether at 15 or 16, and whether with a 35-year-old or another 15-year-old. (I wouldn't claim this extends to 15-year-old girls with older men, but I don't think one should blithely disregard factors such as the sex of the parties in making the moral judgment here.) Of course, maybe that's just my remembered teenage fantasies (not, I should stress, my personal experience) talking. Perhaps I'm mistaken on it. But again I'm hesitant to say that such relationships can categorically be seen as deeply immoral behavior regardless of person, time, and place.
3. The parenthetical in the Althouse post, "By the way, the actor playing the role was only 17 when most of the scenes were filmed. They did some last minute filming of the naked parts 'literally days' after he turned 18," raises separate questions. I would assume that this was all done legally, and as a moral matter, I doubt that the actor is going to suffer any real harm from the experience; I expect he's going to derive a great deal of professional and likely personal benefit from it. But again I can't claim any expertise on that.
Note: In the factual discussion above, I refer to the age of consent for sex between a typical adult and a minor. I don't include — since The Reader doesn't deal with this — sex between people close together in age, where the age of consent is often set lower. I also don't include situations where there's some familial or authority relationship between the parties, where the age of consent is often higher.
UPDATE: Ann Althouse responds in an update to her original post; I'm busy with family stuff today, but I hope to have a chance to read it and perhaps reply in turn tomorrow.