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Debate Club

What Should the Law Do About Teen Sex?

Wendy Murphy and Martha Davis debate.

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This winter, a 15-year-old sophomore girl at Milton Academy outside Boston reportedly engaged in oral sex acts with five older hockey players. The boys—between the ages of 16 and 18—have been expelled from the school; the girl has been put on leave.

Under Massachusetts law, it is illegal for anyone over age 16 to have sex with someone under that age. But some critics wonder if such laws designed to protect children have become outmoded. Are these laws smart ways to protect children or overreactions to the sexuality of minors?

Wendy Murphy is Adjunct Professor at New England Law School. Martha Davis is Associate Professor of Law at Northeastern University School of Law.

Murphy: 3/8/05, 05:17 PM
Sexual liberation in general is a good thing but we have to be careful not to let liberation become a means of exploitation, especially where kids are involved. The age of consent is an arbitrary line. Some 15-year-olds are more mature than some 17-year-olds. But the line is drawn to protect children as a class, not every individual kid. While it might mean some mature 15-years-olds will be inhibited from engaging in sexual behavior for fear of prosecution, so what? There are lots of things children cannot do until they reach a certain age (e.g., drinking alcohol, driving) even though they may be capable and we don't fret that this is somehow offensive to the almost-old-enough minors.

Contrary to the claims of some so-called "libertarians," sexual maturity is not a culturally constructed idea that facilitates a completely contrived definition of harm. It is beyond dispute that sexual abuse of children causes real injury (often irreparable) but "liberation" theorists argue that harm is "socially constructed" because, after all, even a small child can experience sensory pleasure from a sexual touch. This unsophisticated analysis ignores that some forms of pleasure can also be quite harmful. For example, ice cream and cake are delicious to the senses of the mouth, but eating them could kill a diabetic.

Children have no money and they can't vote. Their vulnerability to exploitation is significant and we claim to care about their well-being. Yet we have an ugly history in this country of allowing children to be harmed in the name of "freedom," as if the power of the state is always insulting to the goal of individual freedom.

In truth, freedom for the disenfranchised typically requires legal support to compel the powerful to behave—e.g., civil rights laws. Simply put, for some groups in society, freedom is dependent on state power (let's call it "state responsibility") and while it sounds nice to say sexually active kids are experiencing "liberation," the truth is, "liberation" that facilitates exploitation renders kids less free by subjecting them to the whims, urges, and demands of the powerful.

Not long ago (and to some extent this remains true today) children were perceived in law as nothing more than the property of their parents. As we have evolved into a more civilized society, not only have we drawn age of consent lines for sexual activity, but the age has increased over time.

The claim that children at the age of consent margin may be capable of consenting is true but irrelevant. We depend on the discretionary decisions of prosecutors to avoid prosecution when, for example, two fifteen year-olds are engaged in factually consensual sexual activity. If this discretion were being widely abused, it might be appropriate to revisit whether the law works as it should. But this is not the case.

And we need to stop saying that because children are sexually active at ever younger ages that this is a reason to lower the age of consent or otherwise change the laws to facilitate more activity and endorse the behavior of promiscuous children or the sexual abuse of kids. To the contrary, if the behavior is increasing because cultural messages and pressures have created norms that make children engage in harmful behavior, it might be time to ramp up the power of law and education and create new avenues of deterrence.

That society is engaging in bad behavior is hardly reason to render the bad behavior lawful. If we started killing each other or stealing with such frequency it became an epidemic, would we repeal crimes against killing and stealing?

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Davis: 3/9/05, 11:24 AM
Good morning—and thanks for leading off this discussion! As I understand your argument, you believe that the law should punish sexual exploitation of children, in large part because coercive sex can result in significant and lasting harm to minors. You are much less concerned with sex between teenage peers, but even though existing laws may define those less offensive acts as statutory rape, you're willing to let prosecutorial discretion sort those out provided that prosecutors act sensibly.

As always, you've presented some powerful arguments in support of your position. And I agree that exploitation and coercion are the central problems with underage sex. But I don't share your confidence that the existing statutory rape laws are doing a good job of addressing these problems. And I'm less sanguine about just relying on prosecutors make the right choices. Among other things, the sexist history of statutory rape laws leaves me skeptical about both their application and the messages that they convey about girls' sexuality.

In honor of Women's History Month (yes, it's March!), I'll sketch out a bit of the history here. Statutory rape laws are ancient, dating back more than a thousand years. The stated purpose of these early laws was to protect young women's virginity, saving this valuable commodity for marriage. While more recent statutory rape laws have also sought to protect children in recognition of their special vulnerability to coercion, most of these laws were gender specific until quite recently, criminalizing adult sexual relations with girls but not boys. The most recent federal attention to statutory rape laws was in the 1996 welfare overhaul, where states were urged to step up statutory rape enforcement in order to decrease teen pregnancy.

In short, for much of their history, statutory rape laws relied on the pervasive stereotype that girls are especially vulnerable and incapable of making sound choices about their sexuality without legal regulation.

Now, I'm willing to entertain the possibility that the stereotype is true. We both know about the data on men's aggression toward women, manifested in extreme cases in violence and sexual abuse. Young people (most often, young women) may be least able to exercise free will in these situations. But even if that's the case, I'd rather focus efforts on increasing girls' ability to make their own decisions and on dismantling the patriarchal system that gives men and boys power over girls and women. The statutory rape laws instead tend to accept, and even preserve, a status quo of female vulnerability.

Having said that, I am still concerned about the raw exercise of power coercing sex from young people. And I think the statutory rape laws that focus more narrowly on that element are defensible. For example, some states have laws that define statutory rape according to the age differential between the parties, generally providing that to qualify as statutory rape the perpetrator must be three to five years older than the underage victim. More nuanced statutes could, like sexual harassment laws, also hinge on aspects of the relationship such as supervisor-supervisee, teacher-student, and so on that create a presumption of exploitation and abuse, regardless of the parties' ages.
If statutory rape laws focused on power differentials and rape laws continued to criminalize unconsented sex, that would leave consensual peer underage sex—the category about which you expressed the least concern—beyond the scope of criminal law. That does not mean, however, that it is beyond the scope of public policy. There is much information available about how to improve girls' self-esteem and empower them to say no when they want to. And there are many ways to educate both boys and girls to behave responsibly. Statutory rape laws should not be our only avenue for protecting children. The first line of defense should be the kids themselves.

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Murphy: 3/10/05, 09:16 AM
I appreciate your thoughtful response. As for "whether existing statutory rape laws are doing a good job of addressing these problems," it's true that procedural discretion is hard to "supervise" and the idea of "trusting" the government makes many people uncomfortable, but when it comes to violence against children, the behavior of private persons in causing sexual abuse and exploitation is far more harmful than the risk that a prosecutor might be heavy-handed. In other words, it is clear that unredressed sexual violence against children in the form of pornography, prostituted kids, and incest/family sexual abuse is a much bigger problem than the rare event of a prosecutor pursuing charges against a couple of teenagers engaged in factually consensual sexual activity. That said, if a systemic problem developed such that prosecutors abused their discretion in this regard, I would agree with you that states with strict age limits might want to consider adopting limits around age disparity rather than age per se, though this approach has its own arbitrariness problems in terms of how it structures mandatory presumptions of unfair power differentials.

As for the deterrent power of laws that protect children from abuse, the data is clear that laws against sexual abuse of children, including most recently, laws that require the mandatory reporting of child abuse, have helped reduce incidence rates and increase reporting which is evidence of the law's effectiveness, though I agree that prosecution is not the only weapon and that education is very important.

I also agree that rape law is steeped in a gendered history such that the black letter rules appear to protect females more than males. This is the direct result of the evolution of rape law from the perspective that men "own" their women (daughters and wives) and that men controlled their "value" by preserving their virginity. Vestiges of this "ownership" idea remain but no state today protects female victims differently than male victims, which is as it should be (though it is important to remember that the vast majority of victims are female and that rape is fundamentally a gender-motivated crime suffered disproportionately by females). To the contrary, there is some evidence that sexual violence against male victims is prosecuted more harshly, thus is better deterred, because of the culturally imposed sexist view that sexual violence against males is "worse" than sexual violence against females. Put more politically, male entitlement to sex is not threatened by the effective prosecution and deterrence of male on male sexual violence.

Where rape law has failed and continues to fail women and children is in its inability to promote the underlying goal of personal autonomy and bodily integrity for individuals, particularly women and girls. Rape law in almost every state defines the crime of rape as "penetration without consent and with force." If autonomy and true self-determination were the goal, rape would be defined as "penetration without consent." That the additional element of "force" is required is a powerful statement that a woman's autonomy and fundamental right to self-determination is subjugated to the desires of the male because the absence of the woman's consent is inadequate to constitute an offense. This is particularly harmful to women's equality, especially when compared to the analogous ways we protect money and property. If I take your money without your consent, I have committed the crime of larceny. If I take it without your consent and with force, I have committed the crime of robbery. If I take your autonomy/bodily integrity without your consent, I have committed no crime unless I also use force. This is an insult to the value of women's lives as it plainly conveys the idea that money and property are more important than women's freedom.

We should be examining why rape law in its basic design is inadequate to deter sexual violence and why in the advent of sexual liberation we have failed to promote the equally important idea of mutual respect rather than sexual entitlement.

People have long understood that in a society that honors individual rights and freedoms, the right to swing one's fist ends before it hits someone else in the nose. This goes for all body parts yet while the law is black and white when it comes to nose punching, the rules in adult rape law are gray and murky. Murkiness preserves sexual entitlement thus perpetuates sexual violence by making the nature of the violation against the woman difficult to define and identify.

Eliminating black and white age of consent rules will serve to make murky that which is currently crystal in the area of sex crimes against kids and it is no solace that the resulting murkiness around the capacity of children to consent will be characterized by some as "sexually liberating". I call this strategy by so-called "libertarians," the "euphemistic decriminalization" of violence against children.

Teenagers at the margins of age-of-consent laws have always been free to engage in truly consensual sexual activity with peers. Age of consent laws have no impact on this behavior because it is virtually impossible to police private behavior that is never reported as offensive to state officials. Thus, changing the age or eliminating it altogether will not facilitate children's sexuality, assuming increasing children's sexuality is even a desirable goal.

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Davis: 3/11/05, 10:48 AM
I see where you are heading with this, now. Your position is that all rape laws should be more like statutory rape laws—that is, they should permit a finding of rape without proof of force. Penetration and lack of consent should be enough to establish the crime. I couldn't agree more.

But statutory rape laws go further and assume that the age involved precludes the possibility of consent. And while I believe that's appropriate when you have other indicia of coercion (like a significant age or power difference), when we're talking about two (or more) kids of relatively equal age, with adequate evidence of actual consent, a criminal approach is entirely counterproductive.

To ground our discussion, I want to steer us back to where we started—the "hooking up" incidents at Milton Academy. It sounds as if we agree (based on what the papers report as consensual sexual activity between peers) that prosecutors would be wrong to bring statutory rape charges against any of the participants, even though that option is theoretically available to them. We disagree about whether prosecutors should even have that power under these facts. I believe that we should be very careful about giving government more power than it needs—especially when that power involves scrutiny of intimate decisions—and that we should take care prospectively, not just wait and see if the government abuses it power before we circumscribe it. You're a proponent of bright line rules—well, the government needs bright line rules as much as any potential perpetrator.

The fact is, however, that any power the government has to deter incidents like this is almost entirely theoretical. When considering sex with their peers, "what's cool" and "fitting in" certainly weigh on minors' minds much more than state criminal laws. Indeed, despite statutory rape laws that might apply to them, minor kids at schools around the country are "hooking up" with increasing frequency. It would be great to channel that energy in another direction—among other things, too-early sex can have devastating effects on girls' self esteem, school performance, body image, and long-term aspirations. But I would wager that statutory rape laws have no effect on students' behavior, especially since, as you acknowledge, the laws are seldom used in these situations.

Just last week, when striking down the juvenile death penalty, the Supreme Court observed with characteristic understatement that "a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults . . . [and] these qualities often result in impetuous and ill-considered actions and decisions." This immaturity is the rationale for denying minors the right to vote or drive, and it's also the rationale for ratcheting down punishment for behavior that might merit more attention in an adult. Because the Milton kids' ability to give consent or formulate intent has to be taken with a grain of salt given their youth, applying statutory rape laws to them is likewise misguided. There are lots of ways to discourage this behavior, especially when it occurs on the school campus, but prosecution for statutory rape is simply disproportionate to the offense.

Finally, you argue that criminalizing sex between kids is fine because we already deny them a host of rights enjoyed by adults, like voting and drinking and driving (not in that order, of course). But none of these activities are analogous to sex, which is a core human function, central to individual autonomy. Yes, these kids will be adults eventually and can make their own decisions then, but meanwhile, they are developing sexual beings who should have at least some ability to make intimate decisions. The legal system is certainly flexible and creative enough to take this into account without jeopardizing children's safety from exploitation and abuse.

Murphy: 3/11/05, 12:32 PM
Agreeing once again that the age of consent line is arbitrary, I have to take issue with your position that arbitrariness is somehow harmful to individual freedom or needlessly empowering to the state.

It would be one thing if by drawing arbitrary lines children were forced by law to give up an important right or liberty interest. But children have no constitutional right to engage in sexual activity, just as they have no right to drive or drink alcohol. Thus, it is unhelpful to talk about the loss of sexual "freedom" for kids because such a a statement implies falsely that children enjoy constitutional space in this discussion. They don't.

I do agree with you in theory that "the first line of defense should be the kids themselves," but such an approach could only work in practice if kids as a class had the capacity to defend themselves not only from physical harm but exploitation and psychological harm. The obvious problem with kids is that they don't even recognize sexual harm, let alone sexual exploitation. This lack of maturity is not arbitrary. Science tells us that even though kids can feel sexual feelings as young as in infancy, they are not capable of making non-harmful choices until emotional maturity.

You are right that maturity comes sooner for certain 15-year-olds (and slower for certain 17-year-olds) but so what. As I noted, the fifteen year-old loses nothing important by the cut-off. I assume you do not disagree that there should be no discretion when the child is 6 years old. You must have your own idea of an arbitrary age cut-off and wherever you draw it, others will claim you have not taken into account the unique capacities of certain kids at the age margin. How would you defend the arbitrariness in your decision not to let 6- year-olds choose to consent?

Finally, I disagree that when the law "allows" for prosecution of cases at the age margin, it necessarily should be described as giving the government "power," let alone "more power than it needs." As I discussed, such authority is necessary but more importantly, it is not so much power as responsibility. The state as "protector" is too easily devalued by calling all that the state does in the name of protection "power." Is it "state power" that the government gives money to families in need? The law is designed to deter and in that capacity state power both punishes and protects. The responsibility of protection cannot be ignored and should not be misconstrued as "power" especially in the context of the state's responsibility to protect the particularly vulnerable from violence.

You say we should be especially careful when the state is involved in "intimate decisions" but this assumes equality of decision-making power on the part of kids vis a vis adults and I think we both agree that there is no such equality. Thus, not to have an arbitrary age cut-off is to facilitate the imbalance for all kids, at least those of a certain age if I understand you correctly, because you would allow many kids to be harmed to protect the "intimate decision-making" of a few. I would argue the opposite. Better to protect all the vulnerable - even at the expense of uninhibited decision-making for a few not only because the decision-making is not a fundamental freedom (thus cannot be compared to the analogous argument about letting 100 guilty men go free to protect a single innocent) but because there is no evidence that truly consensual decision-making at the age margin is being punished - or even deterred - by the state. The absence of data to the contrary as well as the boldness of the behavior at Milton (five young men and not a single one felt deterred by the victim's age though they all knew the law's limit) more than proves this point.

That kids have a kind of "invincibility" state of mind is no reason to indulge it. They may well care less about age limits on alcohol, driving, and sexual activity but this is why the law must have bright-line rules. The cavalier and risk-taking nature of the teenage person is not only evidence of immaturity but militates in favor of restraint, not indulgence, lest we toss kids under the bus and abdicate our duty of protection in the name of liberation though recognizing that liberty is not even in the balance. Abdication without liberation in this context is affirmative state harm.

Davis: 3/11/05, 05:22 PM
I think we've pretty well covered this subject, but I can't resist the opportunity to have the last word in the debate.

If I read your last post correctly, you are sticking with the position that kids of any age should be barred by statutory rape laws from engaging in sexual activity. You would impose this bar even if there are no indicia of exploitation or coercion. And you would give the state the "responsibility"—or in my words, "power"—to prosecute those kids for statutory rape. You argue that this prohibition on sexual activity does not violate any rights because kids have no "constitutional space" within which to engage in sexual activity.

I think that position is untenable. You might as well argue that the law should bar children from being more than 5 feet tall until they are adults. Unlike driving or drinking, sex—like other aspects of maturity—is developmentally driven and natural. There is no reason to impose an absolute legal bar on it until a certain age. And yes, because it is natural, even some 6-year-olds might engage in sexual activity with each other, or with 5-year-olds and 7-year-olds. I would not prosecute these kids for statutory rape—there are other ways to educate them. For reasons that are beyond me, it sounds as if you want to have the option to prosecute.

But contrary to your characterization of my argument, I believe that the law should be focused on deterring instances of sexual abuse and exploitation involving minors. On this ground, criminalizing sex involving minors with significant age gaps is justified, as is criminalizing sexual activity involving minors when there are other indicia of coercion such as a supervisor-supervisee relationship, or actual lack of consent. These are the cases where government's role as "protector" is warranted.

While you have argued that government should have responsibility for policing sex between minors regardless of whether it's consensual, I wonder where you would draw the line to keep government out of the private sphere. As you know, government has played a significant role in frustrating women from making a host of intimate decisions about childbirth and abortion and has often criminalized consensual sexual activity between same sex partners. Many people believe that those decisions should be private, but there is a vocal minority who argue that they are matter for public policy. This is a slippery slope argument, yes, but it's one that must be answered when you advocate for more government regulation of private consensual sexual activity.

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