a public defender

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

There is an interesting series of posts over at the Volokh Conspiracy (I know, I know), in which minds far greater than mine tackle the question of age of consent laws and the reasons for choosing the prevalent age cutoff.

Eugene “Gene” Volokh starts it off by wondering:

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?

Those in the field of criminal law (and observers) have long noted the arbitrariness of choosing 16 as a cut-off age for sexual activity. Rome and Juliet laws seek to decriminalize behavior between young teens, but almost universally, sex between an adult (18 and above) and a young teen is condemned and criminalized. On the other hand, there is a growing number of crimes for which those same 15 and 16 year olds are treated as adults.

What is the reason for this discrepancy? Are we saying that teens have the maturity to perform one sort of act but not the other? As one commentator puts it, a 16 year old may not know any better than to have sex with a 30 year old, but should know better than to rob and kill.

It is an interesting theory and might well be the best explanation, but it is not free of problems. Generally, if you have the intent (and maturity) to commit a severe act, then does it not follow that you must have the maturity to commit a lesser act? If consensual sex is seen as less severe than robbery, then if teens are treated as adults for crimes, must we not give them the same leeway in their sexual relations?

Of course, the problem is that maturity is subjective. Some 15 year olds are far more mature than some 30 year olds. In the law, you have to draw a line somewhere and create clear demarcations. So perhaps we as society have accepted that 16 is a good clean line to draw. But there’s a problem with that:

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. [W]hen 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.

So, I turn it over to you, my enlightened readers. What think you?