Age of consent for sex and for marriage
emaltz at camden.rutgers.edu
Fri Apr 25 05:36:02 PDT 2008
This post raises a number of different issues that should be
separated for analytic purposes
1. It seems to me that if the central question is the age of
consent, raising the specter of "polygamy" is simply a
distraction. Sexual abuse can take place in monogamous relationships
as readily as in polygamous relationships.
2. We need to distinguish between the question of consent per se and
the question of relationships between adults and children. I think
that we all realize that many teenagers--even young teenagers--are
likely to be sexually active with one another (except for my kids, of
course). (Thus the low regard in which the chattering classes hold
abstinence only sex education). For example, in the absence of
evidence of coercion, I don't think we should come down hard on a 14
year old boy who has sexual relations with a 14 year old girl..
3. We need to distinguish between the age of consent for nonmarital
sexual relations and the age of consent for marriage, which entails a
broad range of legal rights and responsibilities.
4. I am strongly inclined to believe that the appropriate age of
consent for marriage is more a matter of culturally determined norms
about the purpose of marriage in society and the proper nature of
relations between men and women than about objectively determinable
universal truths. Thus, I am unwilling to adhere unthinkingly to the
opinions of "experts" in this area.
At 09:01 PM 4/24/2008, Hamilton02 at aol.com wrote:
>Eugene-- The answer is not best answered by lawyers or law
>professors. It's a matter for those who deal directly with
>children. The increase in the age of consent in the United States
>is the direct result of children's advocates and experts who see up
>close what happens when we have relatively low ages of consent. The
>answer is more sexual abuse, as in more unwanted sex on children
>perpetrated by adults. Pushing up the age of consent creates a
>greater buffer around children to resist sexual assault from
>adults. Pushing it down creates more defenses for adults intent on
>sex with children.
>In any inherently unequal power position, like that between adults
>and children, there needs to be calibration to protect the lesser
>partner from exploitation and abuse. That is what ages of consent do.
>With respect to Europe, there is nothing that would indicate that
>they have less child abuse than the United States. Indeed, if the
>rates of clergy abuse in Ireland are any indication, child abuse is
>a more serious problem in Europe. Therefore, I would be loathe to
>look there for guidance on how to protect children (assuming that is the goal).
>If the issue is physical contact, permitting religious (or any
>other) adults more latitude to have sex with children is
>indefensible, once again if their bodily integrity is valuable. If
>the issue is whether parents can teach children about illegal
>behavior without engaging in it, obviously speech doctrine might
>permit them more latitude depending, but the welfare of children
>takes more than mere protection of bodily integrity. That is why
>every jurisdiction recognizes the crime of endangering the welfare
>of a minor, and related offenses. The compelling interest in child
>safety and protection trumps whatever constitutional right is
>asserted by the parent in this category at least.
>For these reasons--the PA case where the court permitted the father
>to teach his daughter about fundmentalist polygamy (against the
>mother's wishes) and held out the prospect that the girl might be
>taken to one of the compounds was plainly wrongly decided. The
>First Amendment should not be a refuge for those who advocate or act
>on impulses to sexually abuse of children.
>Marci A. Hamilton
>Visiting Professor of Public Affairs
>In a message dated 4/24/2008 7:47:25 P.M. Eastern Daylight Time,
>VOLOKH at law.ucla.edu writes:
>Marci asks an important question, but I'm genuinely puzzled about
>how to figure out the answer. Until the early 1990s, many states
>put the age of consent for sex at 14 (without any limitation on the
>age of the partner; when the partner is young, the age of consent is
>sometimes that low even today, unless I'm mistaken). Now as I
>understand it the majority of states put the age of consent for sex
>at 16; an important but small minority puts it at 18; a few, if I'm
>not mistaken, put it at 17. My sense is that throughout Central and
>Western Europe, the age of consent varies from 13 (Spain) to 14
>(Germany, Austria, others) to 16. My sense is also that the
>majority (perhaps the overwhelming majority?) of American states
>allow marriage with parental consent starting at 16. Who's
>right? How can we possibly tell?
> And, relatedly, should there be a different standard for what
> parents are allowed to tolerate (as opposed to affirmatively
> foster, as in the FLDS and some other contexts) without its being
> considered child abuse, or for that matter what parents are allowed
> to teach in the absence of any present or imminent action without
> the teaching being considered child abuse?
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