Age of consent and sex with adults vs. sex with teenagers
VOLOKH at law.ucla.edu
Fri Apr 25 06:11:42 PDT 2008
I share many people's sense that a 25-year-old man having a sex
with a 16-year-old girl (and especially a 14-year-old) is icky in a way
that a 16-year-old boy having sex with a 16-year-old girl (or even a
14-year-old) is not. And perhaps the law should indeed treat these as
different, to the point of restricting parents' First Amendment rights
to teach their 13-year-olds the propriety or at least tolerability of
such relationships -- or just constraining 16-year-olds' sexual autonomy
in one way but not in the other. (If I recall correctly, there is some
Florida state constitutional right to privacy caselaw holding that
16-year-olds have the right to have sex with each other but that adults
don't have the right to have sex with 16-year-olds. See B.B. v. State,
659 So.2d 256 (Fla. 1995).)
But I wonder whether this is actually borne out by some data (if
data is even gatherable on this). I would think that quite a few
16-year-old girls who are interested in sex would rather be involved
with 25-year-old men than with other 16-year-olds; the 25-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 25-year-old may be much more attractive to
them. And the same may even apply to 40-year-olds, icky as that might
seem. Plus if a serious relationship ensues, the 25-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 25-year-olds or the
40-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 25-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.
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 and adult/teenager sex
appealing -- though look what happened to Romeo and Juliet. I just
wonder whether we have enough data here, especially where restrictions
on parent constitutional rights are being considered?
> -----Original Message-----
> From: Earl Maltz [mailto:emaltz at camden.rutgers.edu]
> Sent: Friday, April 25, 2008 5:36 AM
> To: Hamilton02 at aol.com; Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: Re: Age of consent for sex and for marriage
> 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
> 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
> >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
> >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
> >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
> >Princeton University
> >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
> >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
> >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
> > 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?
> > Eugene
> >Need a new ride? Check out the largest site for U.S. used
> car listings
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