I appreciate Bryan's arguments in favor of gender neutrality here,
but does he have any thoughts on the prosecution problem? If a state law
prohibits, say, all sex with under-16-year-olds (with no Romeo/Juliet
provision), how can this ever be enforced when two 15-year-olds are having
sex? Presumably both will take the Fifth, and the likely witnesses -- often
parents of one of the children -- won't want to testify or even call the
police, given that their own child would be put at risk of prosecution.
What to do? I suppose it might be possible to have some other rule, such as
prosecuting the older one but not the younger one, even if the difference is
a few months. Would that be the suggestion, and would it be effective?
More broadly, assume that the danger to girls -- the physical danger
of pregnancy, the less imbalanced physical danger of STDs (as I understand
it, STDs are more easily spread from men to women rather than vice versa,
but I may be wrong), and the empirical sense that girls are more likely to
be reluctant participants than boys, and thus more likely to be emotionally
hurt by relationships gone bad (as relationships often do) -- does appear
greater than the danger to boys. If that's so, then would it be fair to
prosecute the 15-year-old girl (and often not the 15-year-old boy, for the
reasons I mention above, at least assuming the sex-neutral tiebreaker, such
as age, cuts in favor of prosecuting the girl) under a statute that's aimed
at protecting the girls themselves?
I should say that my sympathies are with equal treatment without
regard to sex here; and I should also say that I'm not wild about statutory
rape laws with fixed age tests (as opposed to difference-between-the-ages
tests). Still, the objections I mention above give me pause, so I was
wondering if Bryan could dispel them.
Eugene
> -----Original Message-----
> From: Bryan Wildenthal [mailto:[EMAIL PROTECTED]
> Sent: Tuesday, July 15, 2003 1:10 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Lawrence, Limon and SDP Review Stratification
>
>
> Attempting to respond only to the first paragraph of James
> Blumstein's very thoughtful posting (see below -- I don't
> have time to respond to the rest, which also raises very
> valuable points):
>
> Indeed, I started wondering about Michael M v Sup Ct after I
> sent my earlier posting about Lawrence and Limon, although
> Michael M and Limon raise somewhat distinct issues (Michael
> M: whether boy but not girl having sex with each other can be
> punished when of same ages; Limon: whether boy but not girl
> can be subjected to radically different punishments for
> having sex with a younger boy).
>
> Another possible ground to distinguish Michael M (which at
> any rate I think is blatantly inconsistent with both previous
> and later sex discrimination rulings), is that, as I recall,
> the key justification for treating boys and girls differently
> in consensual statutory rape, was that girls but not boys get
> pregnant, "nature's (possible) punishment" of the girl thus
> "balancing out" a governmental punishment applied only to the
> boy. That obviously doesn't apply to a same-sex encounter.
> And before someone suggests that the risk of HIV transmission
> might justify disfavoring age-differential gay sex as
> compared to equally age-differential straight sex, note that HIV (of
> course) can be and is also transmitted by straight sex, and
> indeed, I understand from recent news reports that the most
> rapidly growing risk group for HIV is now young women
> (especially minority women) who contract it in heterosexual
> encounters.
>
> Lest there be any confusion, I do not endorse either type of
> "nature's punishment" argument. Nor did the Michael M Court
> use such terminology. I am just paraphrasing with some
> intentional sarcasm and irony.
>
> Recalling the realpolitik voting line-ups on the Supreme
> Court, Michael M was a 5-4 decision with Justice Stewart in
> the majority and Blackmun concurring only in the judgment.
> O'Connor replaced Stewart later in 1981 and in 1982, wrote
> the 5-4 decision in Miss. U. of Women v Hogan, greatly
> strengthening (in practice, if not in theory) scrutiny of sex
> discrimination. Hogan is one of the cases that I find
> irreconcilable with Michael M, as are later cases, like JEB v
> Alabama (1994) (per Blackmun, J) and US v Virginia (1996).
> On the other hand, Nguyen v INS (2001) is another 5-4 setback
> for sex equality, again blatantly inconsistent with the others.
>
> Being an eternal optimist, I would just hope the Supremes
> eventually overrule Michael M (and Nguyen for that matter).
> I agree that as long as it remains on the books, the Kansas
> and other courts may find it a convenient excuse to uphold
> anti-gay "Romeo and Juliet" statutory rape laws.
>
> Bryan Wildenthal
> Thomas Jefferson School of Law
>
> -----Original Message-----
> From: Blumstein, James
> To: [EMAIL PROTECTED]
> Sent: 7/12/03 12:27 PM
> Subject: Re: Lawrence, Limon and SDP Review Stratification
>
> I think the application of Lawrence/Romer to
> disparate treatment of heterosexual statutory rape vs.
> homosexual statutory rape has to come to grips with Michael
> M. v. Superior Court (1981), which allowed for punishment of
> males but did not provide for punishment of females in the
> statutory rape context. Since Michael M. was a plurality
> opinion, one way to deal with it is to say it was not a
> majority holding. But if the outcome is taken as precedent,
> then there is a set of difficult doctrinal issues to deal
> with. The most significant is that Michael M. dealt with a
> gender-based classification, which is quasi-suspect and
> subject to intermediate scrutiny. The concurrence in
> Lawrence did not purport to treat classification based on
> sexual orientation as quasi-suspect like gender... more like
> mental retardation under Cleburne. The level of scrutiny
> issue (and its implementation) becomes very important doctrinally.
>
> ....
>
