"....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....."
I don't see how, after U.S. v. Virginia and the recent Nevada v. Hibbs, a court can rely on a stereotype like this, no matter how accurate it is as a generality.
Ann
> From: "Volokh, Eugene" <[EMAIL PROTECTED]>
> Reply-To: Discussion list for con law professors
> <[EMAIL PROTECTED]>
> Date: Tue, 15 Jul 2003 14:23:37 -0700
> To: [EMAIL PROTECTED]
> Subject: Statutory rape laws
>
> 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.
>>
>> ....
>>