I've been puzzling over the effect, if any, of Lawrence on stat rape in California, too. Assume the man is 40 and the woman 17, quite sexually active, experienced, and inviting, and the sex (oral copulation only) occurs in the privacy of his home. She doesn't complain but her therapist under mandatory reporting, in another state, blows the whistle. He gets prosecuted not for stat rape but oral cop.
In California, the age of consent is 18. Is that arbitrary? Or is it sufficiently rational as a matter of legislative convenience, i.e., the line has to be drawn somewhere and the legislature was justified in drawing it there. Should the test be not an artificial age test, but instead be some sort of functional test, i.e. harm to the younger party, subject to proof. Note the 'victim' is sometimes a boy, as in a male student, female teacher relationship. Does Lawrence cast doubt on the right of a state to prescribe legislation on the basis of the morality of a presumed majority, or is this governmental bowing to bias and stereotypes held by the presumed majority, a la Palmore v Sidotti, where this was condemned in the area of race? Are laws regulating sexual morality artifacts of religion, such that they can be challenged as an establishment of religion, as someone raised here not too long ago. Suppose the age of consent to engage in sex varies among states, or the age to marry w/o parental consent? Aren't different cultures entitled to allow young marriage? See pre-pubescent marriage among the Roma, i.e. Gypsies, where marriage is arranged early, not to be consummated until physical maturity, allegedly). Or some other cultures say, originating in India. Which of our cultures controls? (I know, ours.) Why is our solution to issues of sexuality, criminalizing consensual behavior more rational than others? Or is it right simply because it's ours. Suppose there is no demonstrable harm? Does a law forbidding consensual sex at age seventeen pass the rational basis test because someone MAY be harmed? We have lots of prophylactic law based on what may happen, such as not discharging firearms in cities, or shooting at people, or speeding. The California based stat rape case of Michael M. v. SC (Sonoma) was decided on the basis of no EP violation because women can become pregnant while men cannot. Suppose the sex is other than normal sexual relations, thus lacking actual risk of pregnancy, only potential and hypothetical, i.e. if sexual relations had occurred. Example: she voluntarily orally copulates him, this continues over time, and she never complains. The Court in Lawrence carefully notes it is not a case of underage sex. Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Volokh, Eugene <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 7/15/2003 2:28:12 PM > 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. > > > > .... > >
